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ACC am Oct 23
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(ACC Mentioned) Seattle Gets A $1 Million Campaign: It’s Promoting An ‘Honest Elections’ Initiative
Oct 22, 2015 | Seattle Pi
By Joel Connelly
Initiative 122, an “honest elections” ballot measure designed to make property owners pay for Seattle campaigns, has itself broken city spending campaigns by raising a whopping $1.134 million campaign war chest. The fundraising by “honest elections,” including six-figure donations from out of state, dwarfs the $222,682 collected... -
(ACC Mentioned) Kinder Dials Down Dividend Plan, Still Bullish on NatGas
Oct 22, 2015 | NGI's Daily Gas Price Index
By Joe Fisher
The midstream segment is not quite as immune to the commodity price downturn as Kinder Morgan Inc. (KMI) investors might have hoped. The company has retreated from an earlier pledge of 10% dividend growth as third quarter earnings missed analyst expectations. -
(ACC Mentioned) The Petroleum Quality Institute Of America Announces Certification Of Four Lubricant Manufacturers
Oct 23, 2015 | Your Petrochemical News
The Petroleum Quality Institute of America (PQIA), an independent organization with a mission to serve consumers of lubricants by testing and reporting on the quality and integrity of lubricants in the marketplace, today announced that four lubricant manufacturers have recently completed the rigorous PQIA Lubricant Certification Process... -
(ACC Mentioned) Voluntary Chemical Program Inadequate, Report Finds
Oct 23, 2015 | BNA Daily Environment Report
By Stephen Lee
The American Chemistry Council's voluntary safety program isn't working, a public interest group said Oct. 22. Companies enrolled in the ACC's Responsible Care program, which the group says helps members implement best practices, have continued to rack up serious safety violations, the Center for Effective Government said in a new... -
(ACC Mentioned) Chemical Safety Bill ‘Held Hostage,' Udall Says
Oct 23, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A floor vote on legislation to overhaul the Toxic Substances Control Act (TSCA) remains on hold due to senatorial disputes about how to proceed with the separate issue of reauthorizing the Land and Water Conservation Fund. In speeches delivered Oct. 21 on the Senate floor, Sen. Richard Burr (R-N.C.) said he would remove his objection... -
(ACC Mentioned) Maine Woman Celebrates Macy’s Pledge To Stop Selling Furniture With Flame Retardants
Oct 22, 2015 | Bangor Daily News
By Jackie Farwell
Three years ago, I interviewed a Portland woman who had just learned that potentially toxic chemicals were lurking in her house. Jenny Rottmann, due to give birth to her first child in a matter of days, worried the couch she’d purchased at a local department store could harm both her and her baby. -
Senators' Amendment Fight Blocks TSCA Bill Vote Despite Broad Backing
Oct 22, 2015 | InsideEPA
By Bridget DiCosmo
Senators' ongoing fight over offering amendments to legislation to reauthorize the Land & Water Conservation Fund (LWCF) is blocking any floor vote on Toxic Substances Control Act (TSCA) legislation, even though the TSCA bill has broad bipartisan backing and a commitment for a floor vote with only one amendment to consider. -
Smaller Silver Nanoparticles More Toxic To Fish
Oct 22, 2015 | Chemical Watch
By Emma Davies
Smaller silver nanoparticles are more likely to enter fish organs and to persist for longer than larger particles, according to a study by the University of California Centre for Environmental Implications of Nanotechnology. Silver nanoparticles are found in a wide array of consumer items, from cosmetics to socks. -
Sunscreen Ingredient is Toxic to Coral Reefs
Oct 22, 2015 | Environmental Working Group
By Paul Pestano
New evidence shows that a sunscreen ingredient EWG has long urged people to avoid is damaging to coral reefs. A study published [Oct. 20] in the journal Archives of Environmental Contamination and Toxicology found that even a tiny amount of oxybenzone, a common ingredient meant to block harmful ultraviolet radiation... -
CSB Demands Tougher Gas Overfill Rules
Oct 23, 2015 | BNA Daily Environment Report
By Stephen Lee
In another bid to shake off the dysfunction of its previous leadership, the Chemical Safety and Hazard Investigation Board approved recommendations stemming from a 2009 petroleum explosion during an orderly, efficient business meeting Oct. 21. The meeting, the first under new CSB chair Vanessa Sutherland, drew praise from stakeholders... -
Utilities Oppose Cybersecurity Amendments Set for Senate Vote
Oct 23, 2015 | BNA Daily Environment Report
By Ari Natter
A coalition representing utilities such as Exelon Corp. and Duke Energy Corp. is opposing amendments to Senate cybersecurity legislation (S. 754) that are scheduled to receive votes the week of Oct. 26. “The electric sector encourages passage of S. 754 and opposes amendments that would significantly undermine... -
(ACC Mentioned) Automated Train Extension Moves Forward In House Highway Bill
Oct 22, 2015 | The Hill - Transportation
By Keith Laing
A three-year extension of a federal deadline for a new automated train system that is currently set for December moved forward on Thursday in a $325 billion highway bill that was approved by the House Transportation Committee. The highway bill includes a provision that moves a Dec. 31 deadline for railroads to install an automated train ... -
House Transportation Panel Approves Six-Year Highway Bill
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
House Transportation and Infrastructure Committee unanimously approved by voice vote a $325 billion, six-year surface transportation reauthorization bill (H.R. 3763) just one week ahead of the Oct. 29 expiration of a short-term highway patch. Committee Chairman Bill Shuster (R-Pa.) said 150 amendments... -
House Panel Moves Sweeping Funding Bill -- Without Funding
Oct 22, 2015 | E&E News PM
By Sean Reilly
A House panel today overwhelmingly approved a long-term road and public transportation funding bill that would affect everything from crude-by-rail regulation to federal pollinator policy -- but only if lawmakers can resolve the thorny dilemma of how to pay for it. -
Interior Approves Conoco's Alaska Oil Drilling Plan
Oct 22, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The Interior Deparment today OK'd ConocoPhillips' bid to drill in Alaska's National Petroleum Reserve, setting the stage for the first federal fuel production in the area. The Bureau of Land Management's approval of the permit for the so-called Greater Moose's Tooth project will allow the company to construct an approximately... -
ConocoPhillips Gets Drilling Permit in NPR-A
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
ConocoPhillips Co. received approval Oct. 22 for a drilling permit and a right-of-way grant for development of the first well in the Greater Mooses Tooth Unit inside the National Petroleum Reserve-Alaska. The GMT1 site will be only the second commercial production site inside the NPR-A. ConocoPhillips ... -
EPA Tackling Oil, Gas Pollution Step-by-Step
Oct 23, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The Environmental Protection Agency is taking a step-by-step approach to controlling air pollution from the oil and gas sector, its leader said Oct. 22. After the agency proposed in August its first standards for curbing emissions of methane—a potent greenhouse gas—at new or modified oil and gas facilities, the next big question... -
Park Service Releases Plan on Oil, Gas Regulations
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
A plan for additional fees and permitting requirements for oil and gas drilling and production in national parks has been released in the form of a draft environmental impact statement by the National Park Service. A notice of availability of the draft EIS is to be published in the Oct. 23 Federal Register... -
N.D. Policy Allowing Irrigation Water for Fracking Use Ends
Oct 23, 2015 | BNA Daily Environment Report
By Mark Wolski
North Dakota ended a policy that allowed farmers in the state to sell their irrigation water to oil producers for use in hydraulic fracturing operations. Jon Patch, director of water appropriations for the state, said the Oct. 18 decision, effective Dec. 31, ends a four-year policy that enabled more wells to be drilled... -
Lawsuits Expected With Clean Power Plan Publication
Oct 23, 2015 | BNA Daily Environment Report
By Andrew Childers
Advocates of carbon dioxide limits on power plants rallied support for the regulations as the Environmental Protection Agency publishes the rules in the Federal Register Oct. 23, opening the window for legal challenges to the standards. The EPA will publish its new source performance standards for carbon dioxide emissions from new... -
Numerous States Prepare Lawsuits Against Obama’s Climate Policy
Oct 22, 2015 | The New York Times
By Coral Davenport
As many as 25 states will join some of the nation’s most influential business groups in legal action to block President Obama’s climate change regulations when they are formally published Friday, trying to stop his signature environmental policy. In August, the president announced in a White House ceremony that the Environmental... -
Hearing Mulls Legality Of Rule On Eve Of Expected Lawsuits
Oct 23, 2015 | E&E Daily News
By Jean Chemnick
A key subcommittee of the House Energy and Commerce Committee yesterday offered what amounts to a preview of coming attacks now that U.S. EPA's Clean Power Plan has been published in the Federal Register and can be challenged in court. The Energy and Power Subcommittee has held many hearings on the existing power... -
Critics Seek Quick Action To Block Utility GHG Rules But Face High Bars
Oct 22, 2015 | InsideEPA
By Lee Logan
Beginning almost as soon as they are published in the Federal Register Oct. 23, critics of EPA's greenhouse gas rules for the power sector are planning a series of efforts to quickly block them, including lawsuits to stay the rules and congressional disapproval resolutions. -
EPA Sends Proposed Utility MACT Cost Assessment For OMB Review
Oct 22, 2015 | InsideEPA
By Anthony Lacey
EPA has sent for White House pre-publication review its proposed rule assessing the costs of regulating power plants with maximum achievable control technology (MACT) air toxics standards, responding quickly to the Supreme Court ruling that faulted the agency for not weighing costs when it first decided to craft the utility MACT. -
OMB Reviewing Proposed Cost Analysis of Mercury Rule
Oct 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A proposal intended to address the U.S. Supreme Court's finding that the Environmental Protection Agency was required to consider cost when it decided it was “appropriate and necessary” to regulate mercury emissions from power plants is now under review by the White House Office of Management and Budget.
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(ACC Mentioned) Seattle Gets A $1 Million Campaign: It’s Promoting An ‘Honest Elections’ Initiative
Oct 22, 2015 | Seattle Pi
By Joel Connelly
Initiative 122, an “honest elections” ballot measure designed to make property owners pay for Seattle campaigns, has itself broken city spending campaigns by raising a whopping $1.134 million campaign war chest.
The fundraising by “honest elections,” including six-figure donations from out of state, dwarfs the $222,682 collected by “Let’s Move Seattle,” the group promoting the $930 million transportation levy. It makes the $180,000 once spent by the American Chemistry Council in defeating a plastic bag ban look like chump change.
Under Initiative 122, Seattle citizens would not just vote in elections, but pay for campaigns. A hike in property taxes would pay for $25 “democracy vouchers,” given to each citizen and redeemable by candidates of his/her choosing. Public-financing advocates have poured $1.134 million into the “honest elections” campaign.
Opponents of I-122, under the banner of “No Election Vouchers,” report raising just $3,966.
The $1.134 million campaign kitty is explained by two facts of politics.
The national movement to promote public financing of campaigns has gone years without a breakthrough victory anywhere in America. Seattle represents its opportunity to get on the board and reintroduce an idea to the country.
The big donations include $200,000 from New York venture capitalist Sean Eldridge, whose expensive U.S. House campaign foundered last year. Public Voice, a Washington, D.C.-based public campaign lobby, has given $221,000. The Communications Workers of America have donated $25,000. Another national group, the Massachusetts-based Represent.Us, has donated $20,000. A separate Represent.Wa PAC has given $32,500.
The biggest local donor of time and talent, at $313,000, is the labor-linked Washington Community Action Network, best known for its minimum-wage work and for its 2012 hits on Republican gubernatorial nominee Rob McKenna. FUSE Voters and Fuse Washington, self-described as the state’s largest progressive organization, have donated just over $31,000.
“Honest elections” has also put together an extremely diverse set of donors.
Nancy Nordhoff, the Whidbey Island philanthropist, has given $5,000. Ex-Seattle School Board President Stephen Sundquist, a charter school advocate, has donated $1,000. The campaign has drawn those on opposite sides of some local battles. The Kshama Sawant Solidarity Foundation has given $150. David Meinert, a Seattle restaurateur and critical voice during the minimum wage debate, is in for $250.
