Preview Newsletter
ACC AM Oct 19
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Hearing to Consider Pending Nominations
Oct 20, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: 366 Dirksen Senate Office Building/ 10:00 AM -
Oversight of Regulatory Impact Analyses for U.S. Environmental Protection Agency Regulations
Oct 21, 2015 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building/ 10:00 AM -
Abandoned Mines in the United States and Opportunities for Good Samaritan Cleanups
Oct 21, 2015 | U.S. House of Representatitves Transportation & Infrastructure Committee
Location: 2167 Rayburn House Office Building/ 10:00 AM -
Full Committee Markup
Oct 22, 2015 | U.S. House of Representatitves Transportation & Infrastructure Committee
Location: 2167 Rayburn House Office Building/ 10:00 AM -
EPA’s CO2 Regulations for New and Existing Power Plants: Legal Perspectives
Oct 22, 2015 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 2:00 PM -
(ACC Mentioned) Market Outlook: Commodity Bubble Pops As China Model Changes
Oct 19, 2015 | ICIS Chemical Business
By Paul Hodges
Chemical companies face a major challenge now that China’s business model has changed. The country is no longer aiming to achieve high levels of economic growth by operating an export-focused development model, supported by vast infrastructure spending. -
TSCA Reform: Overlooked Provisions, Issues
Oct 16, 2015 | BNA Energy & Environment Blog
By Pat Rizzuto
The considerable attention given to state preemption, vulnerable populations, deadlines and other aspects of pending bills to modernize the Toxic Substances Control Act has overshadowed other aspects of the Senate and House bills. Senators have said they plan to take up S. 697 when they return to Capitol Hill the week of Oct. 19. -
Volunteers Sought to Wear Wristband Measuring Chemicals
Oct 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Unions, researchers, first responders and advocacy groups are among the types of individuals and groups being sought for a Chemical Detection Initiative announced Oct. 16 by the Environmental Defense Fund. “A remarkably simple wristband can reveal the invisible problem of hazardous chemicals in our lives,"... -
Seeking A Safer Flame Retardant
Oct 19, 2015 | The Boston Globe
By Megan Scudellari
At this very moment, you are likely sitting on a chair made with flame retardant, holding a cellphone doused in flame retardant, or inhabiting a building whose wiring and insulation are infused with flame retardant — perhaps all at once. The ubiquitous nature of these chemicals is mostly due to a well-intended effort to prevent the start and spread... -
Dems Urge Retailers To Stop Selling Microbeads
Oct 16, 2015 | The Hill - Regulation
By Lydia Wheeler
Senate Democrats are calling on retailers to stop selling bath products that contain small plastic beads. Sens. Chris Murphy (Conn.), Kirsten Gillibrand (N.Y.) and Richard Blumenthal (Conn.) sent a letter to the Retail Industry Leaders Association and the National Retail Federation on Friday asking the groups to urge their members... -
Wells Fargo Launches Prop 65 Phthalate Insurance
Oct 16, 2015 | Chemical Watch
Wells Fargo Insurance (WFI) has launched an insurance programme providing financial protection against potential Proposition 65 litigation to companies that use six phthalate plasticisers. The coverage would mitigate the risk of costs associated with litigation brought against manufacturers, distributors... -
Academies Inorganic Arsenic Assessment Panel to Meet
Oct 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The National Academies of Sciences, Engineering, and Medicine is accepting comments on new members it has provisionally appointed to serve on a committee that will review an updated Environmental Protection Agency assessment of the human health hazards posed by inorganic arsenic. -
(ACC Mentioned) Hill Moves Toward Delaying Rail Safety Deadline
Oct 18, 2015 | Politico
By Lauren Gardner
Last spring's deaths of eight passengers in an Amtrak derailment in Philadelphia called attention to a glaring hole in the nation's rail safety network: railroads' failure to install an advanced anti-collision technology that Congress had mandated in 2008. -
(ACC Mentioned) Editorial: Avoid a Railroad Shutdown
Oct 17, 2015 | The Bulletin
It sounded good back in 2008 when Congress approved the Rail Safety Improvement Act — require the nation’s railroads to install something called Positive Train Control by the end of 2015, and make the country a safer place in the process. Problem is, no one — not the railroads, not the Government Accountability Office... -
House Highway Bill Seeks Changes to PHMSA Rule
Oct 19, 2015 | BNA Daily Environment Report
By Rachel Leven
A House committee released Oct. 16 a bill that would reauthorize hazardous materials transportation programs for six years, which includes provisions to make changes sought by industry to requirements in the final Transportation Department's crude oil-by-rail rule. -
Four Hazardous Materials Takeaways From The House Highway Bill
Oct 16, 2015 | BNA Energy & Environment Blog
By Rachel Leven
The House Transformation and Infrastructure Committee today released a highway bill that would reauthorize hazardous materials transportation programs from 2016 through 2021. Here are four hazmat takeaways you shouldn’t miss: 1. It includes major victories for the hazardous materials industry. -
House Transportation Bill Nibbles Around Oil Trains Rule
Oct 16, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
The House's multiyear transportation bill stipulates that DOT must require each train tank car produced or retrofitted to the new, stricter standards must have a thermal jacket at least a half-inch thick. It also would require the DOT to issue regulations requiring railroads transporting Class 3 flammable liquids to... -
Agreement On Automated Train Extension 'Very Close'
Oct 16, 2015 | The Hill - Transportation
By Keith Laing
Lawmakers in the House and Senate are "very close" to reaching an agreement on extension of a federal deadline for automating trains on most of the nation’s railways, aides in the lower chamber say. Rail companies currently have until Dec. 31 to install an automated train navigation system known as Positive Train Control (PTC)... -
Railroads Ramp Up Shutdown Threats
Oct 16, 2015 | The Hill - Transportation
By Keith Laing
Railroads are ramping up pressure on Congress to extend a federal deadline for automating trains on most of the nation’s railways, warning they will have to shut down service at the end of the year unless lawmakers relent on the mandate. Rail companies currently have until Dec. 31 to install an automated train navigation ... -
Editorial: Congress, Slow This Train
Oct 16, 2015 | The Chicago Tribune
It's been a few years since we faced a transit doomsday in Chicagoland, but here we go: Metra says it will have to stop running trains after Dec. 31 unless Congress extends the deadline to install a safety system called positive train control. The threat is actually much bigger than that. Most Amtrak service outside the Northeast Corridor would... -
Two Arctic Offshore Lease Sales Canceled
Oct 19, 2015 | BNA Daily Environment Report
By Alan Kovski
The Interior Department is canceling lease sales for the Arctic offshore in 2016 and 2017 and is refusing the requests of two companies for lease extensions in those waters, the department said Oct. 16. Under the current five-year offshore leasing program, Chukchi Sea Lease Sale 237 was scheduled potentially for 2016. -
Obama Pulls Plug On New Arctic Oil Drilling
Oct 16, 2015 | PoliticoPro
By Elana Schor
The Obama administration on Friday pulled the plug on plans to sell new oil and gas drilling rights in the Arctic waters, a pivot away from energy development in the environmentally sensitive region after Shell's costly failure to find crude there. Interior's move to cancel the sales marked an acknowledgment... -
Obama Cancels Arctic Drilling Lease Sales
Oct 16, 2015 | The Hill - Congress Blog
By Timothy Cama
The Obama administration took a number of actions Friday to restrict future offshore drilling in the Arctic Ocean. The Interior Department is canceling two lease sales it had planned over the next year and a half for Arctic drilling rights and denying two oil companies’ requests to extend the time on leases that they currently hold. -
Oil Companies Support Global Climate Change Accord
Oct 19, 2015 | BNA Daily Environment Report
By Angelina Rascouet and Maher Chmaytelli
Ten major energy companies declared their support for a global deal to prevent climate change but stopped short of offering unanimous backing for carbon pricing. Producers, including BP Plc, Saudi Arabian Oil Co. and Petroleos Mexicanos—who together account for almost 20 percent of the world's oil and gas output—said in a statement... -
Congress Scoffs at Obama's Clean Power Plan Wish List
Oct 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
Congressional Republicans have a message for President Barack Obama's administration: Don't count on the federal budget for help in implementing your Clean Power Plan. Obama administration requests for a $4 billion fund to reward states that go beyond their emissions reductions goals under the plan and for $25 million specifically... -
Clean Power Plan Opponents Gear Up for New Lawsuits
Oct 19, 2015 | BNA Daily Environment Report
By Andrew Childers
West Virginia and other states opposed to the Environmental Protection Agency's Clean Power Plan intend to file new challenges to the rule the day it is published in the Federal Register, sparking a second round of litigation over the carbon dioxide emissions standards for power plants. -
Panel Wades Into Legality Of EPA Rule As Publication Looms
Oct 19, 2015 | E&E Daily News
By Jean Chemnick
A key subcommittee of the House Energy and Commerce Committee will review the legal arguments against U.S. EPA's Clean Power Plan this week as stakeholders wait for the imminent publication of the landmark climate rule. When the Energy and Power Subcommittee holds its hearing Thursday, the rules for new, modified and existing... -
It's Conference Season For EPA Carbon Rule
Oct 19, 2015 | E&E Power Plan Hub
By Emily Holden and Rod Kuckro
Starting today, Infocast will hold its second annual Clean Power Plan Implementation Summit. The first day focuses on using natural gas to comply with the rule. Tomorrow's and Wednesday's sessions kick off with remarks from U.S. EPA Associate Assistant Administrator and Senior Counsel Joe Goffman before delving into legal issues... -
Obama, CEOs to Meet on Climate Change
Oct 19, 2015 | BNA Daily Environment Report
By Justin Sink
President Barack Obama is bringing executives from five Fortune 500 companies to the White House on Oct. 19 in a bid to shore up business support for combating climate change.The roundtable discussion will include the chief executive officers of Johnson & Johnson, Intel Corp., Berkshire... -
Administration Accused of Blocking Climate Deal Oversight
Oct 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
Senate Republicans are crying foul over what they say is an attempt from President Barack Obama's administration to thwart oversight of the president's plans to reach an international climate agreement later this year in Paris. The State Department, Environmental Protection Agency and White House Council on Environmental Quality... -
Panel To Hear From Critics Of New Ozone Standard
Oct 19, 2015 | E&E Daily News
By Amanda Reilly
U.S. EPA's new ozone standard this week will suffer a round of criticisms at a House Science, Space and Technology Committee hearing. The full committee plans to hold a hearing Thursday featuring witnesses who have raised concerns about EPA's efforts to lower the standard. -
Lawsuit Tests Limits Of Nonpoint Source Mandates In CWA Cleanup Plans
Oct 16, 2015 | InsideEPA
By David LaRoss
Environmentalists are pursuing a novel suit that could test how far regulators must go to secure "reasonable assurance" that Clean Water Act (CWA) cleanup plans will succeed, arguing that more-stringent, mandatory controls of nonpoint sources of pollution are needed for a Washington state creek.
Congressional Hearings
Industry and Association News
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Full Text of Stories Below
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Hearing to Consider Pending Nominations
Oct 20, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: 366 Dirksen Senate Office Building/ 10:00 AM
-
Oversight of Regulatory Impact Analyses for U.S. Environmental Protection Agency Regulations
Oct 21, 2015 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building/ 10:00 AM
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Abandoned Mines in the United States and Opportunities for Good Samaritan Cleanups
Oct 21, 2015 | U.S. House of Representatitves Transportation & Infrastructure Committee
Location: 2167 Rayburn House Office Building/ 10:00 AM
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Oct 22, 2015 | U.S. House of Representatitves Transportation & Infrastructure Committee
Location: 2167 Rayburn House Office Building/ 10:00 AM
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EPA’s CO2 Regulations for New and Existing Power Plants: Legal Perspectives
Oct 22, 2015 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 2:00 PM
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(ACC Mentioned) Market Outlook: Commodity Bubble Pops As China Model Changes
Oct 19, 2015 | ICIS Chemical Business
By Paul Hodges
Chemical companies face a major challenge now that China’s business model has changed. The country is no longer aiming to achieve high levels of economic growth by operating an export-focused development model, supported by vast infrastructure spending.
Instead, its New Normal policies are focused on boosting domestic consumption by creating a services-led model based on exploiting the opportunities created by the power of the internet.
This “China Chill” highlights the chaos now having an impact on petrochemical feedstock and product markets. As we discuss in “Five questions every chemical company needs to answer”, the new ICIS/International eChem study, no other country or region can possibly replace China now that its demand growth has stalled.
Of course, petrochemicals are not alone in having to face up to this challenge. Sadly, a wide range of industries from commodity producers through to luxury goods manufacturers are realising their strategies have been based on 2 false assumptions:
■ firstly, that up to 3bn people were about to become middle class by Western standards; and
■ secondly, that this would drive a “super-cycle” of new demand.
The problem arose because of wishful thinking by international organisations such as the Asian Development Bank. They argued that a “middle income” of $10-20/day in the emerging economies equalled “middle class”, and suggested that anyone earning above $50/day was “high income”. Understandably, many people heard the words “middle class” but did not understand the definition.
Yet as the Pew Institute reported recently: “People who are middle income live on $10-20 a day, which translates to an annual income of $14,600 to $29,200 for a family of four. That range merely straddles the official poverty line in the United States – $23,021 for a family of four in 2011.”
Pew’s report also confirmed that:
■ 84% of the world’s population have incomes below the US poverty line; and
■ 87% of all “high-income” populations live in North America and Europe, with just 1% living in Africa, 4% in Latin America and 8% in Asia.
This wishful thinking was compounded by the stimulus policies adopted by central banks from 2004, first through the subprime bubble and then via quantitative easing. By keeping interest rates very low, and then printing trillions of dollars, they created massive bubbles in financial and property markets. In turn, this created one-off “wealth effects”, which temporarily appeared to have boosted consumer demand.
The opening paragraph of a landmark paper from October 2010 by Morgan Stanley, Petrochemicals – Preparing for a Supercycle, summed up the confusion that was created.
“An inflection point in the global plastics market, driven by China and India:” it reads. “After a recent period of slower growth and a decoupling from global GDP growth, we now expect the strongest period of ethylene demand growth in the past 20 years. We forecast that in the next five years, incremental annual consumption in China and India alone will equal the total current consumption in the US, until recently the world’s largest ethylene consumer, and still responsible for 15% of the market.”
Very soon, this became a consensus view. And in turn it drove a major rally in commodity prices. Prices of key raw materials such as oil, copper, iron ore and cotton raced higher, in some cases to new all-time highs.
The investment thesis was simple. The coming supercycle would inevitably require unprecedented volumes of raw materials, and provide earnings to match for those companies who chose to invest in the new capacity required.
CHINA POLICIES BURST BUBBLE
Now, of course, China’s adoption of its New Normal policies is bursting the bubble. Prices for most commodities are returning to their historical, and much lower, levels. This is already creating major challenges for those companies and countries that had believed in the flawed analysis.
Two of the four BRIC nations, Brazil and Russia, are already in recession as their export volumes and earnings tumble, further reducing their potential future income.
Data for chemical industry capacity utilisation from the American Chemistry Council (ACC) confirms the downturn now under way. It shows the peak created by the subprime bubble in the mid-2000s and then the recovery after the great financial crisis of 2008, as stimulus policies went into overdrive. But utilisation began to weaken in the second quarter of 2011 and has since fallen back to just 81.7% in August 2015, well below its 1987-2008 average of 92.9%.
This slowdown is common across all major regions with the exception of central/eastern Europe, where Russian production has been boosted by the collapse in the value of the rouble. The Asia and Middle East/Africa regions have seen chemical production growth rates halve over the past year from 8% to below 4%, while US and western Europe rates have slipped to around 3% and Latin America continues in negative territory.
CAPACITY ADDITIONS CONTINUE
One added complication is the delayed impact of China’s own stimulus programme.
Although this is now being reversed by President Xi Jinping, it is too late to stop many of the projects planned under the previous government.
As a result, China is continuing to bring new capacity online in a wide range of core products. As a result, its polypropylene (PP) production has risen by an astonishing 21% so far this year versus 2014, leading to an 8% fall in imports and 34% rise in exports. All the major exporting regions – northeast Asia, southeast Asia and the Middle East have suffered a decline in volume.
China has also been boosting polyvinyl chloride (PVC) exports to compensate for its property slowdown. As a result, the US has suffered an 11% fall in its PVC exports since 2013, despite having had a major cost advantage due to its feedstock being based on ethane/natural gas. US exports have declined to Latin America, the Middle East and the former Soviet Union, a worrying backdrop when major capacity expansions are being planned.
These developments highlight a number of key unknowns as companies start to finalise budgets for the 2016-2018 period.
■ China’s economic growth. China’s need to rebalance its economy will maintain pressure on its growth. Many experts suggest growth in its Old Normal economic sector is already close to zero. This has critical implications for future petrochemical demand.
■ Commodity prices. Financial markets remain mostly in denial about the outlook for commodity prices. Major supply/demand imbalances have been created during the commodity bubble, and prices could well have much further to fall.
■ Deflation. Overcapacity in China and in commodities could easily lead the world into deflation. This would dramatically change demand patterns, as people delay non-urgent purchases in the expectation of lower prices in the future.
■ Currency markets. Volatility is rising as investors move back into “safe haven” currencies such as the US dollar. Companies are also putting pressure on emerging economy currencies as they reshore production to the West.
■ Ageing populations. Demand patterns in key markets such autos, housing and electronics are already seeing major change as the world hits the “demographic cliff”. For the first time in history, more people are now entering the lower-spending 55+ age group than are joining the main wealth-creating 25-54 cohort.
It seems clear that we face a difficult few years. And as we argue in the study, very different scenarios could emerge as a result. One can hope that central bank policies might finally prove effective, and lead to a sustained revival in global demand, although few would now wish to “bet the company” on this assumption. Or perhaps a middle ground might emerge, where growth stabilises at current levels.
But common sense suggests the need to also include a third scenario, where the worst of the downturn still lies ahead.
It is a long time since we had to deal with such high levels of uncertainty, across such a wide variety of critical areas. One has to go back to the traumatic period of the 1970s for a parallel.
In turn, this suggests the petrochemical industry is undergoing a generational change that challenges current supply-driven business models based on forecasts for GDP growth. Have we instead arrived at a fork in the road, where future profit will come from new business models that are less product-oriented and more service-focused?
This study is of critical importance for both producers and consumers, and will be essential reading for chemical industry CEOs, executive management, planners and investors. Its aim will be to provide you with a road-map through today’s challenges, and a clear vision of the new opportunities now emerging for future growth and profit.
ICIS/International eChem study
The study “How to survive and prosper in today’s chaotic petrochemical markets: 5 critical questions every company and investor needs to answer” covers the olefins, aromatics and polymers markets. See how feedstocks and product supply and demand will impact your business and investments over the next 10 years. For more, visit www.icis.com/contact/supply-and-demand-study By Paul Hodges
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TSCA Reform: Overlooked Provisions, Issues
Oct 16, 2015 | BNA Energy & Environment Blog
By Pat Rizzuto
The considerable attention given to state preemption, vulnerable populations, deadlines and other aspects of pending bills to modernize the Toxic Substances Control Act has overshadowed other aspects of the Senate and House bills.
Senators have said they plan to take up S. 697 when they return to Capitol Hill the week of Oct. 19.
Below are a few of the requirements in, opportunities presented by and concerns raised about the two bills: the Frank R. Lautenberg Chemical Safety for the 21st Century Act, S. 697, and the TSCA Modernization Act, H.R. 2576.
S. 697 would amend Section 27 of TSCA to establish an interagency Sustainable Chemistry Program;the Senate bill would amend Section 4 of TSCA to reduce testing on vertebrates; the Senate bill would amend Section 8 of TSCA to require the Environmental Protection Agency to maintain certain “nomenclature” systems, means by which chemicals are identified; and both the House and Senate bills use legislative language that attorneys and former EPA officials have said should be clarified.
Various parties have commented on some of these changes.
“The design of safer and more sustainable chemicals, processes, and products should be encouraged and supported through research, education, recognition, and other means. The goal of these efforts should be to increase the design, manufacture, and use of lower risk, more energy efficient and sustainable chemical products and processes,” wrote Richard Denison, lead senior scientist with the Environmental Defense Fund, in a July 8 blog.
“There’s no point in modernizing the primary U.S. chemicals law without encouraging the use of state-of-the-art toxicity tests,” Neal Bernard, a clinical researcher and medical doctor working with the Physicians Committee for Responsible Medicine told Bloomberg BNA Oct. 6. The committee made similar comments in a blog it posted on S. 697.
“The bills use a number of new terms and concepts that lack clarity. While we understand the potential role of ambiguity to help legislators come to agreement, we are also alert to the potential for lawsuits challenging EPA’s interpretation of the terms’ meaning and intent in the absence of clear drafting or congressional clarification and explanation,” wrote former EPA officials Charles Auer and James Aidala along with Lynn Bergeson, managing partner of Bergeson & Campbell, P.C. in a July 23 Bloomberg BNA Insights article.
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Volunteers Sought to Wear Wristband Measuring Chemicals
Oct 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Unions, researchers, first responders and advocacy groups are among the types of individuals and groups being sought for a Chemical Detection Initiative announced Oct. 16 by the Environmental Defense Fund.
“A remarkably simple wristband can reveal the invisible problem of hazardous chemicals in our lives,” Sarah Vogel, vice president of EDF's Health Program, told reporters as she announced the initiative.
EDF is recruiting volunteers to wear wristbands and participate in other chemical detection activities to help fill the paucity of information about the public's exposure to thousands of chemicals, Vogel said.
Data-Gathering Effort Follows Feasibility Study
The environmental health group announced the data-gathering initiative as it released the results of a pilot feasibility study that show silicon wristbands—similar to those many people wear to support various causes—can identify chemicals to which individuals are exposed.
Marc Epstein, chief executive officer of MyExposome Inc., a company working with EDF to create a market for passive environmental monitors such as the wristband, said the easy, noninvasive chemical detection method is likely to increase pressure on cosmetic, consumer product, chemical and other companies as people and advocacy groups seek more information about the chemicals to which people have been exposed.
“We want to provide enough information to let people take charge of their environmental and chemical exposures,” Epstein said.
Unions, first responders, advocacy groups, researchers and the general public are the initial target audience, he said.
Initial Results
The wristbands act like sponges and can detect up to 1,418 chemicals found in the air, water, and consumer goods like personal care products, according to EDF.
In its feasibility study, 28 members of EDF's staff and board along with other volunteers wore the wristbands 24 hours a day for a week. Highlights of the results:
• 57 chemicals were detected through the 28 wristbands, with each wrist band detecting an average of 15 chemicals;
• every wristband detected galaxolide, a fragrance ingredient found in air fresheners, cleaning and beauty products;
• 26 of 28 wristbands (93 percent) detected one or more pesticides; and
• 24 of 28 wristbands (86 percent) detected one or more flame retardants.
Value of Information
The detection of the chemicals in the pilot study provided hazard information not risk, Vogel said.
Risk information can be obtained, however, through additional tests, said Kim Anderson, director of an environmental stewardship program at Oregon State University, where she and other researchers developed the wristbands.
In a previous study roofers wore the wristbands, Anderson said. The experiment showed that workers performing certain tasks had higher exposures to polycyclic aromatic hydrocarbons (PAHs) than did roofers doing other tasks, she said. The National Toxicology Program has classified PAHs as reasonably anticipated human carcinogens.
Epstein said he envisions unions encouraging members to wear the wristbands to get a lot of different information about what individuals' particular jobs and industry exposures are.
The easy, noninvasive chemical detection methods is likely to increase the demand for information about chemicals, Epstein said.
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Seeking A Safer Flame Retardant
Oct 19, 2015 | The Boston Globe
By Megan Scudellari
At this very moment, you are likely sitting on a chair made with flame retardant, holding a cellphone doused in flame retardant, or inhabiting a building whose wiring and insulation are infused with flame retardant — perhaps all at once.
The ubiquitous nature of these chemicals is mostly due to a well-intended effort to prevent the start and spread of fire. But scientific studies have raised concerns about common chemicals used as retardants, linking exposure with cancer, lower IQ, delayed mental development, and other problems. Scientists have also found that such chemicals have traveled into our bodies; they’ve been detected in human breast milk and toddler urine.
Now researchers have identified an alternative flame retardant that outperforms existing formulas — a chemical that’s nontoxic, environmentally friendly, and inspired by the sticky mucus of marine mussels.
“Mussels can attach to anything: painted surfaces, metal surfaces, Teflon, you name it,” says Christopher Ellison, a chemical engineer at the University of Texas at Austin who led the study in the October issue of the journal Chemistry of Materials. A flame retardant that did the same, Ellison mused, would not easily flake off a surface or leach into the environment.
His team soaked polyurethane foam — a highly flammable material used in many consumer products — in water mixed with dopamine, a chemical present in our bodies that plays an important role in brain signaling. Then the team reduced the acidity of the liquid, causing the individual molecules of dopamine to link together, forming long chains of dopamine, called polydopamine, within and around the foam.
Polydopamine mimics the adhesive proteins in the mucus of mussels, and similar chemicals are known to subdue highly reactive molecules called free radicals released by heat and fire. The team soaked the foam in the liquid for three days.
Once the foam was dry, they promptly torched it. “My graduate students loved doing those tests,” Ellison says with a laugh. When exposed to flames, the polydopamine coating formed a char on the outside of the foam, similar to the black crust that forms on a marshmallow held too close to the campfire. The char protected the inside of the foam, preventing it from burning, and the flame quickly went out. In comparison, foam with no retardant melted into a flaming, dripping white goop, transferring the fire to underlying materials.
In further tests, polydopamine reduced the amount of heat generated by fire better than several commercial flame retardants, all while using a smaller amount.
Numerous manufacturing companies have already contacted Ellison with questions about the retardant, he says. His team is now testing how well polydopamine works on other fabrics, including nylon, cotton, and polyester.