Familiar progressive voices are prominent contributors of money and talent. “Honest elections” reports $20,440 from the Sightline Institute, an environmental research/advocacy group. The Service Employees International Union is in for $5,000. WASHPIRG, the Washington Public Interest Research Group, is down for $3,383, and NARAL Pro-Choice Washington is at $2,572.
While the Seattle left has made a big deal about business spending — witness breathless accounts in The Stranger about corporate money going to candidates it opposes — almost no coverage has been given to the massive war chest of a liberal-left campaign.
Initiative 112 is a sprawling measure, much more than a taxpayer-financed elections plan rejected by Seattle voters two years ago.
It would raise property taxes in order to collect $30 million over 10 years. The 2016 levy is estimated to be 1.94 cents per $1,000 of assessed value.
The money would pay for four $25 “democracy vouchers” given to each Seattle voter per city election, assignable and redeemable by candidates who agree to spending limits.
The measure would slap severe limits on donations by companies receiving city contracts totaling $250,000 or more in the past two years, or from individuals who spend $5,000 or more lobbying. Maximum campaign contributions would be reduced from an already-low $700 down to $500. Elected officials and their top aides would be prohibited from lobbying the city for pay for three years after leaving their positions.
The initiative even has a scarlet letter component. Compensated signature gatherers on initiatives would be required to display “PAID SIGNATURE GATHERER” on a badge, placard or sign.
Opponents argue that “democracy vouchers” can and will be sold under the table. They argue that the influence of interest groups will be increased; leaders will tell members and followers how to spend their vouchers. Such groups already tell people how to vote. Slate-making and endorsements by party groups, labor unions and special interests are as central to Seattle politics as was the case with big-city political machines of the early-mid 20th century.
“Honest elections” claims I-122 will shine a light on “dark money interests.”
But a lot of monied interests, from Boston to New York’s Hudson River Valley to Washington, D.C., are pouring in money, along with local interests with plenty of their own business at City Hall.
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(ACC Mentioned) Kinder Dials Down Dividend Plan, Still Bullish on NatGas
Oct 22, 2015 | NGI's Daily Gas Price Index
By Joe Fisher
The midstream segment is not quite as immune to the commodity price downturn as Kinder Morgan Inc. (KMI) investors might have hoped. The company has retreated from an earlier pledge of 10% dividend growth as third quarter earnings missed analyst expectations.
KMI reported third quarter earnings of 8 cents/share on revenue of $3.71 billion. Analysts had been expecting 19 cents/share on revenue of $3.83 billion. For the year-ago quarter the company had earnings of 32 cents/share on revenue of $4.29 billion. Net income for the third quarter was $183 million compared with $779 million in the year-ago quarter.
KMI shares were down more than 5% in late morning trading Thursday at about $29.61, far from the 52-week high of $44.71. During a conference call Wednesday afternoon, Executive Chairman Rich Kinder and other members of management swore off raising capital in an undervalued equities market.
"We're going to be judicious about using common equity...[W]e intend to use other means of raising equity so that we will not be required to issue common equity or access those markets through at least the middle of next year," Kinder said."...[W]e intend to continue covering all of our dividends with our generated free cash flow and remain investment-grade, watch our capex closely and continue within those parameters to grow our dividend."
CEO Steve Kean said dividend growth next year will likely be on the order of 6-10%. The 2015 dividend represents a 15% increase from 2014. "...[W]e believe we could still have grown the dividend at the rate we had projected last year; however, coverage would've been tight over the period and could have been negative part of the time," Kean said. "Other companies have elected to run at negative coverage, but we believe the prudent decision for KMI -- and we believe the market is telling us this -- is to continuing to grow the dividend but preserve coverage over the period."
Kinder said the company will have about $300 million of excess coverage to pay dividends for the year, which is less than what was previously budgeted. That budget had assumed $70/bbl for West Texas Intermediate and $3.80/Mcf for natural gas, though, he said.
"...[W]e are insulated from the direct and indirect impacts of a very low commodity environment, but we are not immune," Kinder said.
Nevertheless, Kinder is bullish on the natural gas story.
"...[O]ur natural gas operations produce over half of our cash flow, and we move about one-third of all the gas consumed in the United States. So to put it very simplistically as natural gas demand grows, so do we," Kinder said. He continued to enumerate four drivers of natural gas demand growth: power generation, exports to Mexico, liquefied natural gas (LNG) exports, and petrochemical sector demand.
"If you want to look at Kinder Morgan specifically, our gas transportation volumes for electric generation are up 18% year-to-date 2015 versus the same period 2014," he said.
Exports to Mexico are real and growing, Kinder said.
"Natural gas exports to Mexico for 2015 are expected to average 2.6 Bcf/d versus a 2014 average of 1.8 Bcf/d. That's an increase of 44%. This summer we found that natural gas exports had at times exceeded 3 Bcf/d. Over the next four years, Mexico is expected to add 10.5 gigawatts of new natural gas capacity, and it's expected that another 3.2 gigawatts of oil-fueled power capacity will switch to natural gas. Meanwhile, as I think most of us know, Mexico's gas production continues to decline."
Citing data from the American Chemistry Council, Kinder said nearly 250 chemical industry projects are on the books with a total investment of $147 billion from 2010 to 2023. Texas accounts for a large share of those projects, he said.
Additionally, the first exports of LNG from the Lower 48 are just around the corner with the startup of Cheniere Energy Inc.'s Sabine Pass terminal expected within months, Kinder said (see Daily GPI, Oct. 20).
In the company's natural gas segment, transport volumes were up 5% compared to the third quarter last year. Factors contributing to the increase were higher volumes on Texas intrastate pipelines due to higher Eagle Ford Shale production and increased deliveries of gas into Mexico; higher throughput on Tennessee Gas Pipeline resulting from new projects entering service, incremental Utica Shale production as well as greater power generation demand; and higher volume on the El Paso Natural Gas pipeline driven by demand from Mexico as well as greater power generation demand, the company said.
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Oct 23, 2015 | Your Petrochemical News
The Petroleum Quality Institute of America (PQIA), an independent organization with a mission to serve consumers of lubricants by testing and reporting on the quality and integrity of lubricants in the marketplace, today announced that four lubricant manufacturers have recently completed the rigorous PQIA Lubricant Certification Process, and are now PQIA Certified Lubricant Suppliers. The program certifies the quality management practices, product integrity, and labeling of motor oils marketed by lubricant manufacturers and distributors.
Certified companies will be authorized to use the PQIA Certification Mark on their motor oil packaging and marketing material. The four companies meeting the PQIA Certification standards include:
Chevron Products CompanyPinnacle OilWarren DistributionWarren Oil Company
According to Thomas F. Glenn, President of PQIA, "The program is structured to help assure lubricant manufacturers and distributors meet PQIA's standards, the requirements set forth by the American Petroleum Institute (API), the American Chemistry Council (ACC), and government regulations as they pertain to the manufacturing and marketing of lubricants." In addition to determining if products are made right, Glenn says, "The PQIA Certification Program is intended to help assure the products made are right for consumers. This means the lubricants meet claimed specifications, are not labeled deceptively, display appropriate API Service Symbols and/or Certification Marks, and include any cautionary statements specified in the Society of Automotive Engineers (SAE) Standard J183."
Glenn adds, "PQIA Certified Suppliers agree to the PQIA Code of Ethical Business Conduct (CODE), provide access to manufacturing and packaging facilities for PQIA plant audits and random and periodic sampling and testing of bulk and packaged lubricants." -
(ACC Mentioned) Voluntary Chemical Program Inadequate, Report Finds
Oct 23, 2015 | BNA Daily Environment Report
By Stephen Lee
The American Chemistry Council's voluntary safety program isn't working, a public interest group said Oct. 22.
Companies enrolled in the ACC's Responsible Care program, which the group says helps members implement best practices, have continued to rack up serious safety violations, the Center for Effective Government said in a new report.
The paper also pointed a finger at the federal government, saying the Occupational Safety and Health Administration and Environmental Protection Agency could do a better job of targeting their inspections.
But the ACC has also played a key role in limiting the federal government's power, the report found, having spent $182 million lobbying Congress and federal agencies between 2012 and 2014.
Self-Regulation Not Enough?
Launched in 1988, the ACC's Responsible Care program requires companies to undertake scientific analyses of their products, improve awareness about the safety and risks of chemicals during production and manufacturing and ensure that company executives “commit to a culture of product safety and accountability.”
The ACC has argued that OSHA and EPA regulation and enforcement aren't necessary because its Responsible Care program is adequate, according to the report.
To the Center for Effective Government, however, such claims belie the fact that seven of the 12 U.S. companies with the most serious workplace safety and environmental violations are ACC members, including BASF, Dow Chemical Co., DuPont and Honeywell. All ACC members are required to join the Responsible Care program.
Katherine McFate, the Center for Effective Government's chief executive officer, said in a statement that a reportable leak or explosion at a chemical plant happens every two days in the U.S.
“But the chemical industry keeps telling us companies can regulate themselves and no new oversight is needed,” McFate said.
“The Responsible Care program at the ACC is not working,” Brian Gumm, author of the report and senior policy analyst, said in a statement. “Self-regulation leaves workers and communities at risk.”
ACC Responds
The chemistry council immediately fired back.
“The [ACC] takes issue with the mischaracterization of industry's Responsible Care performance initiative in a recent report,” a council spokesman told Bloomberg BNA in an e-mail. “Safeguarding chemical facilities and the surrounding communities is the highest priority for ACC and all of our members, and for more than 25 years, Responsible Care has enabled great progress in enhancing the safety and security of our nation's chemical facilities.”
The U.S. chemical industry spends more than $14 billion per year in health, safety and security programs, the spokesman said.
Moreover, 2014 data show that “Responsible Care companies have a worker safety record that is more than five times better than the U.S. manufacturing sector as a whole, and almost three times better than the business of chemistry overall,” said the spokesman.
Evidence of Political Influence
The report also uncovered evidence of the ACC's active lobbying role. The group spent at least $1.8 million on 6,000 political ads during the 2014 electoral cycle, according to the paper, and more than 90 percent of its political spending between 2012 and 2014 went to Republican candidates.
The ACC is also a member of the American Legislative Exchange Council, a coalition of state legislators and business representatives, which, according to the report, has allowed it to block policy overhaul efforts at the state level.
The ACC further delays chemical safety revamping by teaming up with the Small Business Administration's Office of Advocacy, the report alleged. Last year, the Center for Effective Government issued a report charging that big business representatives have played a key role in advising and staffing the Office of Advocacy's small business review panels, thus allowing it to water down safety rules .
Too Few Investigations, Despite Problems
The paper further found that only 42 percent of all active chemical manufacturing plants have been investigated by OSHA, the EPA or state agencies over the past three to five years.
In part, that low rate of inspections is due to the fact that OSHA's enforcement budget has been cut by 14 percent since 2010, while the EPA's has fallen by 20 percent over the same period, the Center for Effective Government said.
Nevertheless, the facilities that were inspected amassed 8,270 serious violations totaling more than $100 million in penalties.
Of the 1,852 facilities that OSHA and state workplace safety agencies inspected, 66 percent had significant workplace safety violations between 2012 and 2014, the report found.
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(ACC Mentioned) Chemical Safety Bill ‘Held Hostage,' Udall Says
Oct 23, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A floor vote on legislation to overhaul the Toxic Substances Control Act (TSCA) remains on hold due to senatorial disputes about how to proceed with the separate issue of reauthorizing the Land and Water Conservation Fund.
In speeches delivered Oct. 21 on the Senate floor, Sen. Richard Burr (R-N.C.) said he would remove his objection to allowing the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) to proceed for a floor vote if senators would agree to an up-or-down vote to permanently reauthorize the Land and Water Conservation Fund (LWCF).
Sen. Tom Udall (D-N.M.) said “the current strategy of holding TSCA hostage for LWCF is not the proper one. This is the sort of thing that gives the Senate a bad reputation for dysfunction.”