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Dems Urge Retailers To Stop Selling Microbeads
Oct 16, 2015 | The Hill - Regulation
By Lydia Wheeler
Senate Democrats are calling on retailers to stop selling bath products that contain small plastic beads.
Sens. Chris Murphy (Conn.), Kirsten Gillibrand (N.Y.) and Richard Blumenthal (Conn.) sent a letter to the Retail Industry Leaders Association and the National Retail Federation on Friday asking the groups to urge their members to stop selling products that contain polyethylene and polypropylene plastic microbeads.
The letters are in response to a recent Southern Connecticut State University study, which found evidence of microbeads in the Long Island sound. These microbeads — often used in soaps and shower gels to exfoliate the skin — build up as plastic pollution and get mistaken for food by fish, threatening aquatic life.
“Due to their tiny size, microbeads often cannot be successfully removed from wastewater streams by municipal sewage plants,” the senators said in their letter. “Just one personal care product can contain hundreds of thousands of these beads, which typically do not biodegrade, as they require high heat processing to break down.”
The beads have also been building up in the nation’s Great Lakes. In May, Sens. Debbie Stabenow (D-Mich.) and Gary Peters (D-Mich.) introduced the Microbead-Free Waters Act of 2015 in a bid to phase out the manufacturing and sale of microbeads found in household products altogether.
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Wells Fargo Launches Prop 65 Phthalate Insurance
Oct 16, 2015 | Chemical Watch
Wells Fargo Insurance (WFI) has launched an insurance programme providing financial protection against potential Proposition 65 litigation to companies that use six phthalate plasticisers.
The coverage would mitigate the risk of costs associated with litigation brought against manufacturers, distributors and formulators over alleged violations of California's Prop 65 involving: DEHP;DBP;BBP;DIDP;DnHP; orDINP.
Products that contain any of the hundreds of chemicals listed under California's Prop 65 that exceed safe harbour levels are required to bear “clear and reasonable” warnings. In 2014 alone, more than 600 suits were brought against alleged violators of the law (CW 7 October 2015).
According to Glynis Priester, environmental and national practice leader at WFI, “many innocent firms become targets of Proposition 65 for the mere presence of the chemical in a product that is on the list.” Litigation can be brought against companies for allegations that product labels are not “clear and reasonable”. Other suits may charge that a product contains listed chemicals that exceed safe harbour levels and therefore should have been labelled under the law.
Ms Priester adds that suppliers further down the supply chain “can get embroiled in these lawsuits, as well” if they are not aware where their product is being used.
The insurance giant says it worked closely with SPI, the Trade Association of the Plastics Industry, to develop the programme.
WFI is currently investigating other substances and industries, as it looks “to expand the policy to cover many more chemicals”.
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Academies Inorganic Arsenic Assessment Panel to Meet
Oct 19, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The National Academies of Sciences, Engineering, and Medicine is accepting comments on new members it has provisionally appointed to serve on a committee that will review an updated Environmental Protection Agency assessment of the human health hazards posed by inorganic arsenic.
That committee will meet Dec. 2-3 for its first meeting in two years, according to information the academies posted online Oct. 15.
In coming months, the committee will review an updated EPA assessment of inorganic arsenic, which the World Health Organization describes as highly toxic and which occurs naturally in groundwater and reaches drinking water in some parts of the U.S. and other countries. The assessment is being prepared by the agency's Integrated Risk Information System (IRIS) program.
The agency is updating its draft inorganic arsenic assessment after the previous version, released in 2010, came under criticism from industry and water utility groups (06 DEN A-4, 1/9/13).
The EPA declined to comment Oct. 16 on the status of the updated assessment or information it may bring in December to the academies' newly formed committee.
Committee Established Under Congressional Order
The committee was established in July 2012 in response to a congressional directive included as part of a fiscal year 2012 omnibus appropriations package (H.R. 2055) (243 DEN A-8, 12/19/11)(243 DEN A-5, 12/19/11).
Congress' directive followed a report the National Academies panel issued in 2011 that called on the EPA to make many improvements to its IRIS assessments such as making it easier for readers to understand the agency's criteria for selecting or rejecting studies, the approaches the agency used in evaluating critical studies and its justification for modeling assumptions in the absence of data (69 DEN A-1, 4/11/11).
Two Phase Review by Academies Requested
The EPA asked the academies' National Research Council to convene a committee in two phases.
During its first phase, the committee offered guidance on key issues the agency should address in its inorganic arsenic assessment.
During the second phase, which will begin with the December meeting, the committee will review a revised IRIS assessment to determine whether the agency adequately evaluated scientific literature, whether it used appropriate methods to derive cancer risk estimates and noncancer reference values (doses expected to be without harm) and whether dose-response relationships between inorganic arsenic and cancer and noncancer effects were appropriately estimated and characterized.
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(ACC Mentioned) Hill Moves Toward Delaying Rail Safety Deadline
Oct 18, 2015 | Politico
By Lauren Gardner
Last spring's deaths of eight passengers in an Amtrak derailment in Philadelphia called attention to a glaring hole in the nation's rail safety network: railroads' failure to install an advanced anti-collision technology that Congress had mandated in 2008.
But five months later, lawmakers are preparing to give railroads years past this December's deadline to put the systems in place — heeding the railroads' warnings that they would otherwise have to impose a nationwide freeze on rail traffic that could wreck the economy and threaten national security. More than 100 oil, gas, coal, farming, manufacturing, retail and other business groups are also urginglawmakers to postpone the mandate, as are the U.S. Conference of Mayors, local transit agencies, newspaper editorials, more than 150 House members and nearly half the Senate.
The railroads' reprieve could arrive in the multi-year highway and transit bill that the House Transportation Committee is due to take up next week, although a draft unveiled Friday contained no details. House lawmakers have spent weeks negotiating specific language with the Senate, which approved a three-year deadline extension over the summer.
Even without Congress' action, the nation's top freight railroads say they need anywhere from two to five more years to install the multibillion-dollar safety technology, known as positive train control, the Government Accountability Office reported last month. A few commuter rail systems told the GAO they have no idea when they could finish the job.
If Congress fails to act, "that will have a ripple effect through the entire economy,” Association of American Railroads CEO Ed Hamberger said.
But safety advocates oppose a blanket extension, noting that railroads have had seven years to meet the original deadline.
“What is to prevent the railroads from using this bullying tactic when they don’t meet the next deadline?” House Transportation Committee member Janice Hahn (D-Calif.) asked. Her Los Angeles-area district is about 50 miles from the site of the 2008 rail fatality that inspired the safety mandate: a head-on collision between a Metrolink commuter train and a Union Pacific freight train that killed 25 people.
Hahn also questions railroads’ arguments that they could not operate after Dec. 31 without an extension, noting that congressional deadlines are blown all the time. But the nation's four largest railroads — BNSF, CSX, Union Pacific and Norfolk Southern — have said they could face millions of dollars in fines and would risk lawsuits if they continue transporting hazardous cargo without the safety systems in place after the deadline passes.
The railroads say some effects could appear as soon as November, as they begin notifying customers of possible service disruptions and might even halt some shipments to ensure products aren't stranded on the tracks.
Multiple powerful industries are echoing the railroads' warnings about the damage the nation would face.
“It would be utter chaos,” said Andrew Walmsley, director for congressional relations for the American Farm Bureau. Disruptions of chemical shipments to drinking-water plants “could risk a public health disaster for communities across the country," a coalition of water utilities wrote to Congress last month, raising the prospect of “cholera and typhoid outbreaks.” The American Chemistry Council saysjust a one-month disruption in rail service would wipe out 700,000 jobs and $30 billion in economic activity, and an extended interruption could cause a recession.
Positive train control uses GPS technology, radio waves and other signals to convey information on trains' locations and movements, and it hits the brakes automatically if a locomotive speeds too fast or appears close to colliding with another train. The National Transportation Safety Board says it would have prevented scores of accidents over the past few decades, including May's Amtrak crash, which killed eight people and injured more than 200 others after a speeding passenger train hurtled off the track.
Fingerpointing about the delays in installing the technology abounds, with lawmakers like Sens. Richard Blumenthal (D-Conn.) and Dianne Feinstein (D-Calif.) blaming foot-dragging by the railroads and their lobbyists. Railroads in turn blame a lack of money to meet the systems' billions of dollars in costs — which Congress has largely refused to provide — as well as years of difficulties in getting the Federal Communications Commission to give them access to the wireless airwaves the systems require. As a result, they say, the December 2015 deadline was virtually doomed from the start.
In addition, positive train control wasn’t widely used or developed when Congress mandated its use in 2008, and only a few suppliers exist in the U.S. For years, the rail industry and federal watchdogs have warned that the deadline is unrealistic for the vast majority of railroads and transit agencies.
“We need more time to actually do all of the installation, and then we need more time for testing and validation,” the railroad association's Hamberger said. “But we don’t want to be back before Congress asking for any additional legislation.”
The dire scenarios the railroads and their supporters are offering have helped lawmakers come to broad agreement on the need to extend the deadline, a Senate Commerce Committee spokesman told POLITICO. "Negotiations hammering out language are bicameral and bipartisan — this is getting done because of the recognition that a railroad shutdown would harm the economy,” he said.
Still, even lawmakers who agree on providing more time disagree on the details, such as whether to give railroads a hard deadline of 2018 for implementing the technology or grant them more wiggle room for testing the systems.
Blumenthal, one of the most vocal critics of the extension push, argues that only railroads that have made good-faith efforts to put the technology in place should get more time. He’s pushing a conditional extension of up to three years — but just for railroads that could justify their need.
California Sen. Barbara Boxer, the top Democrat on the Environment and Public Works Committee, added to the uncertainty this month by vowing to block any attempt to extend the deadline unless it’s part of a long-term transportation bill.
The scope of the rail traffic at stake in the debate is huge. Trains shipped more than 300 million tons of grains, oilseeds and other agricultural commodities last year as well as 80 tons of anhydrous ammonia, a key component of fertilizer. Coal wouldn’t be able to move across the country to states needing it for power production, the railroads and their supporters say. Neither, they contend, would chemicals used for more than 96 percent of manufactured goods.
Commuter rail agencies in places like Chicago and northern Indiana have spread the message as well, telling passengers they will cease operations Jan. 1 if Congress does not extend the deadline.
And Hamberger told Defense Secretary Ash Carter in a letter last month that contractors and military units could see their vital rail shipments "grind to a halt if Congress doesn’t act before the end of October."
"At stake is nothing short of the efficient functioning of the U.S. economy, which is itself a national security issue," he wrote.
Those arguments aren't enough to win over all the skeptics. “In my heart of hearts, I don’t support extending the deadline,” Hahn said, though she acknowledged that the odds of an extension passing are high.
But Hamberger said Congress needs to provide the time to ensure that the work of installing the technology continues.
“You’re building your new house and it’s halfway up,” he added. “You don’t just stop.”
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(ACC Mentioned) Editorial: Avoid a Railroad Shutdown
Oct 17, 2015 | The Bulletin
It sounded good back in 2008 when Congress approved the Rail Safety Improvement Act — require the nation’s railroads to install something called Positive Train Control by the end of 2015, and make the country a safer place in the process.
Problem is, no one — not the railroads, not the Government Accountability Office, not the Federal Railroad Administration — says the job can be completed by the end of this year. And unless the U.S. House of Representatives acts quickly to push the deadline back several years — the Senate already has done so — rail activity in the country is likely to slow dramatically or even stop.
Had PTC been in place last May, the Amtrak accident in Philadelphia that killed eight people likely would not have occurred.
PTC uses GPS, sends audible and visual information to train crews when there is danger ahead and warns the engineer to slow the train. If he or she failed to do so, the train’s computers would have taken over and slowed it for him or her.
Meanwhile, it’s difficult to overestimate the impact a nationwide rail shutdown would have. The chemicals used in fertilizer could not be shipped, nor could those used in treating drinking water. Rail shipments of everything from automobiles to lumber would end, as would all Amtrak traffic outside the northeast corridor from Washington, D.C., to Boston. Burlington-Northern, the rail company that serves Central Oregon, has said it will end all service before year’s end if a delay is not approved.
All that would cost the nation about $30 billion in the first month, according to the American Chemistry Council.
House Resolution 3651 would push the current deadline back to the end of 2018, as the Senate already has done. Though no vote has been scheduled, action on it seems likely. We hope so. A sidelined rail system is a Christmas present this country can do without.
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House Highway Bill Seeks Changes to PHMSA Rule
Oct 19, 2015 | BNA Daily Environment Report
By Rachel Leven
A House committee released Oct. 16 a bill that would reauthorize hazardous materials transportation programs for six years, which includes provisions to make changes sought by industry to requirements in the final Transportation Department's crude oil-by-rail rule.
The House Transportation and Infrastructure Committee bill, Surface Transportation Reauthorization and Reform Act (bill number unassigned), would require two new crude-by-rail transportation rules, block a proposed “wetlines” rule from being finalized and omits an Obama administration requested user fee. The hazmat provisions of the bill were praised by hazmat and trucking industry representatives.