Scott Openshaw, a spokesman for the American Chemistry Council, told Bloomberg BNA: “We're disappointed that the bill continues to be unnecessarily held up. The bipartisan compromise has the support of more than 60 Democrats and Republicans and is set to pass the Senate overwhelmingly. We are urging Leadership to get this worked out as soon as possible and to quickly bring the bill to the floor for its much deserved vote.”
S. 697 is supported by 60 Republicans and Democrats—including Burr, various industries and some environmental health organizations. It would overhaul TSCA and require the Environmental Protection Agency for the first time to assess the safety of chemicals in commerce and assure their safety before being allowed to enter commerce.
The conservation fund, which uses oil and gas royalties for recreation and conservation projects, expired at the end of September.
Proposals, Counterproposals, Objections, Pleas
During the Oct. 21 floor exchange, Udall said: “I take a back seat to no one in supporting the Land and Water Conservation Fund. It is extremely important in New Mexico and critical to enabling our outdoors economy.”
Udall suggested Burr attach an amendment, which would have extended the conservation fund through Dec. 11, to the Cybersecurity Information Sharing Act of 2015 (S. 754). Burr introduced S. 754, which was being considered by the Senate Oct. 21 and again on Oct. 22.
Burr objected to Udall's proposal, saying he wants permanent reauthorization.
Sen. Mike Lee (R-Utah) objected to permanent reauthorization, saying the conservation fund needs to be updated and reformed to boost money supporting maintenance of federal lands.
Sen. David Vitter (R-La.) implored colleagues to allow the chemical safety bill to reach the floor without amendments.
“With two hours of floor time, no amendment votes, we can pass this bill and move it on to the House,” Vitter said.
“That is virtually unheard of in the Senate, but it goes to the work that so many folks have done on both sides of the aisle,” Vitter said.
An aide to Lee told Bloomberg BNA Oct. 22 that the Utah senator also is prepared to vote in favor of S. 697 if there are amendments.
During his floor Oct. 21 floor statement, Burr dismissed critics of the procedural tactics he has used to focus attention on permanent reauthorization of the Land and Water Conservation Fund.
“I am doing what the Senate historically has always done, allowing any member of the Senate to exercise their authority to amend any piece of legislation,” he said.
“This whole deal on TSCA is to make me look bad,” Burr said. “I am willing to accept it. I have had the hounds sicced on me.”
“There was a nice orchestrated process that was supposed to make me back down. It is not going to happen,” Burr said.
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(ACC Mentioned) Maine Woman Celebrates Macy’s Pledge To Stop Selling Furniture With Flame Retardants
Oct 22, 2015 | Bangor Daily News
By Jackie Farwell
Three years ago, I interviewed a Portland woman who had just learned that potentially toxic chemicals were lurking in her house. Jenny Rottmann, due to give birth to her first child in a matter of days, worried the couch she’d purchased at a local department store could harm both her and her baby.
The pale green couch had been treated with Firemaster 550, a mix of chemicals including two ingredients that federal environmental officials had targeted at the time for review because of the potential health hazards.
Fast forward to today and that department store, Macy’s, is vowing to make sure its furniture suppliers don’t use toxic flame retardants, responding to public pressure from activists. Macy’s made the pledge while noting that it expects few manufacturers are still using the substances.
Other retailers, including Ikea Group, Wal-Mart Stores Inc. and Ashley Furniture Industries Inc., have already agreed to phase out the chemicals, according to the Environmental Health Strategy Center.
“While it’s still frustrating to me that I unknowingly brought toxic chemicals into my home at a time when I was trying to have a healthy pregnancy, I am very glad that things are finally changing,” Rottmann, who works for the environmental group, said in a news release. “This is a long-awaited victory for families in Maine and everywhere.”
Studies have found that exposing rats to high doses of Firemaster 550 can lead to lower birth weight and genital and skeletal deformities. Flame retardants also are associated with hormone disruption and neurological and reproductive problems.
But regulators haven’t been so quick to move against the chemicals. The Environmental Protection Agency says “it still doesn’t know enough about the flame retardant to take action,” according to the Chicago Tribune. The American Chemistry Council, the chemical industry’s national trade group, insists that flame retardants help save lives and pose no risk to human health.
In 2012, an investigation by the Tribune found that the chemical industry manipulated scientific findings to overstate the effectiveness of flame retardants and downplay the health risks.
While the EPA has taken no action, another government agency, the U.S. Consumer Product Safety Commission, is considering a ban on the chemicals.
Flame retardants are added to cushions for couches and other furniture, designed to keep them from catching on fire. The chemicals then leach out over time into household air and dust that’s breathed in by children, adults and pets. Infants can pick up the chemicals from dust as they crawl on the floor.
The campaign by health and environmental advocates was prompted by a change in California regulations that took effect on Jan. 1, lifting an old requirement that pushed furniture makers use the chemicals to prevent fires.
Today, Rottmann’s son Abe is three years old, and he’s been joined by a younger sister. At the time his mother bought the couch, there was no indication that the furniture contained any dangerous chemicals, she said.
There’s no requirement that couches — or many other products, such as car seats and mattresses — be labeled to indicate whether they’ve been treated with fire-retardant chemicals. But furniture and products that have a label stating that they meet the old California standard, called TB 117, nearly always contain them, according to the Green Science Policy Institute. Furniture without the label often does, as well, though.
Baby products made with polyurethane foam, including nursing pillows, high chairs and strollers, likely contain flame retardants, according to the institute.
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Senators' Amendment Fight Blocks TSCA Bill Vote Despite Broad Backing
Oct 22, 2015 | InsideEPA
By Bridget DiCosmo
Senators' ongoing fight over offering amendments to legislation to reauthorize the Land & Water Conservation Fund (LWCF) is blocking any floor vote on Toxic Substances Control Act (TSCA) legislation, even though the TSCA bill has broad bipartisan backing and a commitment for a floor vote with only one amendment to consider.
Sen. Tom Udall (D-NM), one of the two lead co-sponsors of the TSCA reform measure, warns that the fight is symptomatic of Senate “dysfunction” that is blocking broadly supported updates to the toxics law.
In an Oct. 21 pact, senators agreed to “hotline” the TSCA bill, S. 697, and move the measure to a floor vote with one amendment to the bill planned by Sen. James Inhofe (R-OK) that would substitute an earlier version of the bill with a revised measure that prompted Democratic Sens. Ed Markey (MA) and Richard Durbin (IL) to support the legislation. S. 697 now has at least 60 declared supporters, enough to overcome a potential filibuster threat.
Sen. Barbara Boxer (D-CA), ranking member on the Environment & Public Works, was seen as the likeliest senator to filibuster the bill due to her concerns about its preemption of state chemicals programs.
But a Senate source says that while Boxer continues to withhold support for the bill, she secured “sufficient changes” in past several weeks, facilitated by negotiations with Inhofe. As a result, she has agreed to allow the bill to get a vote -- although she plans to work toward additional changes. As ranking member on EPW, Boxer could do that through conference talks to reconcile S. 697 with a TSCA bill the House approved in June.
Sen. Benjamin Cardin (D-MD), who along with Boxer and three other senators voted against the legislation in a 15-5 vote during an EPW markup in April, told Inside EPA Oct. 21 that while “progress has been made” on the TSCA reform legislation, he has not yet had a chance to review all of the planned revisions.
However, Cardin said, given that senators on both sides of the aisle that the “current law is inadequate,” they agreed to allow the legislation to proceed so that further discussions can take place.
Cardin said he remains concerned that some of the language in the bill regarding testing is “unclear,” and over the legislation's provisions blocking state chemicals programs in some circumstances.
Bill Revisions
The revisions to the TSCA bill that Inhofe will offer as the sole amendment on the floor were seen as clearing the path for swift floor approval of the measure, which would overhaul the 1976 toxics law.
During Oct. 21 floor proceedings, Udall and Sen. David Vitter (R-LA) -- the lead authors of the TSCA bill -- asked for unanimous consent to bring the bill to the floor, after both sides of the aisle agreed to a hotline that will allow the legislation to move without amendments, congressional sources say. “We have cleared this legislation on the Democratic side of the aisle with a short time agreement,” Udall said, according to a transcript of his floor remarks. “My understanding is that there is nearly unanimous sign off on the Republican side as well.”
But their push drew objections from GOP senators mired in a fight over the push to reauthorize the LWCF, which helps acquire and maintain park lands and is funded by companies drilling offshore for oil and gas.
Burr and Sen. Kelly Ayotte (R-NH) had been planning on offering a LWCF reauthorization measure as a rider to the TSCA bill once it hit the Senate floor. But Sen. Mike Lee (R-UT) opposes reauthorization to the fund without changes to how it operates, and the stalemate has had the collateral impact of blocking the TSCA bill.
Ayotte, Lee and Burr are supporters of the TSCA reform legislation, but their push on the LWCF has created major uncertainty about when a vote could take place on either the fund or the toxics bill.
While the TSCA bill currently has at least 60 declared supporters, attaching an LWCF measure could cause a loss of support that cuts S. 697's support to under the 60-vote threshold to defeat a filibuster.
Senate Dispute
During the Oct. 21 floor remarks, Burr, Udall, Vitter and Lee were involved in a back-and-forth about where to offer the LWCF amendment. Udall and Vitter sought unanimous consent to move S. 697, prompting Burr to then seek adding an amendment to reauthorize the LWCF. Lee objected to this, and Burr then objected to the unanimous consent request from Udall and Vitter -- the end result being another roadblock to the TSCA bill getting a vote.
Lee objects to reauthorizing the fund, which expired Sept. 30, without adding language that would address a massive backlog of maintenance projects on public lands, a spokesman from Lee's office says. The fund helps acquire and maintain park lands and is funded by companies drilling offshore for oil and gas.
In a bid to try and reach a solution on the issue, Udall sought to add a 60-day extension of the LWCF an an amendment to S. 754, a cybersecurity bill authored by Burr -- but Burr and Lee ultimately objected.
In his floor remarks on the cybersecurity bill, Udall sought to make the case that Burr should allow a vote on TSCA reform to proceed on S. 754, saying, “I can't tell you how disappointed I am. The Senator from North Carolina objects to making an unrelated amendment to his bill, but he insists on one to ours. It seems we are at a standoff -- a standoff with a bipartisan TSCA reform that has already moved through the Senate.”
Udall also said that the LWCF remains a high priority for him as the top Democrat on the Senate Appropriations Committee’s interior panel.
But he criticized senators for holding up the TSCA bill due to demands on unrelated legislation, he said, “I don't see how this would help matters. This dysfunctional situation is what gives the Senate a bad name.”
In response, Burr said that while the Senate allows any member to exercise their authority to offer an amendment, “recently that we have not allowed that to be exercised,” adding that, “I am not scared to have nongermane amendments on my bill. I have them, and because of somebody's fear, they will get knocked off and two Members of the Senate, a Republican and a Democrat, will not get their day to have a vote on their bill.”
Burr said that his objection is not due to Udall offering a short term extension of the fund, but that, “What I object to and what I am disappointed about is that there would be an offer to do a 60-day extension or a 1-year extension from a Member that I know supports permanent reauthorization, because this whole deal on TSCA is to make me look bad.”
Burr added that the reauthorization should be put to an up or down vote, saying he would then lift the objection blocking the TSCA bill, adding ”there is described the history of how the Senate has always worked. Let's get back to it.” Burr's office did not respond to a request for comment by press time.
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Smaller Silver Nanoparticles More Toxic To Fish
Oct 22, 2015 | Chemical Watch
By Emma Davies
Smaller silver nanoparticles are more likely to enter fish organs and to persist for longer than larger particles, according to a study by the University of California Centre for Environmental Implications of Nanotechnology.
Silver nanoparticles are found in a wide array of consumer items, from cosmetics to socks. The US researchers reference models predicting that over 60tonnes per year may reach surface waters.