“This is a very positive step and we're grateful to all who have contributed,” Cynthia Hilton, a co-facilitator for the Interested Parties for Hazardous Materials Transportation, told Bloomberg BNA.
The bill comes weeks before the current “patch” for surface transportation reauthorization expires on Oct. 29, and months after the Senate passed its own bill, the DRIVE Act (H.R. 22). The House committee plans to hold a markup on its bill Oct. 22.
Crude-by-Rail
The House bill would readdress some issues already considered and decided on by the Transportation Department's Pipeline and Hazardous Materials Safety Administration in its final rule governing flammable liquids transport by rail.
It would require the Government Accountability Office to study the effectiveness of costly brakes required for certain trains carrying large shipments of flammable liquids and for the department to redetermine whether that requirement was justified. The electronically controlled pneumatic brake requirement, which applies to certain large flammable liquid rail shipments, was strongly opposed by the oil and rail industries alike.
The bill also stipulates that the department would have to add thermal blanket requirements for certain tank cars in the rule, a provision the department specifically rejected. Additionally, the bill would require the department to codify a crude-by-rail emergency order on notification requirements into a rule and to require more detailed oil response plans from railroads carrying crude oil (152 DEN A-15, 8/7/15).
Sabrina Fang, American Petroleum Institute spokeswoman, told Bloomberg BNA her organization is still reviewing the bill. She added that “API supports upgrades to the tank car fleet and wants them completed as soon as realistically possible.”
Ed Greenberg, Association of American Railroads spokesman, told Bloomberg BNA his organization is reviewing the bill and declined to comment further.
User Fee Omitted
Meanwhile, the House gave the hazardous materials industry a win by not including an Obama administration's legislative proposal to add a user fee for the PHMSA's special permits and approvals program. H.R. 22 also omits the user fee, which the Obama administration has proposed at least five times over the last several years.
For the trucking industry, one of the most notable victories is the House mandate that PHMSA withdraw its January 2011 proposed “wetlines” rule that affects requirements for external product piping on specific cargo tanks transporting flammable liquids. Wetlines are fuel-loading lines, specifically used to drain and fill cargo tank trucks, and this proposal regulating these was contentious, in part, in light of its cost-benefit analysis.
While the bill leaves intact PHMSA's authority to regulate this area, Boyd Stephenson, vice president of the international supply chain operations for the American Trucking Associations, told Bloomberg BNA “we don't believe that PHMSA will ever be able to produce a rule that has higher benefits than cost.”
Among several other issues important to the hazmat industry, the bill would alter the publication requirements of special permits and approvals from PHMSA, for example, by requiring that PHMSA publish at least every 120 days the final actions it has taken on applications.
While PHMSA has many times done this of its own initiative, this would make it a requirement, said Hilton, who is also the executive vice president of the Institute of Makers of Explosives. The provisions would “help everybody,” and improve the transparency and accountability of the program, she said.
Generally ‘Pleased.'
While Stephenson had certain concerns with the bill, he said his group was generally “pleased” with it. He pointed to several other provisions within the bill, such as emergency response training provisions, as positive attributes in the measure.
Hilton also said she was very pleased overall with the bill, including emergency response changes and a mandate for a GAO report on the adequacy of classification examinations for hazardous materials.
Finally, first responders also expressed support for the bill, with increased funding proposed for at least one grant program.
“Too many first responders continue to lack sufficient training or resources needed to effectively respond to hazardous materials incidents,” Kevin O'Connor, assistant to the general president for governmental affairs and public policy for the International Association of Fire Fighters, said in an e-mailed statement to Bloomberg BNA.
“The Surface Transportation Reauthorization draft released by the House Transportation Committee today contains a number of important provisions to ensure first responders receive the necessary training and information needed to better protect their communities,” he said.
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Four Hazardous Materials Takeaways From The House Highway Bill
Oct 16, 2015 | BNA Energy & Environment Blog
By Rachel Leven
The House Transformation and Infrastructure Committee today released a highway bill that would reauthorize hazardous materials transportation programs from 2016 through 2021. Here are four hazmat takeaways you shouldn’t miss:
1. It includes major victories for the hazardous materials industry. One example? Just like the Senate’s reauthorization bill, it would reject the Obama administration’s continued request for a user fee from certain hazardous materials shipments.
2. It questions the Transportation Department’s recent crude-by-rail rule. Notably, an independent agency would study the oil and rail industry-opposed, electronically controlled pneumatic brake requirement of the final rule. Then the agency would decide whether to keep it.
3. It literally says the decision on positive train control is to be determined. The bill says “to be supplied” on this requirement related to poisonous or toxic-by-inhalation (such as chlorine) rail service. The deadline for installing these systems, which are aimed at preventing derailments caused by human error, is Dec. 31, and almost everyone is calling for an extension.
4. Emergency responders weren’t forgotten. It mandates that the Transportation Department make a permanent rule to ensure responders have information related to crude oil shipments going through their area. It also alters grant programs related to hazmat transportation.
The bill, which is set to be marked up on Thursday, comes weeks before the current “patch” authorization expires on Oct. 29. The Senate passed its own six-year highway bill in July.
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House Transportation Bill Nibbles Around Oil Trains Rule
Oct 16, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
The House's multiyear transportation bill stipulates that DOT must require each train tank car produced or retrofitted to the new, stricter standards must have a thermal jacket at least a half-inch thick.
It also would require the DOT to issue regulations requiring railroads transporting Class 3 flammable liquids to maintain a comprehensive oil spill response plan.
And the bill would require DOT to compel railroads to provide information on oil train shipments to state emergency response commissions, "and include appropriate protections from public release of proprietary information and security-sensitive information." In an earlier emergency order, DOT required such information from carriers to be distributed to state officials as well as emergency responders, but there was some disagreement about whether that information should be subject to public records requests. The final rule issued in May only required that information to be disclosed to first responders.
The bill also mandates a study and testing of ECP braking systems -- one of the pieces of the final rule railroads have railed loudest against -- including a comparison of relative safety between ECP and other braking systems.
The House's transportation bill, unveiled earlier today, contains a set-aside for grade crossings worth about $1.4 billion over the life of the bill.
The bill requires $225 million to be set aside in fiscal 2016, rising to $250 million by 2021, to help install protective devices at highway grade crossings and eliminate other grade-crossing hazards.
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Agreement On Automated Train Extension 'Very Close'
Oct 16, 2015 | The Hill - Transportation
By Keith Laing
Lawmakers in the House and Senate are "very close" to reaching an agreement on extension of a federal deadline for automating trains on most of the nation’s railways, aides in the lower chamber say.
Rail companies currently have until Dec. 31 to install an automated train navigation system known as Positive Train Control (PTC), which regulates the speed and track movements of trains. Several railroad service providers, including Amtrak, are pressuring Congress to move the deadline by threatening to at least partially shut down passenger and freight service in January if the automated train deadline is not extended.
Aides in the House said Friday the chambers are nearing a bicameral agreement on such an extension amid the mounting pressure from railroads.
"Our approaches were a little different, and what we've done is actually sit down with them over the last couple of weeks to see if there's a compromise position once again on a bipartisan basis with the Senate that we could work out," a GOP aide said, noting that the Senate has already passed an extension of the automated train mandate that would last until 2018 in an earlier highway bill.
"We think we're very close on that. If we get to that point in the next day or so, when we introduce this [highway] bill next week, our hope is to have that Positive Train Control provision in it," the aide continued.
The December deadline for automated trains was set under a law passed in the aftermath of a 2008 commuter rail crash in California.
Lawmakers have moved to extend the deadline at the behest of freight and commuter rail companies, but the effort stalled after a deadly Philadelphia Amtrak crash in May that killed eight passengers.
A highway funding bill that was passed by the Senate in July would change the mandate for railroad companies to implement the automated train system by year's end to a requirement that they submit plans by that date for installing the technology in the near future.
The House, meanwhile, has introduced a bill in the lower chamber that would push back the deadline for most railroads to install automated train technology until December 2018. The House measure would also allow the Transportation Department to grant exemptions to the automated train deadline beyond 2018 to individual rail companies on a case-by-case basis.
Several railroad service providers, including Amtrak, have warned lawmakers they will have to shut down service at the end of the year unless lawmakers relent on the mandate.
“The Dec. 31, 2015 Congressional deadline for implementation of Positive Train Control (PTC) is on the verge of creating a nationwide crisis for commuter and freight railroads with severe economic consequences,” The Washington, D.C.-based American Public Transportation Association (APTA) and the Association of American Railroads (AAR) said this week.
“If Congress fails to extend the deadline, freight and passenger railroads may have little choice but to suspend commuter service and sharply curtail freight shipments,” the rail groups continued. “This would affect the 26 commuter rail systems providing 1.7 million trips daily and 90 freight railroads that provide essential goods to communities across the country.”
Supporters of extending the deadline have cited the threats of a shutdown of the nation's train services.
"I believe, absent Congressional action, we will begin to see the effects of the deadline four to six weeks prior to the December 31st deadline as railroads begin to cycle traffic off their lines," John Thune (R-S.D.), who is chairman of the Senate Commerce, Science, and Transportation Committee, said during a recent confirmation hearing for the Federal Railroad Administration's Acting Administrator Sarah Feinberg.
“This is a looming economic and safety disaster that is completely avoidable," Thune continued.
Critics, meanwhile, have complained that a "blanket extension" of the automated train deadline lets railroads off the hook for improving safety for passengers.
"It has been more than 45 years since the National Transportation Safety Board first urged railroads to implement positive train control — an unacceptable delay in implementation of this critical, life-saving technology that has allowed numerous, preventable tragedies," Sen. Richard Blumenthal (D-Conn.) said in a statement after the House PTC extension measure was introduced.
"Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate," he continued. "Only by holding railroads’ feet to the fire will this critical, life-saving technology finally be implemented.”
Transportation Department officials in the Obama administration have told lawmakers they have little choice but to enforce the law that Congress passed.
"The reality is without Congress doing something, we've got a deadline coming up and we're going to have to enforce that deadline," Transportation Secretary Anthony Foxx told reporters earlier this month.
Aides in the House expressed optimism on Friday that Congress would be able to reach an agreement on an extension soon.
"We're having good conversations," the Republican aide said. "I'm confident that we can get something done."
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Railroads Ramp Up Shutdown Threats
Oct 16, 2015 | The Hill - Transportation
By Keith Laing
Railroads are ramping up pressure on Congress to extend a federal deadline for automating trains on most of the nation’s railways, warning they will have to shut down service at the end of the year unless lawmakers relent on the mandate. Rail companies currently have until Dec. 31 to install an automated train navigation system known as Positive Train Control (PTC), which regulates the speed and track movements of trains.
Several railroads, including Amtrak, have threatened to at least partially shut down service in January if the automated train deadline is not moved.
The Washington, D.C.-based American Public Transportation Association and the Association of American Railroads plan to hold a conference call with leaders from Chicago’s Metra and Virginia’s VRE commuter railways and the San Joaquin Regional Rail Commission in Stockton, Calif., on Monday to drive home the threat.
“The Dec. 31, 2015 Congressional deadline for implementation of Positive Train Control (PTC) is on the verge of creating a nationwide crisis for commuter and freight railroads with severe economic consequences,” the rail groups said.
“If Congress fails to extend the deadline, freight and passenger railroads may have little choice but to suspend commuter service and sharply curtail freight shipments,” the groups continued. “This would affect the 26 commuter rail systems providing 1.7 million trips daily and 90 freight railroads that provide essential goods to communities across the country.”
The December deadline for automated trains was set under a law passed in the aftermath of a 2008 commuter rail crash in California.
Lawmakers have moved to extend the deadline at the behest of freight and commuter rail companies, but the effort stalled after a deadly Philadelphia Amtrak crash in May that killed multiple passengers.
The APTA and AAR rail groups said their industries have faced unexpected complications implementing the automated train since the 2008 mandate was signed into law.
“PTC is a highly complex, interconnected technology that provides automated braking and will add another layer of safety to freight and commuter operations,” the groups said.
“Despite significant progress in installing PTC, the vast majority of railroads across the nation will not meet the federal deadline of December 31 to have PTC fully installed and certified,” they continued. “While the U.S. Senate has passed legislation extending the installation deadline, the House of Representatives has not acted yet on proposed legislation by House Leaders, called the Positive Train Control Enforcement and Implementation Act (H.R. 3651).”
Supporters of extending the deadline have sounded the alarm about a potential shutdown of the nation's train services.
"I believe, absent Congressional action, we will begin to see the effects of the deadline four to six weeks prior to the December 31st deadline as railroads begin to cycle traffic off their lines," Thune, who is chairman of the Senate Commerce, Science and Transportation Committee, said during a recent confirmation hearing for Acting Federal Railroad Administration chief Sarah Feinberg.
“This is a looming economic and safety disaster that is completely avoidable," Thune continued.
Critics have complained that a "blanket extension" of the automated train deadline lets railroads off the hook for improving safety for passengers.
"It has been more than 45 years since the National Transportation Safety Board first urged railroads to implement positive train control — an unacceptable delay in implementation of this critical, life-saving technology that has allowed numerous, preventable tragedies," Sen. Richard Blumenthal (D-Conn.) said in a statement after the House PTC extension measure was introduced.
"Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate," he continued. "Only by holding railroads’ feet to the fire will this critical, life-saving technology finally be implemented.”
Passenger advocacy groups, meanwhile, have pressured Congress and rail companies to figure out a way to keep trains on the tracks at the beginning of next year.
"You're 17 times more likely to be killed in a car crash than a train accident, so for Congress to allow the absence of PTC to force commuters onto highways is the ultimate case of letting the perfect get in the way of the good,” National Association of Railroad Passengers President Jim Mathews said in a statement.
Transportation Department officials in the Obama administration have told lawmakers they have little choice but to enforce the law that Congress passed.
"The reality is without Congress doing something, we've got a deadline coming up and we're going to have to enforce that deadline," Transportation Secretary Anthony Foxx told reporters earlier this month.
"Many of the concerns [railroads] raise appear to be legitimate concerns, but as far as we're concerned, the deadline at present is what it is and we have to enforce against it, absent some congressional action," Foxx continued.
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Editorial: Congress, Slow This Train
Oct 16, 2015 | The Chicago Tribune
It's been a few years since we faced a transit doomsday in Chicagoland, but here we go: Metra says it will have to stop running trains after Dec. 31 unless Congress extends the deadline to install a safety system called positive train control.
The threat is actually much bigger than that. Most Amtrak service outside the Northeast Corridor would be suspended, and freight lines across the country would shut down, the railroads say. Less than 30 percent of the U.S. rail system is on track to meet the year-end deadline.
That's especially bad news for metro Chicago, the nation's freight hub. A quarter of all freight trains in the U.S. go through Chicago.
"If freight trains don't run, trucks don't run," Rep. Mike Quigley, D-Chicago warned. "This is recession-threatening. This could shut down the economy."
The railroads say they'd have no choice. The Federal Railroad Administration has said it will enforce the deadline — with potential fines of up to $25,000 a day per train. (For Metra, that's 753 each weekday.) Operating outside the law would expose the railroads, especially commuter lines, to liability risks.
The mandate doesn't apply to the CTA because it is regulated by the Federal Transit Administration.
Quigley introduced a measure last month to extend the deadline through 2018. Normally we'd have trouble imagining that lawmakers would fail to act when the consequences are so plain, but lately we're not so sure. The railroads, wisely, are making contingency plans. Metra plans fare hike in 2016; agency says state budget rift delays upgrades
Positive train control is a safety system to backstop human error. Using GPS, wireless onboard radio and other components, it can detect an imminent crash or derailment and override the actions of the engineer, stopping or slowing the train.
In 2008, a Metrolink train and a freight engine collided head-on in Los Angeles, killing 25 people. That prompted Congress to order passenger and freight railroads to install positive train control by the end of 2015.
That deadline did not come with the $13 billion needed to deploy the system nationwide.
Federal safety officials say PTC would have prevented the derailment of an Amtrak Philadelphia-to-Washington train in May. Eight people died and more than 200 were hurt.
The National Transportation Safety Board says it has investigated at least 30 accidents since 2004 that could have been prevented by PTC. Those accidents killed 69 people, injured more than 1,200 and caused millions of dollars in property damage.
In a letter to the Tribune in July, NTSB Chairman Christopher Hart compared the federal mandate to install PTC to the push to require seat belts in cars in the 1960s. "Virtually every major transportation safety improvement has met with resistance based on cost," the letter said.
Easy for the feds to say, when they don't have to come up with the money. The truth is that it's in the railroads' interest to install PTC. Accidents involving passengers are relatively rare, but freight derailments are common and costly. The railroads aren't resisting the mandate to install the equipment. They just want more time.
Deploying PTC isn't like snapping your iPhone to the dashboard of your car and clicking on the GPS app. It's especially complicated for Metra, which doesn't own all of the tracks it uses and shares some of the ones it does. The equipment has to work seamlessly among all the lines that use the same tracks.
Metra expects that 40 percent of its trains will be PTC-compliant by the middle of next year and the system will be fully in place sometime in 2019. The House bill would allow federal officials to grant another 12-month extension beyond the new 2018 deadline.
At the risk of inviting another letter from the NTSB, we'll repeat that we're not convinced PTC is a good investment. More lives would be saved if those billions were spent to install gates, signals and other safety features at railroad crossings, where most accidents occur. More derailments would be prevented if the money were spent to maintain tracks.
But that train has left the station. PTC is coming. It's just not coming fast enough to meet what was always an unrealistic deadline. So if your commute is a mess come January, don't blame Metra. Blame Congress.
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Two Arctic Offshore Lease Sales Canceled
Oct 19, 2015 | BNA Daily Environment Report
By Alan Kovski
The Interior Department is canceling lease sales for the Arctic offshore in 2016 and 2017 and is refusing the requests of two companies for lease extensions in those waters, the department said Oct. 16.
Under the current five-year offshore leasing program, Chukchi Sea Lease Sale 237 was scheduled potentially for 2016. The Bureau of Ocean Energy Management issued a call for information and project location nominations in 2013, in response to which industry submitted no specific nominations, Interior said.
Beaufort Sea Lease Sale 242 had been scheduled potentially for the first half of 2017. BOEM published a call for information and nominations in 2014 but received only one nomination, raising concerns about the competitiveness of any such lease sale, Interior said.
“In light of Shell's announcement, the amount of acreage already under lease and current market conditions, it does not make sense to prepare for lease sales in the Arctic in the next year and a half,” said Interior Secretary Sally Jewell.
Royal Dutch Shell Plc announced in September that, after years of regulatory hurdles and litigation and two unsuccessful drilling seasons, it was giving up on exploration work in the Chukchi and Beaufort seas for the foreseeable future (188 DEN A-2, 9/29/15).
Interior has Beaufort and Chukchi lease sales in its proposed five-year offshore leasing plan for 2017-2022 (63 DEN A-1, 4/2/15).
Lease Extensions Turned Down
Shell and Norwegian company Statoil ASA had requested suspensions for leases they hold in the Chukchi Sea and, in Shell's case, also the Beaufort Sea. The suspensions would have allowed them to hold their leases beyond their standard 10-year limits.
The Bureau of Safety and Environmental Enforcement, an Interior agency, sent letters to both Shell and Statoil saying that they had not taken steps specified in the regulations to qualify for lease suspensions.
The subject is a sore point for industry and Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee. The regulatory challenges are so heavy and the drilling seasons so short in the Arctic offshore that companies and Murkowski have argued longer leases would be more appropriate.
Longer leases also would allow companies to hope for better market conditions—meaning higher prices for crude oil—several years in the future.
Murkowski has included a provision for longer Arctic offshore leases in a bill she introduced, the Offshore Production and Energizing National Security Act of 2015 (S. 2011). Her committee approved it July 30 on a 12-10 party-line vote.
‘Great News,' Group Says
The Interior announcement was welcomed in a statement from the Alaska Wilderness League, an environmental advocacy group.
“This is great news for the Arctic and our climate future,” the group said. “President Obama has made it clear that drilling has no place in America's Arctic Ocean. The president understands the risks of drilling in such a remote and dangerous ecosystem, as well as the dangers of climate change and that drilling in the Arctic Ocean will only make it worse.”
The Obama administration has not said drilling has no place in the Arctic Ocean, which is why Shell was allowed to drill in 2012 and again this year. But the administration did toughen regulations for drilling significantly.
The reaction from Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, was the opposite of the activist group.
“This administration has dangerous priorities,” Bishop said in a statement released late Oct. 16. “It drives Shell out of the Arctic by giving the company regulatory hell for years, then uses this victory for big special interest groups to stop any hope for future energy development in the Arctic.”
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Obama Pulls Plug On New Arctic Oil Drilling
Oct 16, 2015 | PoliticoPro
By Elana Schor
The Obama administration on Friday pulled the plug on plans to sell new oil and gas drilling rights in the Arctic waters, a pivot away from energy development in the environmentally sensitive region after Shell's costly failure to find crude there.
Interior's move to cancel the sales marked an acknowledgment of the dismal economic reality facing aspiring Arctic drillers, who had shown little interest in the potential lease sales amid a global downturn in oil prices. But it also gave greens the chance to take a fresh victory lap for their successful campaign to press Democratic presidential front-runner Hillary Clinton to publicly oppose all oil and gas development in the Arctic.
Sierra Club chief Michael Brune said in a statement that activists' campaigns against Shell, which walked away from its multibillion-dollar Arctic effort last month, "showed that people power can and will continue to overcome Big Oil."
The Interior Department announced it had scrapped Arctic oil and gas leasing sales planned for 2016 and 2017, and also said it would deny requests by Shell and Norway's Statoil to extend their current Arctic lease terms past the 10-year mark. Environmentalists cheered a move to scrap sales in a region they say is too environmentally sensitive to risk drilling, while senior House Republican Rob Bishop slammed the administration's "dangerous priorities."
Bishop, who is the chairman of the House Natural Resources Committee warned that Interior's decision risks giving Russia the lead in the race to develop the Arctic oil fields. "While the Obama administration pats itself on the back, [Russian President Vladimir] Putin is patting this administration on the head," he said in a statement. "Obama has once again played directly into Russia’s hands as he destroys our nation’s energy potential.”
And Sen. Lisa Murkowski (R-Alaska) said the decision was just the latest injury the administration had delivered to the state.
“This is a stunning, short-sighted move that betrays the Interior Department’s commitments to Alaska and the best interests of our nation’s long-term energy security," she said in a statement. "Today’s decision is the latest in a destructive pattern of hostility toward energy production in our state that began the first day this administration took office, and continued ever since."
Interior, which also decided against extending existing Arctic lease terms on properties controlled by Shell and Norway's Statoil, said the decision was an economic one.
"In light of Shell's announcement, the amount of acreage already under lease and current market conditions, it does not make sense to prepare for lease sales in the Arctic in the next year and a half," Interior Secretary Sally Jewell said in a statement.
Oil companies have slashed their spending because of the sharp drop in crude prices, and few were likely to pour money into risky investments in the Arctic after Shell's failure there.
In August, Clinton moved to the left of President Barack Obama by declaring her opposition to drilling in the Arctic waters — one in a series of positions that drew praise from the environmental wing of the Democratic Party — and that came amid a strong challenge to her campaign from Sen. Bernie Sanders (I-Vt.).
Environmentalists are likely to use the Friday decision to press the administration to abandon future plans for Arctic leasing in its next five-year offshore plan, which is set to be finalized in the coming months. But the Interior cancellation also puts fresh pressure on leaders in Alaska, where Independent Gov. Bill Walker described himself as "disappointed."
"Any action that limits our ability to explore for more oil — to increase much-needed oil production through the Trans-Alaska Oil Pipeline — creates unnecessary uncertainty and burden on our economy," he said in a statement.
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Obama Cancels Arctic Drilling Lease Sales
Oct 16, 2015 | The Hill - Congress Blog
By Timothy Cama
The Obama administration took a number of actions Friday to restrict future offshore drilling in the Arctic Ocean.
The Interior Department is canceling two lease sales it had planned over the next year and a half for Arctic drilling rights and denying two oil companies’ requests to extend the time on leases that they currently hold.The decision comes weeks after Royal Dutch Shell pulled out of the Arctic for the foreseeable future, saying the little oil it found in this summer’s drilling is not worth the cost.
The administration said its decisions are based on the current oil markets and low interest in Arctic drilling.
But it’s also a significant action to crack down on one of the most controversial types of offshore oil and gas drilling that has environmentalists fired up in opposition.
“In light of Shell’s announcement, the amount of acreage already under lease and current market conditions, it does not make sense to prepare for lease sales in the Arctic in the next year and a half,” Interior Secretary Sally Jewell said in a statement, complimenting her staff’s work overseeing the safety and environmental standards of Shell’s drilling in the Chukchi Sea, about 70 miles northwest of Alaska’s coast.
Shell’s Chukchi lease is due to expire in 2020. Norway’s Statoil had also requested an extension of a lease expiring in 2017 in the nearby Beaufort Sea, which was also rejected.
In letters to each company, the department said they failed to show sufficient plans to take advantage of the leases if their terms were extended.
The decisions were praised by environmentalists who have long called for Obama to block drilling in the Arctic due to its potential environmental and climate impacts.
“Today’s announcement moves us away from old arguments about companies’ unwise investments and toward better choices for the Arctic Ocean,” Susan Murray, vice president of the Pacific for Oceana, said in a statement.
“As Shell found out, the Arctic Ocean is unique and unforgiving,” she said. “Especially in light of economic, technological, and environmental realities, there is no reason to extend leases or hold new sales.”
The announcements are certain to bother the oil industry and Republicans, who have blamed Obama for a strict and unpredictable regulatory environment in the Arctic that makes exploration difficult in one of the most promising untapped regions for oil and gas.
Hilcorp, Eni, BP, Repsol, ConocoPhillips Co. and Iona Energy Co. also currently own drilling rights in the United States’ portion of the Arctic.