Although many studies have compared particulate and ionic toxicity, few have looked at size effects, say the researchers. In rodents, studies have shown that 10nm diameter silver nanoparticles induce more inflammation and oxidative stress in the lungs than 110nm particles.
Led by André Nel, director of the centre, a research team exposed adult zebrafish to silver nitrate and two sizes of citrate-coated silver nanoparticles (20nm and 110nm diameter) for up to four days.
They focused, in particular, on “target organs”, the gills and intestines. Silver staining confirmed prominent silver deposition for 20nm but not for the 110nm particles.
The researchers found “striking and consistent” size-dependent structural differences in gills and intestines, caused by 20nm particles. They speculate that gill cells could mistake silver ions for sodium ions, disrupting ion channel function and inhibiting the enzyme ATPase.
Next, the researchers aim to determine whether the particles have health effects in fish. To do this, they will continue to use the zebrafish at "different life stages”, says co-author Olivia Osborne.
The study is published in ACS Nano.
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Sunscreen Ingredient is Toxic to Coral Reefs
Oct 22, 2015 | Environmental Working Group
By Paul Pestano
New evidence shows that a sunscreen ingredient EWG has long urged people to avoid is damaging to coral reefs. A study published [Oct. 20] in the journal Archives of Environmental Contamination and Toxicology found that even a tiny amount of oxybenzone, a common ingredient meant to block harmful ultraviolet radiation, can harm or kill corals by damaging the DNA in both mature and larval coral organisms.
Oxybenzone has also been shown to cause skin allergies in people and linked to hormone disruption based on animal studies. Despite these concerns, it is still widely used by sunscreen manufacturers. In EWG’s 2015 Guide to Sunscreens, about half the products on the market used this ingredient.
Another report published in the journal Environment International earlier this year highlighted the expected growth of coastal tourism. In light of this surge and the associated increase in sunscreen use, the new findings linking oxybenzone to coral degradation is even more disturbing.
With temperatures falling, we’re definitely not hitting the beach and slathering on sunscreen quite as much as a couple months ago, unless we’re heading south to warmer climates. However, oxybenzone is also in many daily-wear moisturizing products with SPF (sun protection factor) ratings. Whenever we take a shower or wash off these products, oxybenzone enters the wastewater stream and, ultimately, the oceans.
Given the potential environmental and health hazards associated with this ingredient (and many others used in personal care products), it’s important for consumers to read product labels carefully and avoid worrisome ingredients such as oxybenzone.
When you’re shopping for sun protection products, use EWG’s Guide to Sunscreens to find safer and more effective sunscreens and SPF moisturizers. Opt for products with mineral active ingredients, such as zinc oxide or titanium dioxide, and practice other sun-safety measures, such as staying in the shade, avoiding sun exposure during peak hours and wearing protective clothing.
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CSB Demands Tougher Gas Overfill Rules
Oct 23, 2015 | BNA Daily Environment Report
By Stephen Lee
In another bid to shake off the dysfunction of its previous leadership, the Chemical Safety and Hazard Investigation Board approved recommendations stemming from a 2009 petroleum explosion during an orderly, efficient business meeting Oct. 21.
The meeting, the first under new CSB chair Vanessa Sutherland, drew praise from stakeholders anxious to see the agency return to normalcy after months of controversy under its previous head, Rafael Moure-Eraso.
“It is really encouraging to see the board get back on track,” Mike Wright, director of health, safety and environment at the United Steelworkers, said at the meeting. “From the way this meeting has gone, and the way that we've seen all of the board members handle their responsibilities, we are confident that it will return to the kind of terrific agency that it's been in the past.”
Moure-Eraso resigned from the agency March 26 under a cloud of allegations about professional misconduct and failures of leadership.
Puerto Rico Explosion Findings Issued
Board member Manuel Ehrlich was the only dissenting voice during the board's vote to approve nine recommendations and a final investigation report into the 2009 explosion and fire at a Caribbean Petroleum Refining facility in San Juan, Puerto Rico.
The explosion happened when gasoline overflowed and sprayed out from a large above-ground storage tank, forming a large vapor cloud that was then ignited. Some 300 homes and businesses were damaged and liquid petroleum leaked into the surrounding soil. No one was killed.
The CSB's report pinned the explosion on a wide range of operational and regulatory lapses, such as broken measuring devices to determine liquid levels in the tanks. Further, the CSB said, Caribbean Petroleum had no backup layers of protection, such as an independent alarm system to notify operators about the spill and an automatic overfill prevention system that could have shut down the flow of gas.
Recommendations to OSHA, EPA
The recommendations directed the Occupational Safety and Health Administration to revise its Flammable and Combustible Liquids standards to require automatic overfill protection systems for gasoline, jet fuel and other flammable liquids.
Other recommendations called on the Environmental Protection Agency to require that operators of bulk above-ground storage tanks conduct risk assessments on nearby populations and sensitive environments, as well as the “realistic reliability” of their tank gauging systems. The board also called on the EPA to issue guidance or an alert as an interim measure.
During the vote to accept the recommendations and report, Ehrlich, who has clashed with the other board members in the past, offered a motion to delete the EPA and OSHA recommendations, arguing that they would be redundant and overly burdensome on industry. In their place, Ehrlich sought to substitute a recommendation that would direct the EPA to develop a program to improve the enforcement of overfill prevention requirements.
Fellow board member Richard Engler argued that the CSB isn't directed by Congress to conduct cost-benefit analyses for businesses. Ehrlich's motion failed to pass, with Sutherland, Engler and board member Kristen Kulinowski voting against it. The same three members also voted to adopt the report and recommendations, overcoming Ehrlich's sole abstention.
Updates on Investigations
The four CSB members also gave updates on ongoing investigations during the meeting.
The board said it plans to hold an interim public meeting in California sometime in December on the Exxon Mobil Refining & Supply Co. in Torrance, Calif.; aim for a November public meeting in Waco, Texas, on the West Fertilizer explosion of 2013; and try to complete a draft report on last year's Freedom Industries chemical spill in West Virginia by the second quarter of 2016 .
The West Fertilizer investigation report is in its final stages, Ehrlich said.
Further, the CSB is nearing the completion of the final two volumes of its Deepwater Macondo oil spill, with hopes of a public meeting in early 2016 to discuss and vote on them, and will soon circulate a draft report on its investigation of the 2013 explosion at a Williams Olefins chemical blast in Louisiana. The board wants to present its findings and vote on that report in early 2016, Sutherland said .
Board Members Address Controversy
Also during the meeting, Sutherland said the agency has enough funding to continue its current investigations through the end of the fiscal year. The government is operating under a continuing resolution until Dec. 11.
The board has begun working with the White House Office of Management and Budget on a funding request for the 2016 fiscal year, Sutherland said.
She also said she will continue to prioritize transparency measures such as public meetings, even though they take a bite out of the agency's budget.
“While there's a price for transparency, it's better than the alternative,” Sutherland said.
At other points during the meeting, both Sutherland and Engler gingerly addressed the recent controversies under Moure-Eraso's tenure.
“The atmosphere at the agency is very, very, very different and positive,” Engler said.
Sutherland acknowledged that she sees an opportunity to take the board in a new direction.
Personnel Cases Lingering
But the spectre of the CSB's recent turmoil continues to linger. Just one day before the meeting, the watchdog group Public Employees for Environmental Responsibility filed a complaint with the Office of Personnel Management, demanding the reinstatement of ousted CSB Managing Director Daniel Horowitz .
Horowitz had been put on administrative leave in June. PEER says his leave has dragged on for too long. Sutherland told Bloomberg BNA that she agrees with that assessment, and that she has told the outside investigator retained to investigate Horowitz's case to pick up the pace.
On Oct. 22, the EPA Inspector General issued another report finding that the board “must address its employee morale.”
The IG also wrote that CSB should do more investigations, improve its investigative management controls and assess the need for a chemical reporting regulation.
The CSB's next public meeting will be held in December, with another to follow in January.
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Utilities Oppose Cybersecurity Amendments Set for Senate Vote
Oct 23, 2015 | BNA Daily Environment Report
By Ari Natter
A coalition representing utilities such as Exelon Corp. and Duke Energy Corp. is opposing amendments to Senate cybersecurity legislation (S. 754) that are scheduled to receive votes the week of Oct. 26.
“The electric sector encourages passage of S. 754 and opposes amendments that would significantly undermine the information sharing incentives and legal protections in the bill or unnecessarily complicate information sharing efforts,” the coalition said in a letter obtained by Bloomberg BNA.
Specifically, the group said it opposes an amendment by Sen. Patrick Leahy (D-Vt.), that would eliminate a provision in the bill exempting utilities from Freedom of Information Act disclosures related to voluntarily shared information.
“Eliminating all specific references to FOIA protections from the bill would have a chilling effect on voluntary information sharing, undermining public-private security partnership efforts and thus potentially making critical infrastructure more vulnerable to cyber attacks,” said the letter.
At least one of the groups that signed the letter, the National Association of Regulatory Utility Commissioners, told Bloomberg BNA it would consider opposing the underlying legislation if the amendment is incorporated into the bill.
Other organizations that signed the letter included the American Public Power Association, the Edison Electric Institute, the Canadian Electricity Association, Electric Power Supply Association, and the National Rural Electric Cooperative Association.
Lawsuits Feared
Among other amendments the groups said they opposed was a measure by Sen. Al Franken (D-Minn.) that would narrow the definitions of “cybersecurity threat” and “cyber threat indicator” in the bill “in a way that would likely result in more litigation, thus creating another legal disincentive to voluntary information sharing, contrary to the fundamental purpose of the legislation.”
Both the Leahy and Franken amendments are scheduled to receive votes Oct. 27, according to a unanimous consent agreement announced Oct. 22.
The underlying bill, the Cybersecurity Information Sharing Act (CISA) by Sen. Richard Burr (R-N.C.), would provide legal immunity to companies that voluntarily share cyberthreat data with other private entities or the government.
The legislation comes as “small scale cyber and physical attacks” on the electric grid are estimated to occur once every four days, Rep. Randy Weber (R-Texas), chairman of the House Science Subcommittee on Energy, said during a hearing on grid security Oct. 21. Over 300 “significant” cyber and physical attacks have occurred since 2011, with no suspects identified, he added.
“Our electric grid is particularly vulnerable to growing cybersecurity threats as the grid is modernized, as distributed energy, electric vehicles, and modernized digital operating systems create more access points for cyber attacks,” Weber said.
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(ACC Mentioned) Automated Train Extension Moves Forward In House Highway Bill
Oct 22, 2015 | The Hill - Transportation
By Keith Laing
A three-year extension of a federal deadline for a new automated train system that is currently set for December moved forward on Thursday in a $325 billion highway bill that was approved by the House Transportation Committee.
The highway bill includes a provision that moves a Dec. 31 deadline for railroads to install an automated train navigation system known as Positive Train Control (PTC) to the end of 2018 at the earliest, possibly avoiding a partial railway shutdown.
The system, which regulates the speed and track movements of trains, has been touted as a game changer for train safety, but railroads have complained it is difficult to implement. Under the agreement that was approved by the House Transportation Committee on Thursday, railroads would have an extra three years to work on the automated train conversion. They will also have the option of requesting an extra two years to work on the installation if they submit plans for doing the work by Dec. 31, 2018. The requests would have to be approved by the Department of Transportation on a case-by-case basis.
Critics have complained the agreement will result in a "blanket five-year" extension for railroads to install technology that has been touted as a life-saver that can prevent deadly train accidents.
The extension was added to a highway funding bill by House leaders ahead of a six-hour markup that was held on Thursday.
Supporters of the extension applauded the House for including the provision in its highway bill.
"The legislation approved by the [House Transportation] Committee brings the House closer to settling the PTC issue, but it is critical that Congress finish the job right away to avoid a shutdown of passenger and freight rail service," American Chemistry Council President Cal Dooley said in a statement.
“Neither chemical manufacturers nor the U.S. economy can afford for the PTC deadline to get any closer without immediate congressional action," Dooley continued. "The stakes are too high for Congress to use this issue as political leverage to advance other goals. With a major transportation crisis just around the corner, Congress must act quickly to pass legislation before the end of this month that extends the PTC deadline.”
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 included language that 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, had 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 have also allowed the Transportation Department to grant exemptions to the automated train deadline beyond 2018 to individual rail companies on a case-by-case basis.
The provisions that have been added to the highway bill are being touted as a compromise between the two chambers' approaches to the automated train extension.
Critics of giving railroads more time to implement the automated train system are unimpressed with the details of the compromise proposal.
"This five-year extension of life-saving technology is way too long, with way too little guarantee that PTC implementation will get done," Sen. Richard Blumenthal (D-Conn.) said in a statement.
"A short-term patch of highway funding should not be the vehicle for such a profoundly important measure," he continued. "I will work for a reasonable measure that provides adequate time but holds railroads accountable through year-by-year review of progress toward fully-implemented PTC.”
Lawmakers have been feeling pressure to move the automated train deadline because several railroad companies, including Amtrak, have threatened to shut down service at the end of the year unless Congress relents on the mandate.
“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 Washington, D.C.-based American Public Transportation Association and the Association of American Railroads said this week. “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 as they have pushed Congress to move the mandate.
"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," Sen. 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.
Critics such as Blumenthal, 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," Blumenthal said in a statement after the House PTC extension measure was introduced in September.
"Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate," he continued then. "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.
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House Transportation Panel Approves Six-Year Highway Bill
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
House Transportation and Infrastructure Committee unanimously approved by voice vote a $325 billion, six-year surface transportation reauthorization bill (H.R. 3763) just one week ahead of the Oct. 29 expiration of a short-term highway patch.
Committee Chairman Bill Shuster (R-Pa.) said 150 amendments were filed for the bill, although many were withdrawn during a markup Oct. 22. The committee approved a manager's amendment that, among other things, would establish electric vehicle charging stations, create a motorcyclists advisory council at the Federal Highway Administration, and require a Government Accountability Office report on the status of the Transportation Department's autonomous vehicle policy.
Under the manager's amendment, the FHWA also would be required to study the performance of bridges that are at least 15 years old.
Tank Car Deadlines Addressed
Additionally, the manager's amendment would make less stringent tank car retrofitting deadlines for Class 3 flammable liquids other than unrefined petroleum or ethanol products moved by rail. Some unrefined petroleum products may see more strict retrofitting timelines under the amendment, too. It also would allow for research in cooperation with the National Academies of Sciences, Engineering and Medicine on hazmat issues ranging from emergency response to equipment and material testing.
The amendment is the latest addition to the House bill that aims to shape and push policy on crude oil rail transportation, an issue that has gained national prominence and fallen under public scrutiny following an increasing number of crude oil train derailments in recent years. The magnitude of these accidents have ranged from environmental harm to human deaths.
An additional five amendments were approved in block along with another six standalone amendments, including one that would lift some interstate weight restrictions for emergency trucks.
Garamendi: Boost Funding Levels
Language offered by Rep. John Garamendi (D-Calif.) that would increase highway and transit funding to the levels include in President Barack Obama's $478 billion, six-year transportation plan by requiring repatriation of offshore corporate earnings was rejected on an 11-42 vote.
Talks about developing a transportation package using one-time revenue from changes to U.S. international tax law stalled after congressional Republicans and third-ranking Senate Democrat Charles Schumer (N.Y.) disagreed about the price tag of the deal. Although those negotiations are continuing, House Ways and Means Committee Chairman Paul Ryan (R-Wis.) has signaled that tax revenue is unlikely to be included in the House's six-year highway bill.
Ways and Means has yet to provide a finance title for the bill, although the legislation is expected to include at least three years' worth of pay-fors similar to a Senate-passed highway bill.
“That's a terrible piece of legislation,” Garamendi told Bloomberg BNA regarding the House bill. “It would be bad enough if it was only for six months or one year, but six years? It's just a dereliction of our responsibility to build the foundation for American growth and the jobs that go with it, which are millions of jobs.”
Transportation Secretary Anthony Foxx also issued a statement suggesting Congress pass legislation with higher than baseline funding.
“It is good to see further bipartisan efforts to push through a surface transportation bill,” he said. “It would be better to see folks galvanizing behind meaningful increases in investment that would cut down on traffic while raising the bar on safety. Congress should be thinking big, not continuing the status quo.”
Administration Hasn't Been Helpful: DeFazio
Shuster said that Ways and Means was working to get more revenues in the highway bill.
House transportation panel ranking member Peter DeFazio (D-Ore.), who voted against Garamendi's amendment, said he also would like to see higher funding levels for highway and transit programs but said the priority should be to pass the legislation.
“It's critical that we pass this and then work to get more money and there is nobody, I think, who's offered more alternatives on how to get that money than me,” he said.
DeFazio further said that the Obama administration offered “scant” support of other proposed ideas for raising the revenue, including his proposal for a oil barrel tax and indexing federal fuel taxes for inflation.
Funding Talks Continue
The House highway bill is not expected to come to the floor until it has a finance title. Shuster said Ways and Means could identify funding for the legislation as early as next week.
“We're going to have to deal with that and we're working with leadership right now and the Ways and Means Committee to figure that forward,” he said. “Again the Senate pay-fors that they have, I think we'll be similar. But that's something we have to deal with here shortly.”
The $350 billion Senate-passed, six-year highway bill (H.R. 22) includes three years of guaranteed funding. It would transfer about $46 billion to the Highway Trust Fund and offset the cost by reducing Federal Reserve dividend payments to member banks and the sale of crude oil, among other things.
Meanwhile, lawmakers are still working out the details of a probable short-term extension of surface transportation programs ahead of the Oct. 29 expiration of the current patch. While Senate lawmakers are pressing to reconcile highway legislation by mid-November, Shuster and DeFazio said that timeline would be insufficient .
Intermodal Project Funding Debated
Also offered and withdrawn during the House markup was an amendment from Rep. Dan Lipinski (D-Ill.) that would lift a cap on competitive grant monies for intermodal projects. H.R. 3763 would create a $725 million competitive grant program for nationally significant highway and freight projects.
Intermodal projects would be eligible for only 10 percent of the annual budget. And the Coalition of America's Gateways and Corridors has been lobbying House transportation panel members to remove or raise the cap.
Rep. Tom Rice (R-S.C.) opposed the idea of providing more intermodal grant money, saying Highway Trust Fund dollars that are collected from fuel taxes should only be used for highway projects, not transit, rail or other industries that do not contribute user fees.
“The fact that we've allowed that to be diluted over decades, that is one of the reasons why the Highway Trust Fund is facing the problems that it's facing today,” he said.
But Rep. Jerrold Nadler (D- N.Y.), a co-sponsor of Lipinski's amendment, noted that 30 percent of the funds that go into the HTF are from the general fund. Intermodal projects should therefore be eligible for 30 percent of grant program funding, he said.
PTC Extension Could Get Separate Vote
The six-year House highway bill also includes a three-year extension of the Dec. 31 deadline for railroads to implement anti-collision, positive train control technology. Shuster said given the short time frame for rail carriers to start planning around that deadline, the House is likely to bring the PTC extension to the floor next week as a standalone bill.
The majority of railroads are not expected to meet the PTC deadline.
“I believe we need to move that next week because the railroads have already said by the end of the month, if we don't do something they're going to start to curtail, stop shipments of product and also passenger rail,” he said.
A similar PTC extension was included in a Senate-passed highway bill. Yet, some Senate Democrats like Barbara Boxer (Calif.) and Richard Blumenthal (Conn.) have threatened to oppose PTC extension legislation if it comes to the Senate floor as a standalone bill and not part of a multiyear surface transportation reauthorization bill.
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House Panel Moves Sweeping Funding Bill -- Without Funding
Oct 22, 2015 | E&E News PM
By Sean Reilly
A House panel today overwhelmingly approved a long-term road and public transportation funding bill that would affect everything from crude-by-rail regulation to federal pollinator policy -- but only if lawmakers can resolve the thorny dilemma of how to pay for it.
This afternoon's unanimous voice vote by the House Transportation and Infrastructure Committee followed a markup that lasted more than five hours and was greeted with applause from the crowd that packed the hearing room.
On paper, the $325 billion, six-year bill would run through fiscal 2021, with spending levels kept largely at status quo levels with upticks for inflation. In practice, the committee is seeking funding for only the first three years, similar to the approach taken by the Senate in H.R. 22, its version of a road and transit funding bill approved in July. But while the Senate also mustered approval for a three-year funding package, the House Ways and Means Committee has yet to deliver something comparable that's needed for the legislation to go to the full House.
The House bill is "a shell," Rep. Earl Blumenauer (D-Ore.) said today in a statement as the markup was getting underway. Blumenauer, not currently a member of the T&I Committee, is the sponsor of a bill to raise the 18.4-cents-per-gallon federal tax.
Speaking to reporters after today's markup, however, T&I Chairman Bill Shuster (R-Pa.) expressed optimism that the Ways and Means Committee will soon come through with the financing package, followed by a floor vote as early as the next week or two.
More immediately, Congress has to confront the Oct. 29 expiration of the existing stopgap transportation authorization. Without a replacement, federal funding for road and public transportation projects could dry up. Shuster said no decision has been made on the length of the next extension.
As today's markup played out before a standing-room-only audience, however, the mood among T&I Committee members at times verged on jovial -- heartened, perhaps, at tackling the kind of popular public works bill that once typified lawmakers' ability to accomplish big things.
"I am proud that we were able to work together and find common ground on this important bipartisan legislation," Shuster said at the outset. Committee members filed more than 150 amendments, most of which were withdrawn at Shuster's urging, usually with a pledge to keep working to address the issue at hand. One of the few exceptions came on a symbolic bid by Rep. John Garamendi (D-Calif.) to raise the bill's spending levels to the dramatically higher thresholds proposed earlier this year by the Obama administration.
But lawmakers have balked at the administration's plan to pay for the higher spending. Garamendi's amendment failed by an 11-42 margin as Shuster warned that it could doom the bill if adopted. Ranking member Peter DeFazio of Oregon and a number of other Democrats joined Republicans in voting no. Garamendi later offered a second amendment that would have raised more transportation money by targeting U.S. corporations that move their headquarters overseas to lower their tax bills. Shuster blocked what could have been a politically awkward vote on the grounds that financing issues are in Ways and Means' jurisdiction.
Of the total six-year spending authorized by the bill, $261 billion would go to the highway program, according to an analysis released yesterday by the American Road and Transportation Builders Association. The group called that amount inadequate to keep pace with inflation, whereas the $273 billion in the Senate bill would be enough to "narrowly maintain" the highway program's purchasing power.
Among other provisions, the bill would extend the deadline for implementation of the "positive train control" system from this December to as late as 2020; it also includes proposals to strengthen oil train tank cars and require large freight carriers to provide more information to emergency responders on crude-by-rail shipments.
The committee today also adopted features similar, if not identical, to language already in the Senate bill. The Department of Transportation would have to map out national corridors for electric vehicle, hydrogen and natural gas charging stations, with the goal of having the facilities running by 2021. DOT officials would also have to "encourage" states to sow vegetation beneficial to bees and other pollinators along highway rights of way.
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Interior Approves Conoco's Alaska Oil Drilling Plan
Oct 22, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The Interior Deparment today OK'd ConocoPhillips' bid to drill in Alaska's National Petroleum Reserve, setting the stage for the first federal fuel production in the area.
The Bureau of Land Management's approval of the permit for the so-called Greater Moose's Tooth project will allow the company to construct an approximately 12-acre drilling pad within the Alaskan reserve that is about the size of Indiana. More than 1.75 million acres are currently under lease in the reserve, according to BLM, but so far only exploratory drilling has been conducted there.
BLM Director called the move "an important milestone" in developing the reserve, and Senate Energy and Natural Resources Chairwoman Lisa Murkowski also hailed the permit approval in a statement.