The Interior Department has proposed one Beaufort sale in 2020 and a Chukchi sale in 2022 as part of its 2017–2022 leasing program, but it has yet to make the plan final.
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Oil Companies Support Global Climate Change Accord
Oct 19, 2015 | BNA Daily Environment Report
By Angelina Rascouet and Maher Chmaytelli
Ten major energy companies declared their support for a global deal to prevent climate change but stopped short of offering unanimous backing for carbon pricing.
Producers, including BP Plc, Saudi Arabian Oil Co. and Petroleos Mexicanos—who together account for almost 20 percent of the world's oil and gas output—said in a statement they will back policies consistent with the goal of keeping the increase in average global temperatures to within 2 degrees Celsius (3.6 degrees Fahrenheit).
The joint conference in Paris Oct. 16 follows a June letter from BP, Eni SpA, Royal Dutch Shell Plc, Total SA, Statoil ASA and BG Group Plc urging governments to agree to carbon pricing at the United Nations’ climate change summit starting in the French capital Nov. 30. While the new Oil and Gas Climate Initiative added the support of companies from Saudi Arabia, Mexico and India, the broader group didn't agree on a common position on whether companies should pay a price to emit greenhouse gases.
“The OGCI doesn't have a position on [carbon dioxide] pricing, not a common one,” Helge Lund, chief executive officer of BG Group, told Bloomberg News at the conference in Paris. “The European companies have written a letter to the UN where we strongly support it,” Lund said, without naming the companies that didn't back carbon pricing.
The OGCI includes BG Group, BP, Eni, Pemex, Reliance Industries Ltd., Repsol SA, Saudi Aramco, Shell, Statoil and Total.
“Our shared ambition is for a 2 degree Celsius future,” the 10 CEOs said in a joint statement. “Over the coming years we will collectively strengthen our actions and investments to contribute to reducing the greenhouse gas intensity of the global energy mix.”
Chinese Producer Expected to Join Group
While no U.S.-based companies are part of the group, one big producer from China should join this year, said Total CEO Patrick Pouyanne. China is the world's biggest emitter of carbon dioxide.
“It's an open club; whoever wants to come is welcome,” Pouyanne said on the sidelines of the Oct. 16 conference. “Most of my U.S. peers are also engaged in the climate change” issue, he said, adding that some of the oil companies present in Paris also had major U.S. operations.
Exxon Mobil Corp. said in May it wasn't going to “fake it” when it came to its views on climate change, arguing that technology can provide solutions to any impacts that result from increasing global temperatures.
Saudi Aramco, the largest producer present in Paris with daily crude output of about 10 million barrels and 260 billion barrels of reserves, won't reduce its oil-production capacity, CEO Amin Nasser said.
“Oil will continue to contribute to prosperity over the long term,” and Saudi Arabia will maintain production capacity of 12.5 million barrels a day, Nasser said. “But we need to decouple the production of oil from carbon emissions” using technology to capture the gas and convert it into other useful chemicals, he said.
The “overwhelming majority” of Middle East oil reserves and 60 percent of its gas reserves must remain unburnt to prevent an increase in global average temperatures of more than 2 degrees Celsius, researchers at University College London said in a January report.
Oil Prices Seen as Problematic
Environmental groups said oil producers are still part of the problem.
“The oil companies behind this announcement have spent years lobbying to undermine effective climate action,” Charlie Kronick, a campaigner at Greenpeace, said in an e-mailed statement. “Suddenly they expect us all to see them as the solution, not the problem. The world should thank them for their offer of advice and politely turn it down.”
The almost 60 percent slump in oil prices since June last year could make curbing emissions more difficult, Total's Pouyanne said. “I'm not sure it will help because when the oil price is low, the demand for oil is higher.”
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Congress Scoffs at Obama's Clean Power Plan Wish List
Oct 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
Congressional Republicans have a message for President Barack Obama's administration: Don't count on the federal budget for help in implementing your Clean Power Plan.
Obama administration requests for a $4 billion fund to reward states that go beyond their emissions reductions goals under the plan and for $25 million specifically to help states craft their implementation plans stand no chance of being funded, half a dozen Republican lawmakers told Bloomberg BNA in interviews.
“This is just something that's going to make him feel better, and it has no chance of ever happening,” Sen. Shelley Moore Capito (R-Ky.) told Bloomberg BNA with a laugh. “Congress is not going to dedicate $4 billion dollars [to an incentive fund].”
State groups—even those with members sharply critical of the rule—say the incentive funds should be supported and are essential for states, nearly all of which plan to develop implementation plans for the regulation.
Finalized in August, the EPA's Clean Power Plan (RIN 2060-AR33) seeks to reduce carbon dioxide emissions from the nation's fleet of existing power plants. It tasks state regulators with developing plans to meet emissions reduction targets, which will be phased in between 2022 and 2030. The regulation has not been formally published yet.
Proposed in February
Both new pots of money were included in the administration's fiscal year 2016 budget request for the Environmental Protection Agency.
The $4 billion fund would “support states exceeding the minimum requirements established in the Clean Power Plan for the pace and extent of carbon pollution reductions from the power sector,” according to the budget request.
Funds would be apportioned to every state, provided they undertake measures to accelerate or exceed the carbon dioxide emissions reductions, according to the agency's top air official.
Also included in the budget request was a $40 million boost to support state and local air quality management programs, of which $25 million would be specifically earmarked for Clean Power Plan implementation. The remaining $15 million would be allocated to carrying out other core air quality activities, according to the budget (22 DEN B-1, 2/3/15).
Fraction of the Need
State groups voiced support for both new sources of funding, but they recognized the $4 billion state incentive fund would likely face strong headwinds in Congress.
“We certainly understand that money is tight and, while it's an important program and we'd be disappointed if it were cut, it does have detractors in Congress,” Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA Oct. 16.
Alexandra Dunn, executive director for the Environmental Council of States, told Bloomberg BNA her group continued to support the fund but believed it should be accessible to all states and not just those that are able to eclipse their emissions reduction targets.
Unlike the incentive fund, both groups were unequivocal that it would be “inexplicable” for Congress not to provide the additional $40 million to support states implementing federally required air quality programs. They said the administration's funding request still falls well short of what they actually need.
That request for $40 million in additional “state Clean Air Act Section 105 operating grants falls far short of the federal investment that should accompany the extensive new air rules—particularly the Clean Power Plan,” Dunn said. “This amounts to $500,000 per state to support massive human and technical capacity, which by no standard is sufficient resourcing for rules that the administration has made national priorities.”
Becker said states face a shortfall of up to $500 million for air quality activities and floated what he called an “easy out”—provide the $40 million as a lump sum for state and local air agencies rather than earmarking $25 million for Clean Power Plan implementation specifically.
“I think Congress is focusing more on the earmarking of the funds for climate and less on an easy compromise, which is to remove the earmarking for climate and give flexibility to the states to spend it how they wish on air pollution activities,” Becker said.
Clint Woods, executive director of the Association of Air Pollution Control Agencies, told Bloomberg BNA Oct. 16 his group had no comment on proposed incentives.
‘Attempt to Buy Off' People
Back in Congress, Republican lawmakers were especially critical of the $4 billion fund to incentivize greater state action to reduce emissions, which they said the Obama administration had no plan to pay for.
“I think that's an attempt to buy off people,” Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, told Bloomberg BNA.
Senate Majority Leader Mitch McConnell's (R-Ky.) office declined to comment on either of the Clean Power Plan-related incentive funds proposed by the Obama administration, citing a pledge not to discuss ongoing budget negotiations.
But McConnell, as one of the biggest critics of the EPA regulation in Congress, has vowed repeatedly to use the appropriations process to push back against the Clean Power Plan (217 DEN A-12, 11/10/14).
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Clean Power Plan Opponents Gear Up for New Lawsuits
Oct 19, 2015 | BNA Daily Environment Report
By Andrew Childers
West Virginia and other states opposed to the Environmental Protection Agency's Clean Power Plan intend to file new challenges to the rule the day it is published in the Federal Register, sparking a second round of litigation over the carbon dioxide emissions standards for power plants.
“We anticipate we'll be filing the day that the regulation is printed in the Federal Register,” West Virginia Attorney General Patrick Morrisey (R) told Bloomberg BNA.
States and industry groups opposed to the Clean Power Plan had prior legal challenges to the rule in its proposed stage rebuffed by federal judges as premature, but with its publication expected this month, opponents are readying a new slate of arguments to push back on President Barack Obama's signature domestic climate change achievement. While opponents are expected to reiterate many of the same objections to the rule that they aired earlier, finalization of the rule will allow opponents to challenge the content of the rule and not just procedural flaws.
“Now that we have a final rule, this will open the door to legal challenges to the design of the final rule,” Kyle Danish, a partner at Van Ness Feldman LLP, told Bloomberg BNA.
The prior lawsuits, which asked the U.S. Court of Appeals for the District of Columbia Circuit to take the unprecedented step of blocking the proposed Clean Power Plan before it was final, focused almost entirely on “threshold questions” about whether the EPA even had the legal authority to pursue the rule. Those arguments are expected to be raised again, but the next wave of challenges is expected to expand to include attacks on the agency's determination of what constitutes the best system of emissions control and whether that can include emissions reductions that occur beyond the fenceline of the power plants themselves.
“During the litigation on the proposed rule, the challenges held off on raising those sorts of issues because they thought they had the best chance of getting into court on the purely threshold statutory question,” Danish said.
The EPA Clean Power Plan (RIN 2060-AR33) sets unique carbon dioxide emissions standards for the power sector in each state that will be phased in between 2022 and 2030. 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.
The D.C. Circuit had previously denied states and industry groups' petition to block the Clean Power Plan as premature, because the final rule had not yet been issued by the EPA (In re Murray Energy Corp., 788 F.3d 330, 2015 BL 180996 (D.C. Cir. 2015)).
Staying Rule an Uphill Battle
The first skirmish in the upcoming litigation will be states and industries opposed to the rule asking the court to halt its implementation until the litigation is resolved.
“We anticipate we will seek a stay. It's always been the goal of the states and the affected entities to ensure the merits can be evaluated on the case before any rule could possibly go into effect,” Morrisey said (see related story).
To win a stay from the court, opponents must show that they have a high probability of winning the case on its merits and that they would face irreparable harm by allowing the rule to go into effect in the meantime.
“The big arguments are going to be whether or not staying the rule will cause irreparable harm,” Richard Alonso, a partner at Bracewell & Giuliani LLP, told Bloomberg BNA.
Although the first emissions reductions are not required until 2022, states opposed to the Clean Power Plan are expected to argue that marshalling the resources necessary to develop the plans required to implement the EPA rule will constitute an irreparable loss of time and money should the rule later be overturned.
But Danish said getting the court to grant a stay will be “an uphill battle,” because the EPA has extended the initial compliance deadline and proposed a model federal plan that states can use to draft their own compliance strategy.
“I think it's harder to show the irreparable harms and costs the court will take note of,” he said during an Oct. 15 forum sponsored by ICF International.
David Doniger, director of the Natural Resources Defense Council's climate and clean air program, also doubted that opponents will be able to meet the bar for getting a stay.
“We don't think the Clean Power Plan foes will be able to show likely success on the merit or irreparable harm,” he said at an Oct. 14 event sponsored by the D.C. Bar.
Threshold Arguments Still Loom
Although the latest litigation is expected to broaden the range of challenges to the EPA rule, petitioners are expected to revive many of the same arguments they made about the agency's fundamental legal authority to even issue the carbon dioxide standards. Key among those challenges will be whether setting hazardous air pollutant standards for power plants under Section 112 of the Clean Air Act negates the EPA's ability to issue carbon dioxide standards under Section 111(d).
“I don't see how a court ignores it, because it goes to the ultimate question of whether EPA has any authority to do the Clean Power Plan,” Alonso said.
The EPA issued its Clean Power Plan under Section 111(d) of the Clean Air Act, which was last amended in 1990. At that time, two conflicting amendments—one passed by the House and one passed by the Senate—were adopted for that provision. The Senate language merely bars the EPA from regulating pollutants under Section 111(d) that are already subject to emissions limits under Section 112. The House amendment goes further, opponents of the Clean Power Plan say, barring the EPA from regulating industrial source categories under Section 111(d) for which it has already issued emissions standards under Section 112, as it has with power plants. The EPA has regulated hazardous air pollutants from power plants under Section 112 as part of its mercury and air toxics standards.
While both amendments were signed into law, only the House amendment appears in the U.S. Code, while both amendments appear in the statutes at large. Opponents of the Clean Power Plan argue that the House amendment was more substantive and therefore should take precedence.
Morrisey said the plain language of the Clean Air Act will make it difficult for the EPA to argue it can pursue standards for power plants under both sections 111 and 112.
“No matter how hard they try to stretch the language of the Clean Air Act, it's difficult for them to overcome that thought,” he said.
But Doniger argued the court is likely to back the EPA's interpretation of its Section 111(d) authority.
“We're quite confident the D.C. Circuit will rule the EPA has the authority, in fact the obligation, to regulate [carbon dioxide] from existing sources once new sources have been regulated,” he said.