But Murkowski also warned that the process took too long, adding that “this announcement marks yet another example of the tortured path Alaskans have been forced to navigate to develop on federal lands in our state.” ConocoPhillips first proposed the operation in 2002, she said.
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ConocoPhillips Gets Drilling Permit in NPR-A
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
ConocoPhillips Co. received approval Oct. 22 for a drilling permit and a right-of-way grant for development of the first well in the Greater Mooses Tooth Unit inside the National Petroleum Reserve-Alaska.
The GMT1 site will be only the second commercial production site inside the NPR-A. ConocoPhillips is drilling the Colville Delta 5 site into an Alpine field extension just a few miles inside the federal reserve, with first production of oil expected sometime this year.
ConocoPhillips has estimated about $900 million will need to be spent on developing GMT1. The company owns 78 percent of the project. Anadarko Petroleum Corp. owns 22 percent.
ConocoPhillips has not said when it might start drilling at GMT1 or when it will start building a road, oil pipeline and electric power line to the site, nor has it offered a time frame for first production.
The Bureau of Land Management, responsible for leasing in the NPR-A, approved the drilling permit and right-of-way grant. BLM Director Neil Kornze issued a statement describing the decisions as part of a “collaborative effort to ensure thoughtful, balanced, and reasonable development in the NPR-A that will provide additional economic security for Alaskans as well as a new source of oil for the Trans-Alaska Pipeline System.”
Poor Precedent, Senator Says
Sen. Lisa Murkowski (R-Alaska) issued a statement welcoming the approvals from BLM but lamenting the “tortured path” needed to get this far on federal lands and in the face of the procedural steps of the National Environmental Policy Act.
“The GMT-1 project was initially proposed in 2002 and has been subject to multiple plans and NEPA processes over the years. Each one added compounding mitigation requirements and stipulations that have either complicated or delayed the project,” Murkowski said.
“The protracted process and requirements GMT-1 has been subject to must not be a precedent for development in the NPRA,” she said. She has often objected to BLM red tape tying up oil and natural gas work on federal lands (93 DEN A-14, 5/14/15).
ConocoPhillips plans construction of an 11.8-acre drilling pad at GMT1. The pad is to have eight wells to start, with a capacity of up to 33 wells. The company estimated peak production could be 30,000 barrels a day of crude.
ConocoPhillips will build a road and pipeline about 7.7 miles long connecting GMT1 to the Colville Delta 5 site, which in turn will be connected by road and pipeline to the central processing site of the Alpine field just outside the NPR-A. From there pipelines already connect to the Kuparuk field and then to the start of the Trans-Alaska Pipeline at Prudhoe Bay.
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EPA Tackling Oil, Gas Pollution Step-by-Step
Oct 23, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The Environmental Protection Agency is taking a step-by-step approach to controlling air pollution from the oil and gas sector, its leader said Oct. 22.
After the agency proposed in August its first standards for curbing emissions of methane—a potent greenhouse gas—at new or modified oil and gas facilities, the next big question is whether it will regulate existing oil and gas facilities, too. The EPA has given no indication of when that might happen (160 DEN A-1, 8/19/15).
EPA Administrator Gina McCarthy didn't offer any hints in an appearance at the Center for American Progress Oct. 22.
“One of the things we're trying to look at right now is what are the gaps still in the system and how best do we close that gap and identify the technologies that are cost-effective to be able to close those gaps? That's the work that's going on,” she said.
Additional regulations will likely be needed if the Obama administration is to meet its overarching goal to cut methane pollution by as much as 45 percent by 2025. That reduction will come not just from the oil and gas industry—the largest industrial source of methane in the U.S.—but from landfills, coal mines and other sources as well (10 DEN A-1, 1/15/15).
Working With States, Industry
McCarthy said the agency is continuing to work with states and the oil and gas industry, both of which recognize that “we are still in our infancy on methane,” which is the second-biggest driver of climate change after carbon dioxide.
The agency's proposal builds on 2012 regulations aimed at controlling volatile organic compounds. Those regulations ended up slashing methane at the same time, with the largest reductions coming from hydraulically fractured oil wells, where emissions fell by 73 percent between 2011 and 2013.
The petroleum industry has pointed to those figures as proof that the EPA's latest rules are unnecessary. Producers favor voluntary measures instead because they already have an economic incentive to capture as much of their product as possible.
The EPA is encouraging oil and gas companies to voluntarily curb their emissions as part of a “methane challenge.”
“I think EPA is much better known in the broader public for what we do for our rules, as opposed to what we do for voluntary initiatives,” McCarthy said. “But voluntary initiatives do two things. They help develop relationships between regulators and industry and they are wonderful learning experiences for us.
“Before we regulate, we need a lot of learning, a lot of data.”
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Park Service Releases Plan on Oil, Gas Regulations
Oct 23, 2015 | BNA Daily Environment Report
By Alan Kovski
A plan for additional fees and permitting requirements for oil and gas drilling and production in national parks has been released in the form of a draft environmental impact statement by the National Park Service.
A notice of availability of the draft EIS is to be published in the Oct. 23 Federal Register, kicking off a 60-day public comment period that will end Dec. 22. A copy of the draft EIS has been posted on a park service website.
The National Park Service said the purpose of the action is to formulate “new requirements that will ensure that all non-federal oil and gas operations conducted in national park system units avoid or minimize, to the greatest possible extent, adverse effects on natural and cultural resources, visitor uses and experiences, park infrastructure and management.”
The draft EIS evaluates options for revising what are called the 9B regulations, from the Code of Federal Regulations at 36 CFR Part 9, Subpart B. The park service estimated it will have a final EIS available in spring 2016 and a final rule available in summer 2016.
Among the options for the regulatory revisions: eliminate exemptions from the 9B regulations; eliminate bonding cap on financial assurance for site reclamation, switching instead to bonding levels determined by estimated cost of reclamation; revise permitting requirements, including a requirement that previously grandfathered operations obtain an operating permit; and establish a fee for new access to a drilling or production site. Access typically means either a road or a pipeline or both.
Annual Cost Estimated
The National Park Service estimated the annualized cost to operators under the proposed rule will be approximately $1,650 per well.
The least amount of economic impact presumably would be felt by operators who reach an oil or gas field by drilling from outside the border of a park to a reservoir beneath the park without surface disturbance within the park.
“The updated rule will bring existing oil and gas operations up to NPS standards to protect water quality and water quantity, air quality, night skies and natural sounds, visitor and employee health and safety, fish, wildlife and habitat and meet spill protection and reclamation standards,” the park service said.
The park service said 12 of the 408 units in the national park system have active non-federal oil and gas operations within their boundaries, and about 60 percent of those operations are exempt from 9B regulations.
The proposal (RIN 1024-AD78) was sent to the White House Office of Management and Budget for review Feb. 2 (24 DEN A-5, 2/5/15).
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N.D. Policy Allowing Irrigation Water for Fracking Use Ends
Oct 23, 2015 | BNA Daily Environment Report
By Mark Wolski
North Dakota ended a policy that allowed farmers in the state to sell their irrigation water to oil producers for use in hydraulic fracturing operations.
Jon Patch, director of water appropriations for the state, said the Oct. 18 decision, effective Dec. 31, ends a four-year policy that enabled more wells to be drilled in the state's Bakken region. When the policy was instituted, he said, producers were trucking in thousands of gallons of water, stressing the area's roads and creating dangerous traffic conditions. He said the state engineer implemented the emergency policy to reduce vehicle traffic in the region.
He said the fracking process requires between seven and 18 acre-feet of water to bring a well to production.
According to Patch, the state instituted the Industrial Water Use in Lieu of Irrigation Policy, ILOP, at the start of the state's oil boom in late 2010. The policy allowed those with irrigation permits, typically farmers, to sell their water to oil producers who otherwise would have to truck it in, he said.
While there are not a lot of irrigation permit holders in northwest North Dakota, he said the policy allowing farmers to convert their permits so that they authorize water withdrawals for industrial uses for a year at a time enabled oil producers to decrease their reliance on trucked water. The industrial permits did not allow for additional use of water, but enabled the permit holders to sell their water to oil producers, he said.
Trucked Water Problem
Oil producers could have applied for industrial water use permits, he said, but that would not help the state address the truck traffic problem. Moreover, such permits typically take between one and three years to be issued, he said.
Patch said the state engineer decided to end the emergency policy for several reasons. Namely, the oil boom has significantly slowed because of depressed oil prices, he said. In addition, the state has increased the number of water pipelines and depots in the Bakken region, giving oil producers better access to state waters, he said.
The infrastructure changes, he said, are substantial enough that he doubts the ILOP would be resurrected if oil prices rebound. Improvements in the region should be able to handle increased oil production.
Even with significant fracking in the state, North Dakota is still a low water-use state, he said, consuming about 350,000 acre-feet each year, with fracking accounting for between 15,000 and 30,000 acre-feet of that.
Linda Kittilson, spokeswoman for the Dakota Resource Council, a state environmental group, said it welcomed the state engineer's decision.
North Dakota leaders, she said, have been shifting the burden of oil impacts to farmers, ranchers and landowners. Further, she said, she lives in Dunn County in the heart of the Bakken and she has noticed dropping creek levels.
If farmers can't water their crops and ranchers can't water their livestock, they must look for alternative sources, she said. Digging up springs and drilling water wells can be significant expenses for them, she said.
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Lawsuits Expected With Clean Power Plan Publication
Oct 23, 2015 | BNA Daily Environment Report
By Andrew Childers
Advocates of carbon dioxide limits on power plants rallied support for the regulations as the Environmental Protection Agency publishes the rules in the Federal Register Oct. 23, opening the window for legal challenges to the standards.
The EPA will publish its new source performance standards for carbon dioxide emissions from new and modified power plants (RIN 2060-AQ91), as well as similar standards for existing units (RIN 2060-AR33), known as the Clean Power Plan. The agency also will publish a proposed federal implementation plan (RIN 2060-AS47) for its Clean Power Plan that states can use as a model as they draft their own compliance strategies. The EPA will accept comment on that proposal until Jan. 21, 2016.
Publication means utilities and states opposed to the rules may bring lawsuits and Congress can seek to block the rules through the Congressional Review Act. The EPA, however, said it is more focused on helping states implement the carbon dioxide standards for power plants.
“We know these processes are out there and people will engage in them,” Janet McCabe, EPA acting assistant administrator for air and radiation, told reporters. “We are very focused on working with the states to move forward while people are engaging in those other activities.”
Lawsuits Coming
Several states, led by West Virginia, are expected to immediately announce lawsuits challenging the carbon dioxide regulations upon publication.
“It's one thing to sue. It's another thing to win,” David Doniger, director of the Natural Resources Defense Council's Climate and Clean Air Program, told reporters.
Environmental advocates downplayed the likelihood of the Clean Power Plan's opponents getting the U.S. Court of Appeals for the District of Columbia Circuit to stay implementation of or ultimately overturn the EPA carbon dioxide regulations.
“Our view of the Clean Power Plan rests on a solid legal foundation that is shared by many legal experts across the country,” Tomás Carbonell, senior attorney and director of regulatory policy at the Environmental Defense Fund, told reporters.
Opponents of the rule have already had challenges to the Clean Power Plan in its proposed version dismissed by D.C. Circuit as premature (In re Murray Energy Corp., 788 F.3d 330, 2015 BL 180996 (D.C. Cir. 2015) ).
Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power, predicted the rules will not survive judicial scrutiny now that they are final.
“The discrepancy between what EPA is trying to do and what the Clean Air Act actually allows is so wide that I am confident that these rules will not withstand judicial scrutiny,” Whitfield said at an Oct. 22 subcommittee hearing on the standards.
Opponents are expected to raise many of the same arguments in the upcoming lawsuits, particularly that the EPA is barred from regulating carbon dioxide emissions from power plants under Section 111(d) of the Clean Air Act because they are already subject to hazardous air pollutant limits under Section 112 (201 DEN B-1, 10/19/15).
Rule ‘Unlawful in Any Form.'
West Virginia Solicitor General Elbert Lin, who had argued on behalf of the state in prior challenges to the EPA Clean Power Plan, told the House subcommittee the rule is “unlawful in any form.”
“What EPA is doing is rewriting the statute, which it is, of course, not permitted to do,” Lin said.
The EPA and its environmental supporters remained confident of the rules' legality.
“We feel strongly given our authorities and legal precedents under the Clean Air Act that our application of [Section] 111(d) here conforms with those authorities and legal precedent,” McCabe said.
Doniger also predicted the carbon dioxide standards ultimately would be upheld, citing Supreme Court precedent.
“The Supreme Court has already found three times over the last eight years the EPA has the authority and power to curb carbon pollution,” he said.
EPA Focuses on Implementation
Despite the looming lawsuits, the EPA says its focus now is on helping states implement the Clean Power Plan, which sets a unique carbon dioxide emissions rate for the power sector in each state. State regulators are charged with drafting a plan to implement the standards, which are phased in between 2022 and 2030.
“We have every interest at EPA in helping the states succeed,” McCabe said.
States must submit their compliance plans to the EPA by Sept. 6, 2016, but they can seek a two-year extension if they make an initial submittal to the agency detailing its work toward implementing the rule. The EPA has said it has intentionally made it very easy for states to receive the extensions and even foresees every state receiving an additional two years to prepare their plans (204 DEN A-12, 10/22/15).
“Many states have processes in their states that will take longer than a year,” McCabe said. “There are many states that are expecting to submit an initial submittal and ask for an extension.”
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Numerous States Prepare Lawsuits Against Obama’s Climate Policy
Oct 22, 2015 | The New York Times
By Coral Davenport
As many as 25 states will join some of the nation’s most influential business groups in legal action to block President Obama’s climate change regulations when they are formally published Friday, trying to stop his signature environmental policy.
In August, the president announced in a White House ceremony that the Environmental Protection Agency rules had been completed, but they had not yet been published in the government’s Federal Register. Within hours of the rules’ official publication on Friday, a legal battle will begin, pitting the states against the federal government. It is widely expected to end up before the Supreme Court.
“I predict there will be a very long line of people at the federal courthouse tomorrow morning, eagerly waiting to file their suits on this case,” said Jeffrey R. Holmstead, a lawyer for the firm Bracewell & Giuliani who represents several companies that are expected to file such suits.
While the legal brawls could drag on for years, many states and companies, including those that are suing the administration, have also started drafting plans to comply with the rules. That strategy reflects the uncertainty of the ultimate legal outcome — and also means that many states could be well on the way to implementing Mr. Obama’s climate plan by the time the case reaches the Supreme Court.
The E.P.A.’s climate change rules are at the heart of Mr. Obama’s ambitious agenda to counter global warming by cutting emissions of planet-warming carbon pollution. If they withstand the legal challenges, the rules could shutter hundreds of polluting, coal-fired power plants and freeze construction of such plants in the future, while leading to a transformation of the nation’s power sector from reliance on fossil fuels to wind, solar and nuclear power.
Mr. Obama has also used the rules as leverage in his negotiations to reach a global climate change accord in Paris in December. He hopes to broker a deal committing every country to enacting domestic climate change policies.
The official publication of the rules will also spur legislative pushback on Capitol Hill, where Senator Mitch McConnell of Kentucky, the majority leader, will introduce two resolutions to block them. The legislation will be introduced under the rarely used Congressional Review Act, which allows Congress to block an executive branch rule within 60 legislative days of its publication.
While the resolutions are likely to pass the Republican-controlled Congress, Mr. Obama would be expected to veto them. But by introducing the resolutions, Mr. McConnell hopes to convey to the world that Congress does not support the Obama regulations — a message that could be amplified if the Senate votes on the resolutions before or during the Paris summit meeting.
The Obama administration has sought to ensure that the rules will not come under question before that meeting. By delaying the official publication of the rules until nearly three months after they were announced, for example, the administration appeared to be trying to ensure that no major legal decisions to weaken them would be issued before the Paris meeting.
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A broad and powerful coalition of governors, attorneys general, coal companies, electric utilities and business groups such as the United States Chamber of Commerce will file suits contending that the rules, put forth under the 1970 Clean Air Act, represent an illegal interpretation of the law. They will also petition to delay implementation of the rule until the case is argued in federal court.
“The president’s illegal rule will have devastating impacts on West Virginia families, and families across the country,” Attorney General Patrick Morrisey of West Virginia said in a statement. Mr. Morrisey, whose home state’s economy is heavily dependent on coal mining, is expected to play a lead role in the multistate lawsuit.
States and companies may be hedging their bets.
In Georgia, Gov. Nathan Deal’s administration plans to sue the E.P.A. At the same time, the governor, a Republican, has also instructed his director of environmental protection, Judson H. Turner, to begin crafting a plan to comply with the rules.
“The governor of Georgia said to me, ‘Whatever action may be taken on the legal front, we’ll need to develop a plan that works for Georgia,’ ” Mr. Turner said. If Mr. Obama’s plan survives the legal challenge, Mr. Turner added, “we’ll have the confidence that we’ll put a plan for Georgia together that’s better than a federal plan.”
Similar dynamics are playing out in many other states that are suing over the rules, said Vicki Arroyo, the executive director of the Georgetown University Climate Center, which focuses on state-level climate policies.
“It’s really rare to find a state that just says, ‘Hell no,’ ” she said.
The rules assign each state a target for reducing its carbon pollution from power plants, but allows states to create their own custom plans for doing so. That rule is designed to encourage states to make major changes in their electric power sectors — for example, to shut down coal-fired power plants and replace them with wind and solar power. It is also designed to encourage states to enact so-called cap-and-trade systems, under which they would place a cap on carbon emissions and create a market for buying and selling pollution credits.
States have to submit an initial version of their plans by 2016 and final versions by 2018. States that refuse to submit a plan will be forced to comply with one developed by the federal government.
Republican governors have denounced the rule, particularly its emphasis on pushing cap-and-trade systems; in his first term, Mr. Obama tried but failed to send a cap-and-trade bill through Congress. Since then, the term has become politically toxic: Republicans have attacked the idea as “cap-and-tax.” The governors of five states — Texas, Indiana, Wisconsin, Louisiana and Oklahoma — have threatened to refuse to submit a plan of any kind.
But economists and many industry leaders have found that in many cases, the easiest and cheapest way for states to comply would be by adopting cap-and-trade systems.
American Electric Power, an electric utility that operates in 11 states, is among the companies that intends to sue the administration over the rule. At the same time, the company’s vice president, John McManus, said: “We think it makes sense for states to at least start developing a plan. The alternative of having a federal plan has risks.” And he said that his company could support a cap-and-trade plan. “The initial read is that a market-based approach is more workable,” he said.
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Hearing Mulls Legality Of Rule On Eve Of Expected Lawsuits
Oct 23, 2015 | E&E Daily News
By Jean Chemnick
A key subcommittee of the House Energy and Commerce Committee yesterday offered what amounts to a preview of coming attacks now that U.S. EPA's Clean Power Plan has been published in the Federal Register and can be challenged in court.
The Energy and Power Subcommittee has held many hearings on the existing power plant rule in the past, including on the strength of its legal foundation. But last night's gathering was particularly timely because today is the first time state and industry opponents of the rule can file notice of intent to sue without the likelihood that their challenges will be thrown out as premature.
Most of the legal arguments that are likely to figure in coming litigation are already well known. But they center on the question of whether EPA was right to use Section 111(d) of the Clean Air Act to craft a sweeping power-sector rule that takes advantage of carbon reduction opportunities throughout the electricity distribution system to encourage a scaling back of high-emitting coal-fired capacity and an expansion of renewables, or whether that interpretation stretches the 25-year-old legislation to the breaking point.
Subcommittee Chairman Ed Whitfield (R-Ky.) said he thought the rule went beyond the scope of what Congress envisioned when it passed the Clean Air Act amendments of 1990.
"If Congress wanted to largely write fossil fuels out of America's energy future, it would have said so," he said.
But the full committee's ranking member, Rep. Frank Pallone (D-N.J.), said the challenges follow much along the same lines as previous challenges alleging that EPA lacked the authority to regulate greenhouse gases under the statute or to regulate stationary sources.
"Accept the Clean Power Plan is on solid legal ground and just move on," he advised his Republican colleagues and the industry advocates they had invited to testify.
The majority witnesses on the panel consisted of likely litigants including two industry lawyers and Elbert Lin, solicitor general of West Virginia, whose state will likely take the lead in a multi-state challenge of the rule.
They raised familiar arguments that the 1990 amendments preclude a source category from being regulated under both Sections 112 and 111(d) of the Clean Air Act at once, even for different pollutants. Lin said that EPA appeared to favor that interpretation of the statutory language itself, but reversed course to support the Clean Power Plan. His written testimony pointed to a 111(d) rule EPA promulgated for municipal solid waste landfills in 2005.
David Doniger of the Natural Resources Defense Council pointed to a brief by Richard Revesz of New York University School of Law -- another member of yesterday's panel -- that argued that EPA has always held that regulating a source category under Section 112 did not preclude regulating for a different pollutant under Section 111(d).
Allison Wood, who represents industry clients at Hunton & Williams LLP, argued that the rule's systemwide architecture was not supported by statute. She said 111(d) standards apply to the source -- in this case, the electric generating unit -- not to the product, which in this case would be electricity.
She proposed an analogous vehicle emissions rule where EPA not only demands that cars control emissions from their carburetors -- as the agency currently does under another provision of the law -- but dictates what kind of car a consumer could buy or how frequently he or she can commute to work as a means of cutting emissions.
And Raymond Gifford, a partner at Wilkinson Barker Knauer LLP, said that EPA had used wildly unrealistic assumptions in crafting its standard, including that renewable energy could grow consistently at its highest historic rate, even though that growth might be tied to other policy variables like the pending expiration of the production tax credit for renewable energy.
Facing off against Lin and the industry lawyers were two minority-invited academics arguing that the rule does not violate the law.
Revesz said that contrary to what Wood said, "EPA can decide that a standard of performance is to create the product in a cleaner way."
At Pallone's prodding, he also questioned the narrative of many Republicans that EPA is barred from allowing a trading compliance option because the law does not explicitly call for such a mechanism. EPA does not require trading, but it leans heavily on it to lower the projected costs of the rule and to provide the flexibility to keep needed power plants online.
And Emily Hammond of the George Washington University School of Law said the courts would be likely to defer to EPA's interpretation of the Section 111/112 matter, or even to go further. The courts could make it clear in their decision on the Clean Power Plan that, going forward, EPA must regulate the same source category for different pollutants under both sections of the law and could provide an endorsement of EPA's systemwide regulatory approach that would influence future rulemakings.
Besides unleashing the dogs of litigation, today's Federal Register publication also allows congressional Republicans to launch bids to veto the rule under the Congressional Review Act. Senate Majority Mitch McConnell's office said yesterday that the Kentucky Republican would introduce resolutions for both the new and existing power plant rule next week (E&ENews PM, Oct. 22).
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Critics Seek Quick Action To Block Utility GHG Rules But Face High Bars
Oct 22, 2015 | InsideEPA
By Lee Logan
Beginning almost as soon as they are published in the Federal Register Oct. 23, critics of EPA's greenhouse gas rules for the power sector are planning a series of efforts to quickly block them, including lawsuits to stay the rules and congressional disapproval resolutions.
But both paths face high hurdles and the critics will likely have to wait until the Supreme Court decides on the rules' merits sometime in 2018 or later -- creating a risk that many states and utilities may already be implementing the rules' requirements.
“We could have essentially what amounts to a Pyrrhic victory,” West Virginia Solicitor General Elbert Lin -- who is leading a coalition of states that is likely to be among the first to challenge the rules -- told a House Energy and Commerce Committee panel hearing Oct. 22.