EPA Expands Ambiguity Arguments
Initial challenges to the proposed version of the Clean Power Plan—which Danish called “a scrimmage before the big game”—focused primarily on the issue of whether standards under Section 112 necessarily exclude regulation under Section 111(d). Although the D.C. Circuit ultimately chose not to address those questions while dismissing those lawsuits, that first round of litigation has given the EPA an opportunity to improve the legal underpinnings of the Clean Power Plan.
“The major thing they did is they came up with a new way of looking at that House amendment,” Danish said.
Initially, the EPA had argued that the conflicting amendments created a statutory ambiguity that the agency must be afforded deference to resolve. During the last round of litigation, the EPA developed a new argument that opponents' reading of the House amendment is not the only plausible interpretation and that the House language itself was ambiguous and could be read to support the agency's carbon dioxide standards. That updated interpretation found its way into the EPA final rule (153 DEN A-7, 8/10/15).
Morrisey said the arguments being advanced by the EPA now are “ really untested.”
“They're being advanced for purposes of litigation,” he said.
Although the EPA is expanding its argument for the ambiguity of the statute, William Bumpers, a partner at Baker Botts LLP, said the agency's interpretations may not be entitled to deference from the court.
“The ambiguity that they're talking about is not the ambiguity EPA typically relies on to assert they're entitled to deference,” Bumpers said at the ICF International forum. “Normally, if there's ambiguity in language that results in technical decisions from EPA, then EPA gets deference. In this case, the ambiguity is one of legislative construction. It's not within the expertise of EPA to determine which portion of these two competing provisions ought to be given greater weight.”
Revisions Meant to Shore Up Legality
The EPA significantly revised its final Clean Power Plan from its proposed version in an effort to shore up its legal foundation.
“The agency actually learned something during the comment period and they responded to it. So one could look at a change, at that time, as a positive,” Lisa Heinzerling, a law professor at Georgetown University and a member of Obama's EPA transition team, said at the Oct. 14 D.C. Bar event.
Among the revisions were extending the initial compliance date from 2020 to 2022 and updates to its best system of emissions reduction that dropped energy efficiency requirements for states.
“They dropped energy efficiency, and I think wisely, if they want to defend this rule. It helps their case,” Bumpers said.
However, he said the Clean Power Plan represents an unprecedented approach by the EPA, requiring power plants to achieve emissions reductions from beyond the fenceline of their own facilities by shifting generation to cleaner natural gas or renewable energy, which could mean to competing utilities. Previous rules under Section 111 only focused on the emissions reductions that could be achieved within regulated facilities themselves.
“This is an unprecedented change in the interpretation of 111(d), and I think it's going to be greeted with a large dose of skepticism by the courts,” Bumpers said.
Although the EPA has moved to improve the legal arguments for the Clean Power Plan, Bumpers said another significant vulnerability to the rule will be that including natural gas and renewable power generation in the emissions rate calculations effectively creates a performance standard for existing power plants that is more stringent than that being imposed on new units. Though best system of emissions reduction is defined only once under Section 111 of the Clean Air Act, Bumpers said the EPA has offered multiple interpretations of that provision that vary from regulation to regulation.
“I think the court might be skeptical of setting standards that are so inconsistent,” he said.
Constitutional Arguments Renewed
Opponents of the Clean Power Plan are also expected to renew constitutional arguments against the rule, although lawyers said those challenges are less likely to be persuasive to judges than those grounded in the Clean Air Act itself.
“As a general rule, the constitutional issues are important, but the strongest case for both parties would be to formulate their arguments based on the actual language of the Clean Air Act and not the Constitution,” Alonso said.
Harvard Professor Laurence Tribe, who represented Peabody Energy in early challenges to the Clean Power Plan, had argued to the D.C. Circuit that the Clean Power Plan violates the 10th Amendment because it commandeers state resources to enforce a federal regulation. Energy policies remain the purview of state regulators and not the EPA, he argued.
Morrisey predicted those arguments will once again be raised in new challenges to the Clean Power Plan.
“In essence, one of the real problems we're seeing with this final regulation is the federal government is trying to invade the states’ space and states are in possession of police power,” Morrisey said. “The federal government doesn't have the power to come in and manage state energy portfolios or commandeer state machinery to effectuate its will. So we expect those issues will get tested in court.”
However, other attorneys said judges would be much less likely to strike the rule on constitutional grounds than they would for statutory reasons.
“Most lawyers would agree the constitutional challenges, those present a somewhat higher bar,” Danish said.
Opponents to Target New Plant Standards
One other avenue for opponents seeking to block the Clean Power Plan will be legal challenges to the EPA's new source performance standards for new power plants (RIN 2060-AQ91) issued under Section 111(b) of the Clean Air Act. The Clean Air Act only allows the agency to regulate existing sources under Section 111(d) if it has already regulated new units under Section 111(b).
“There are not a lot of coal plants being proposed to be built, so it's not about that so much as the linkage to the existing source rule,” an environmental attorney who participated in the previous litigation over the Clean Power Plan told Bloomberg BNA.
Chief challenge to the new source performance standards will be the EPA's decision to set a carbon dioxide emissions rate for new coal-fired units that effectively would require the use of partial carbon capture technology (149 DEN B-3, 8/4/15).
“There are some questions about the way EPA has proposed to regulate new power plants and, in particular, its assumption about the availability of carbon capture and sequestration technology for new coal-fired power plants, which is a technically disputed area,” Danish said at the ICF International forum.
Morrisey said states opposed to the EPA rule are also looking closely at the option of challenging the new source performance standards as well as another avenue to attack the Clean Power Plan.
“We've been looking closely at that, and we believe there are severe deficiencies associated with 111(b),” he said.
Utilities Urged to Comply
Although the Clean Power Plan will face myriad legal challenges, attorneys are still advising utilities to work with state officials on their compliance strategy. Though some opponents of the rule, including Senate Majority Leader Mitch McConnell (R-Ky.), have urged states to boycott compliance, a strategy dubbed “just say no,” attorneys said utilities need to be prepared should the rule ultimately be upheld.
“I've been telling our clients to work with the states on developing the initial submittal,” Bumpers said. “Assume this rule is going to be upheld. It's bad policy, bad economics, bad business judgment to just assume it's not going to be there.”
States that choose not to develop their own implementation plans are effectively handing over their compliance strategy to the EPA, Bumpers said.
“Not submitting an initial plan is abdicating to a federal plan,” he said.
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Panel Wades Into Legality Of EPA Rule As Publication Looms
Oct 19, 2015 | E&E Daily News
By Jean Chemnick
A key subcommittee of the House Energy and Commerce Committee will review the legal arguments against U.S. EPA's Clean Power Plan this week as stakeholders wait for the imminent publication of the landmark climate rule.
When the Energy and Power Subcommittee holds its hearing Thursday, the rules for new, modified and existing power plants may have already been published in the Federal Register. And that will set off a chain of events in the courts and on Capitol Hill that will consume much of the rest of the Obama administration and determine the fate of the central platform of the president's Climate Action Plan.
But while Republicans in the House and Senate are expected to devote some time this fall to knocking down the landmark climate rule, the question of whether the Clean Power Plan survives Obama's presidency will likely be resolved in the courts.
Partisans on both sides of the issue say they are confident they will prevail. Environmentalists who have long sought carbon curbs for power plants say these are amply supported by the Clean Air Act and previous Supreme Court decisions that confirmed that EPA could use the statute to tackle greenhouse gases.
Republicans and industry, meanwhile, say the agency has pushed the Clean Air Act to the breaking point with this rule and have already previewed arguments ranging from concerns about the rule's structure to claims that EPA is barred from introducing new carbon power plant regulations at all.
Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) said at an Oct. 7 hearing on the final EPA rule that there were "many reasons to question the legality of this unprecedented set of regulations."
"Few if any of the concerns about the proposed existing source rule were addressed in the final version," he said, touting his bill that would allow states to opt out of compliance.
While only a handful of states have said they will pursue a "just say no" approach and refuse to comply with the rule, many more are poised to sue.
Fifteen states filed a lawsuit to block the draft, and when the final version was unveiled on Aug. 3, they immediately petitioned for an emergency stay. When the rule is published, their challenges will no longer be premature, and opponents will have 60 days to file petitions for review with the courts signaling they intend to sue.
Stay motions will follow, likely in the first quarter of next year. To secure a stay, litigants must prove that they face irreparable harm if the regulation remains in effect until the courts issue a decision and that they are likely to win. That's the standard a group of states met when the Cincinnati-based 6th U.S. Circuit Court of Appeals stayed a controversial Clean Water Act rule nationwide earlier this month (Greenwire, Oct. 9).
But some experts who track the marquee climate change rule say the final version makes it tricky to show irreparable harm. States don't even have to submit final plans until 2018, they note, and implementation doesn't begin until 2022. Meanwhile, opponents and the Obama administration both wish to expedite judicial review, hoping the U.S. Court of Appeals for the District of Columbia Circuit will have ruled by the end of next year -- before states must submit plans and before the Obama EPA and Department of Justice hand the rule off to a possibly hostile new administration in 2017. A Supreme Court decision could take an additional year or longer -- likely arriving after Obama's successor is in office.
Many of the potential arguments that opponents will use are well known, thanks in part to all the premature challenges. Opponents have raised issues of constitutional law, questioning whether the rule seeks to commandeer the states by giving them the choice to either regulate their utilities themselves or leave it to the federal government to do it. They also contend that a discrepancy in the 1990 Clean Air Act amendments bars EPA from using Section 111(d) to curb power plant carbon because the agency is already regulating power plants under Section 112 -- albeit for different pollutants.
David Doniger, director of the Natural Resources Defense Council's clean air and climate program, said at a D.C. Bar Association event last week that these challenges were "in the nature of throwing spaghetti at the wall to see what sticks."
Lisa Heinzerling, a Georgetown Law professor and former EPA climate official, said the constitutional law questions, including those often raised by Harvard Law professor Laurence Tribe, are "casual" and "not deeply argued." If Tribe -- who has gained particular notoriety among Republicans for being a one-time mentor of President Obama -- wanted to upset past precedent that gives deference to the agency, he needs to make a stronger case, she argued.
Jeff Holmstead, an EPA air chief under George W. Bush who is now a partner at Bracewell & Giuliani, told a Koch Industries Inc. questioner at the same event that he thought the Supreme Court had established that EPA could use the Clean Air Act to regulate greenhouse gas emissions. And he called the final version of the rule "less illegal" than the draft version. But he nonetheless expressed confidence that it would not pass legal muster because of its "beyond the fence line" structure.
The rule would cut power sector emissions by 32 percent below 2005 levels by 2030 -- a much steeper cut than power plants could achieve simply by improving their heat rates individually. In fact, as Holmstead pointed out, many states have little ability to comply unless they engage in interstate emissions trading.
"What EPA has done is completely contrary to the language of the statute," he said. EPA has departed from past practice by demanding that utilities do more than they can do at their own facilities while still continuing to operate them. The agency is not entitled to deference in this case, he said, because if Congress had intended to grant such broad control over an economic sector, it would have been very explicit.
Doniger, meanwhile, noted that the Clean Power Plan plays an important role in what U.S. negotiators will take to Paris for this year's high-stakes round of U.N. negotiations.
"It has established the bona fides of the United States," he said, persuading other countries to also put forward commitments.
"If our opponents would be successful in knocking the Clean Power Plan down, it would be a blow not only to domestic action but to international action," he said.
The subcommittee had not yet released its witness list Friday.
Schedule: The hearing is Thursday, Oct. 22, at 2 p.m. in 2123 Rayburn.
Witnesses: TBA.
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It's Conference Season For EPA Carbon Rule
Oct 19, 2015 | E&E Power Plan Hub
By Emily Holden and Rod Kuckro
Starting today, Infocast will hold its second annual Clean Power Plan Implementation Summit. The first day focuses on using natural gas to comply with the rule. Tomorrow's and Wednesday's sessions kick off with remarks from U.S. EPA Associate Assistant Administrator and Senior Counsel Joe Goffman before delving into legal issues, carbon-cutting options and power system considerations. A variety of state environment and energy officials, as well as electric regulators, will speak. Panelists also include utility and grid organization leaders, consultants, and environmental advocates. ClimateWire's Elizabeth Harball will be there.
Also today, the Great Plains Institute and Bipartisan Policy Center host a workshop in Little Rock, Ark., to discuss implementation options with states and utilities from all over the midcontinent region. The two groups have been supporting talks among the Midcontinent States Environmental and Energy Regulators group and the Midwestern Power Sector Collaborative. Federal Energy Regulatory Commissioner Colette Honorable will give the keynote address. EnergyWire's Jeffrey Tomich will report from Arkansas, and the event is also viewable by webcast.
Each Monday, Power Plays previews upcoming moves on the way to Clean Power Plan compliance and recaps the week's developments.
Tomorrow, the Distributed Sun 2015 New Energy Summit in Washington, D.C., will feature a keynote address by Goffman on the Clean Power Plan.
On Wednesday, the Environmental Council of the States -- the organization of state environmental agencies -- holds its own meeting on the Clean Power Plan. Panels will explore state perspectives on the rule's regulatory and economic challenges and feature more than a dozen officials from diverse states. Acting EPA air chief Janet McCabe and White House senior policy adviser Megan Ceronsky will speak.
At 2 p.m. Thursday, the House Energy and Commerce Subcommittee on Energy and Power will hold a hearing on the legal aspects of EPA's CO2 regulations for new and existing power plants. Greenwire's Jean Chemnick will be reporting.
In case you missed it: Five states face the highest Clean Power Plan compliance costs, according to Fitch Ratings (ClimateWire, Oct. 15). A group of states led by Tennessee will receive $800,000 from the Department of Energy to create a voluntary national energy efficiency registry, to standardize benchmarks for projects that could qualify for compliance with the Clean Power Plan (EnergyWire, Oct. 14). A Republican operative turned federal judge has emerged as one of the most powerful critics of President Obama's environmental rules (Greenwire, Oct. 13). Entergy Corp. will close Massachusetts' only nuclear power plant in 2019, which might complicate the state's efforts to reach greenhouse gas goals (Greenwire, Oct. 13). State officials in Minnesota held their first Clean Power Plan stakeholder meeting and are optimistic they can meet EPA's goals (ClimateWire, Oct. 13). Arkansas kicked off its planning process too and maintained a spirit of coordination (EnergyWire, Oct. 13). Missouri Attorney General Chris Koster, a Democrat, is joining a lawsuit against the rule (EnergyWire, Oct. 13).
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Obama, CEOs to Meet on Climate Change
Oct 19, 2015 | BNA Daily Environment Report
By Justin Sink
President Barack Obama is bringing executives from five Fortune 500 companies to the White House on Oct. 19 in a bid to shore up business support for combating climate change.
The roundtable discussion will include the chief executive officers of Johnson & Johnson, Intel Corp., Berkshire Hathaway Energy Co., Hershey Co., and PG&E Corp., as well as five other companies that act as suppliers to those corporations, a White House official said.
The executives and Obama will discuss “carbon mitigation, sustainability and resiliency and how technologies are emerging to support and scale these efforts,” according to the president's schedule.
Obama is working to build public support for a global climate accord that he's counting on as a legacy-defining achievement. At a United Nations-sponsored meeting in Paris in December, Obama and other world leaders will discuss an agreement that aims to limit global warming to 2 degrees Celsius above pre-industrial levels.
Vice President Joe Biden and other senior administration officials will hold a meeting following the president's roundtable with business representatives, science and technology leaders and environmental organizations to discuss the Paris talks. Dozens of companies are expected to participate in the summit, according to the White House official.
The White House has increasingly turned to the private sector to aid in its effort to tackle climate change, which the president has called one of the top priorities for the remainder of his time in office. Last month, the president spent three days in Alaska to highlight the impact melting icecaps had on American towns and businesses (170 DEN A-6, 9/2/15).
Corporations Commit to Decrease Carbon Footprint
In July, executives from 13 major corporations, including Apple Inc. and Goldman Sachs Group Inc., announced $140 billion in new investments designed to decrease their carbon footprints (144 DEN A-3, 7/28/15).
The White House also has rolled out a series of regulations designed to limit U.S. emissions in recent months. On Oct. 15, the administration proposed extending rules limiting the emissions of refrigerants called hydrofluorocarbons, which are thought to be “super” greenhouse gases because they trap substantially more heat than carbon dioxide (200 DEN A-4, 10/16/15).
The administration also announced $15 million in new grants to help coal mining communities impacted by the shift to cleaner energy sources.
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Administration Accused of Blocking Climate Deal Oversight
Oct 19, 2015 | BNA Daily Environment Report
By Anthony Adragna
Senate Republicans are crying foul over what they say is an attempt from President Barack Obama's administration to thwart oversight of the president's plans to reach an international climate agreement later this year in Paris.
The State Department, Environmental Protection Agency and White House Council on Environmental Quality are all refusing offers to testify before the Senate Environment and Public Works Committee, Chairman Jim Inhofe (R-Okla.) said in an Oct. 15 statement.
Instead, Todd Stern, the lead U.S. climate negotiator, will testify before a Senate Foreign Relations subcommittee Oct. 20 about the administration's plans for the Paris summit. But that only comes after Democrats objected to holding a joint hearing of the two committees, Inhofe said.
“I'm disappointed that Senate Democrat leaders are refusing to hold a joint hearing between the two relevant committees and refusing to sign the hearing invitation letters to witnesses,” the Senate environment committee chairman said in a statement. “I look forward to continuing to work toward inviting the State Department to the EPW Committee to testify as they have done many times in the past.”
The latest dust-up comes as congressional Republicans prepare to launch a multi-front attempt to undermine international negotiations. Those efforts may include a resolution denying Obama has the authority for an agreement, hearings and disapproval votes on environmental regulations intended to serve as the backbone for the U.S. commitment at the talks (198 DEN B-1, 10/14/15).
An aide to committee Democrats told Bloomberg BNA Oct. 16: “There were scheduling and other issues with this hearing. The Foreign Relations Committee is holding a hearing where the State Department will testify, and that hearing will focus on international issues.”
Inhofe Asks Administration to Reconsider
Inhofe asked the EPA, CEQ and State Department to reconsider their refusal to provide witnesses in separate Oct. 15 letters.
According to Inhofe, the State Department originally committed to testifying before the joint hearing but pulled out when those plans were scrapped, unless the EPA or the CEQ also testified.
The EPA and CEQ have told committee staff that the State Department would be best positioned to testify and said they don't have appropriate staff to participate in a hearing, according to Inhofe.
“CEQ officials have testified before the committee numerous times concerning the negotiations and oversight of international environmental treaties,” Inhofe wrote in his letter to the CEQ. “It is difficult to believe that the CEQ staff would have no role in the interagency discussions leading to Paris.”
If the administration continues to refuse to participate in the hearing, Inhofe requested a list of all staff members slated to attend the negotiations in December in Paris.
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Panel To Hear From Critics Of New Ozone Standard
Oct 19, 2015 | E&E Daily News
By Amanda Reilly
U.S. EPA's new ozone standard this week will suffer a round of criticisms at a House Science, Space and Technology Committee hearing.
The full committee plans to hold a hearing Thursday featuring witnesses who have raised concerns about EPA's efforts to lower the standard. GOP members of the committee have also previously questioned the science underlying EPA's justification for the new standard.
Ground-level ozone is a key component of smoggy air that's formed when nitrogen oxides and volatile organic compounds react in the presence of sunlight.
On Oct. 1, EPA announced that it was finalizing a new national ambient air quality standard of 70 parts per billion, at the top end of a proposed range but lower than the 75 ppb limit set in 2008 during the George W. Bush administration.
The committee postponed a prior hearing on the new ozone standard scheduled for earlier this month because a witness was ill (E&E Daily, Oct. 5).
On Thursday, Jeffrey Holmstead, a partner at Bracewell & Giuliani LLP who was EPA's air chief during the Bush administration, is scheduled to testify.
Lawmakers will also hear from Seyed Sadredin, executive director of the San Joaquin Valley Air Pollution Control District. The district has proposed a plan to relax Clean Air Act deadlines for local regulators in response to EPA's bid to lower the national ozone standard (Greenwire, April 13).
Sadredin has argued that the area in California -- home to 27,000 farms and 80 percent of California's oil production -- would have difficulty meeting the 75 ppb limit, much less a tighter standard. The San Joaquin Valley is considered in "extreme" nonattainment with the 75 ppb standard.
Local regulators have blamed pollution coming from Asia for high ozone levels and say they don't have much room to take action to improve air quality.
The Texas Commission on Environmental Quality's Toxicology Division director, Michael Honeycutt, who will also testify at the hearing, is likely to raise concerns that the costs of the new 70 ppb limit do not justify its benefits. Honeycutt has previously questioned whether a tighter ozone standard would have any health benefits, particularly for people with asthma.
No administration officials, environmentalists or public health advocates are scheduled to testify at Thursday's hearing. Green groups have argued that EPA's new ozone standard is too weak, but they've vowed to defend the Clean Air Act in Congress (Greenwire, Oct. 2).
Congressional opponents of EPA's new standard have pitched several pieces of legislation aimed at either delaying the update or making compliance easier for local regulators.
Last week, EPA Associate General Counsel Lorie Schmidt said that foes may attempt to use the Congressional Review Act -- a rarely used legislative oversight law -- to halt the new ozone standard.
But she expressed confidence that the new limit would survive congressional attacks.
Any legislation "has to be signed by the president, and if the president vetoes it, they have to get enough votes to override his veto," she said. "I think it would be quite difficult to get enough votes."
Schedule: The hearing is Thursday, Oct. 22, at 10 a.m. in 2318 Rayburn.
Witnesses: Jeffrey Holmstead, partner at Bracewell & Giuliani and former assistant administrator at U.S. EPA; Michael Honeycutt, director of the Toxicology Division at the Texas Commission on Environmental Quality; and Seyed Sadredin, executive director and air pollution control officer at the San Joaquin Valley Air Pollution Control District.
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Lawsuit Tests Limits Of Nonpoint Source Mandates In CWA Cleanup Plans
Oct 16, 2015 | InsideEPA
By David LaRoss
Environmentalists are pursuing a novel suit that could test how far regulators must go to secure "reasonable assurance" that Clean Water Act (CWA) cleanup plans will succeed, arguing that more-stringent, mandatory controls of nonpoint sources of pollution are needed for a Washington state creek.
A Sept. 28 complaint filed by Spokane Riverkeeper in the U.S. District Court for the Western District of Washington says any total maximum daily load (TMDL) plan that relies on reducing pollution from nonpoint sources, such as stormwater runoff from farmland, must include enforceable measures to reach those targets -- even though such pollution sources are normally exempt from CWA mandates.
"The 'Reasonable Assurances' section of the Hangman Creek TMDL does not include reasonable assurances of [nonpoint] reductions that are enforceable, transparent, not voluntary, or currently funded. In effect, the 'reasonable assurances' identified in the Hangman Creek TMDL are meaningless," the complaint says.
Advocates are asking the court to vacate the existing TMDL and force EPA and Washington state regulators to craft a new plan that includes either enforceable pollution control targets for fecal coliform bacteria, sediment and temperature from nonpoint sources or more stringent requirements for reducing discharges from point sources. Either avenue would set a precedent for stricter TMDL terms elsewhere, potentially including restrictions on voluntary pollution controls for nonpoint sources, which industry and many states have preferred to mandatory measures.
Such a ruling would build on the July 6 decision by the U.S. Court of Appeals for the 3rd Circuit upholding EPA's landmark TMDL for the Chesapeake Bay despite industry claims that its reasonable assurance provisions crossed over into usurpation of state implementation of the cleanup plan.
In that case, American Farm Bureau Federation (AFBF), et al. v. EPA, et al., Judge Thomas Ambro wrote for fellow Circuit Judges Jane Richards Roth and Anthony Scirica that "Farm Bureau's argument that the Act forbids the EPA from seeking reasonable assurance from the states that their Watershed Improvement Plans will meet their stated goals is also inconsistent with the purpose and structure of the Clean Water Act.'"
Reasonable assurance that nonpoint reduction goals will be attained is necessary to achieve the water law's goals, Ambro wrote.
Nonpoint Sources
The AFBF decision also bolstered regulators' power to set limits on nonpoint sources separate from limits on point-source discharges, which could be key in the Spokane Riverkeeper suit since the complaint claims Hangman Creek is impaired primarily by nonpoint sources, and that therefore targeting mainly point sources would be ineffective.
That state of affairs is why reasonable assurance requires stringent regulation of nonpoint sources, the complaint says.
"EPA ignored its own policies that require adequate reasonable assurances that nonpoint sources of pollution will be reduced in impaired waters polluted by both point sources and nonpoint sources of pollution," it continues.
The unanimous panel rejected claims from the industry challengers that EPA exceeded its CWA authority when it set separate allocations in the TMDL for point and nonpoint sources, holding that "Farm Bureau's reading of the Act would stymie the EPA's ability to coordinate among all the competing possible uses of the resources that affect" a waterbody.
While the 3rd Circuit ruling is not directly binding on district courts in Washington, which are part of the 9th Circuit, observers said the decision is expected to be influential in other jurisdictions -- potentially paving the way for similar multi-state pollution cleanup plans as well as setting a precedent on specific components such as reasonable assurance.
The CWA generally gives EPA direct authority to regulate only point sources -- those that discharge pollutants to protected waters directly through an outfall rather than contributing to overall runoff or another indirect path.
But AFBF confirmed EPA's long-standing practice of including in a TMDL separate "load allocations" that set maximum total pollutant levels attributable to point sources and "waste load allocations" (WLAs) for nonpoint sources. The court rejected industry's argument that WLAs are effectively federal controls on nonpoint sources and therefore should be seen as generally barred by the CWA's structure and intent. "Farm Bureau's reading of the Act would stymie the EPA's ability to coordinate among all the competing possible uses of the resources that affect the Bay. At best, it would shift the burden of meeting water quality standards to point source polluters," the opinion said.
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