And Raymond Gifford, an attorney with the firm Wilkinson Barker Knauer, told the hearing that utilities are already filing long-term plans that “incorporate the assumptions of the rule. That's what a prudent utility has to do given their planning horizons.” He warned of a scenario in which the rule is ultimately struck down in 2018 or 2019, but “a good chunk of the nation's coal fleet is already scheduled to be retired under state planning processes.”
EPA's landmark suite of power plant GHG rules will be formally published in the Register Oct. 23, firing the starting gun for state and industry critics to file suit over the regulations and for Republican lawmakers to act on their long-promised resolutions to block the rules.
The rule package includes a final rule governing GHG emissions from existing power plants, a companion rule covering new and modified plants, and a proposed federal implementation plan (FIP).
Although critics have 60 days to file suit, many say they will quickly submit petitions to review the rule to the U.S. Court of Appeals for the District of Columbia Circuit. While critics are underscoring the rules' significant legal vulnerabilities, the agency and its supporters are expressing confidence that the rules ultimately will be upheld.
“It's one thing to sue, but it's another thing to win,” David Doniger, of the Natural Resources Defense Council (NRDC) said during an Oct. 22 press call. “Almost every standard gets challenged. EPA usually wins.”
In addition to the legal fight, the forthcoming publication is also important for groups that would like to further shape EPA's implementation of the existing source performance standards (ESPS).
The Register is also slated to publish EPA's proposed FIP for the ESPS, kicking off a 90-day comment period, ending Jan. 21, on that rulemaking.
The FIP is critical because it will be imposed on states that do not submit a sufficient state compliance plan, and it also signals to states what plan components EPA would be likely to approve.
EPA's proposed FIP includes rate- and mass-based trading programs, though the agency intends to finalize only one form of trading in the FIP. The proposal also seeks comment on a range of issues, including EPA's decision not to include a reliability “safety valve” in the federal plan and its tools for addressing emission “leakage.”
The FIP also seeks comment on EPA's proposed incentive program for states that make “early” investments in renewables and energy efficiency in 2020 and 2021, allowing stakeholders to shape that effort.
'Floodgates For Litigation'
Most of the immediate reaction, however, focused on the soon-to-be-filed suits over the final GHG rules, with many critics suggesting they may want to take action to undermine the administration's commitments as officials head into international climate talks in Paris next month.
EPA is “finally opening the floodgates for litigation against its deeply flawed, illegal carbon rule,” said a statement from the American Coalition for Clean Coal Electricity.
The coal group also urged international officials preparing for United Nations climate talks in Paris to “take note of the widespread opposition” from states officials opposed to the rules who are “working overtime to protect their constituents, state economies and the nation as a whole from the President's reckless pursuit of his climate legacy.”
But because consideration of such stay requests will likely take several weeks, the court is unlikely to block the rule before the Nov. 30-Dec. 11 negotiations in Paris.
Industry sources have acknowledged that it is often difficult to win a judicial stay, and environmentalists are confident the court will reject such requests -- regardless of when the court were to rule.
To win a stay, one key question is whether petitioners can show they will suffer “irreparable harm” while the litigation plays out. But Joanne Spalding of the Sierra Club told the Oct. 22 press call that doing so will be difficult because the ESPS gives utilities seven years to begin compliance and states three years to develop final compliance plans.
The court has a “strict test” on irreparable harm, which “petitioners cannot meet,” Spalding said, noting that the rule's September 2016 deadline for states to submit an initial state plan also does not satisfy that test. “States are unlikely to persuade the court that writing an initial state plan . . . constitutes irreparable harm,” Spalding said.
“Especially when they have the option to decline to write a plan and leave it to EPA to write a plan for that state,” she added.
Congressional Republicans are also hoping to pass disapproval resolutions to block the rules under the Congressional Review Act (CRA) signal to the U.N. talks that there is significant domestic opposition to Obama's climate policies and the administration's non-binding commitments may not survive in a new administration.
For example, Rep. Ed Whitfield (R-KY) pledged recently to move forward with CRA resolutions “as soon as they publish” the rules in the Register.
While House lawmakers have already introduced their disapproval resolutions, Senate Majority Leader Mitch McConnell (R-KY) is expected to personally introduce the Senate versions, together with Sen. Shelley Moore Capito (R-WV), according to a Greenwire report.
While the resolutions are privileged and may make it out of Congress, they will almost certainly be vetoed by President Obama.
And acting EPA air chief Janet McCabe told a separate Oct. 22 press call that the lawsuits and congressional moves against the rule would hamper neither implementation nor the Paris talks. “We are very focused on working with the states to move forward while people are engaging in those other activities,” McCabe said. “We're confident we'll continue to make progress and continue to show leadership on this issue here at home and internationally.”
'Beyond The Fence'
While congressional efforts to block the rules in the short term may be stymied, lawmakers and witnesses used the Oct. 22 House hearing to highlight a series of legal arguments that critics have long indicated they will make when courts consider the issue.
Key among them is the question of whether EPA can consider “beyond the fence” actions such as renewables or coal-to-gas switching when setting GHG standards for existing plants, arguing that the targets essentially would require some coal plants to operate less to comply.
“Never before in the history of the Clean Air Act has a standard of performance been based on, 'don’t run,'” said Allison Wood, an attorney with the firm Hunton & Williams, during a recent conference.
EPA has said its approach is in line with past rules because it aims to produce the same amount of a product -- electricity -- “with a process that has fewer emissions.”
But West Virginia's Lin charged that EPA's argument is flawed. In the ESPS, “EPA is not talking about changing the method of producing a product,” he said, adding that the rule's targets are based on “shifting generation from one power plant to some other power plant.”
Previous section 111 rules “talk about ways to improve operations at one particular facility. That's not what they've done here.”
But Richard Revesz, director of New York University's Institute for Policy Integrity, testified that past section 111 rules set the precedent for considering “beyond the fence” measures. He highlighted a rule for solid waste combustors that required owners to implement recycling programs “designed to reduce the use of the combustors themselves.”
“It's important to underscore that the product at issue in the Clean Power Plan is electricity, not electricity generated from coal,” he said.
But Wood testified at the House hearing that EPA's rule does not regulate electricity as a product, and instead regulates fossil fuel-fired power plants. EPA's rule governs “whatever the thing is that is actually creating the emissions,” she said. “If you're talking about a petroleum refinery, it would be the refinery. It wouldn't be the gasoline.”
Similarly, Sidley Austin attorney Roger Martella, a Bush-era EPA general counsel, told an Oct. 22 American Law Institute-Continuing Legal Education conference that the ESPS would “forever redefine the scope of EPA's authority" by holding owner-operators of sources responsible for actions far beyond the source.
He added that section 111(d) applies only to emission sources, and not owner-operators.
But Lorie Schmidt, associate general council for EPA's air office, told the conference that if EPA had focused only on plant-level measures, “we get very little in terms of reduction,” but that the statute requires the agency to achieve significant cuts through a “best system of emission reduction.”
She also argued that the ESPS is “certainly not a broad expansion of EPA authority,” but is simply regulating a long-regulated sector for a new pollutant. "If we are not going to do it this way, how are we going to do it?"
During the environmentalists' press call, NRDC's Doniger rejected industry's framing of the “beyond the fence” issue. “The rule does not limit how many hours any plant can run,” he said, adding that it limits a plant's emission rate or the amount of tons it can emit.
The ESPS “provides ways the plant can run as many hours or as much as the owner-operator feels it's economic to run the plant, provided they get the reductions, either on site or through these credit mechanisms.”
He also responded to concerns that the final ESPS included numerous new provisions that stakeholders were unable to comment on -- and thus could not raise in arguments during litigation.
Doniger said many of the changes were made in response to industry and state concerns, calling the dynamic common to any agency rulemaking. “The test is whether the changes are a logical outgrowth, a logical result of the back and forth that happened in the comment period,” he said. He noted that the air act allows groups to file petitions for reconsideration if they claim “something has blindsided them.” He added that a court will often “hold up litigation” to allow EPA to consider those petitions and potentially include those issues in a suit. “We anticipate if there are reconsideration petitions filed . . . that the normal procedure would be followed,” he said.
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EPA Sends Proposed Utility MACT Cost Assessment For OMB Review
Oct 22, 2015 | InsideEPA
By Anthony Lacey
EPA has sent for White House pre-publication review its proposed rule assessing the costs of regulating power plants with maximum achievable control technology (MACT) air toxics standards, responding quickly to the Supreme Court ruling that faulted the agency for not weighing costs when it first decided to craft the utility MACT.
The agency sent the proposed rule to the White House Office of Management & Budget (OMB) for mandatory review Oct. 21, a process that typically takes 90 days but can take more or less time depending on the rule. Once OMB completes its review, EPA can publish the cost finding in the Federal Register. The finding is expected to project lower compliance costs to industry than previous cost assessments for the MACT because many regulated facilities have already complied with its requirements or shut down.
EPA in recent court filings has said that it is aiming to have a final version of the cost review issued by April 15, and that critics of the utility MACT will have the opportunity to challenge that finding in court.
The cost review is the agency's reply to the high court's 5-4 ruling from earlier this year in Michigan v. EPA that said the agency erred by not considering costs in its determination that the utility MACT was “appropriate and necessary.”
The agency argued that the Clean Air Act is silent on when costs need to be considered in development of a MACT, saying that it did weigh the costs to industry when setting the actual emissions limits in the rule. But critics said, and the justices agreed, that the agency should have weighed costs as a factor in the “appropriate” finding.
The Supreme Court however did not assess the merits of the actual rule and its emissions standards, instead sending litigation over the MACT back to the U.S. Court of Appeals for the District of Columbia Circuit.
Industry groups and states opposed to the rule, which is also known as the mercury and air toxics standards (MATS), are urging the D.C. Circuit to vacate the regulation entirely. They say the high court's ruling found the initial basis for launching the rulemaking unlawful, and therefore the MACT is no longer valid.
The Department of Justice (DOJ) countered in an Oct. 21 brief that the court only faulted EPA for not considering costs in the “appropriate” finding and that the pending proposed rule will resolve this issue.
In the same filing, DOJ hinted that EPA's review will find lower costs than those it estimated when it did a cost review of the emissions standards in the original utility MACT. That prior cost estimate is already several years old and “likely overestimates compliance costs,” DOJ said.
The agency's critics argue that vacatur is appropriate because the utility MACT will continue to impose costs such as the $158 million recordkeeping requirements if the court leaves it in place. They also faulted the rule as only providing $4 million to $6 million in health benefits to further undermine the case for retaining the rule.
But DOJ counters that the $4 million to $6 million figure only represents quantifiable benefits directly related to the rule's regulation of mercury emissions, and does not account for co-benefits from reducing other hazardous air pollutants, as well as related benefits of reducing criteria pollutants such as fine particulate matter. The total quantifiable benefits of the utility MACT are estimated to be three to nine times the total cost, DOJ says. OMB's website has few details available on the pending proposed rule titled “Considering Cost in Appropriate and Necessary Finding for the Mercury and Air Toxics Standards (MATS),” saying only that the rule is not under a legal deadline nor will it qualify as “economically significant.” The website does not list a projected date for the agency to issue the proposal.
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OMB Reviewing Proposed Cost Analysis of Mercury Rule
Oct 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A proposal intended to address the U.S. Supreme Court's finding that the Environmental Protection Agency was required to consider cost when it decided it was “appropriate and necessary” to regulate mercury emissions from power plants is now under review by the White House Office of Management and Budget.
An EPA attorney said Oct. 22 that there is “little doubt” that the agency chose correctly when it made its initial determination that it was appropriate and necessary to regulate those emissions under the Clean Air Act, a decision that ultimately led to promulgation of the mercury and air toxics standards (MATS). Those standards, which set limits on hazardous air pollution from power plants, are estimated by the EPA to cost the power industry $9.6 billion annually.
The Supreme Court, in a 5-4 opinion authored by Justice Antonin Scalia, ruled in June that the EPA erred when it declined to consider the cost of compliance in its appropriate and necessary determination. The court remanded the litigation to the U.S. Court of Appeals for the District of Columbia Circuit, which will decide whether the MATS rule will remain in place while the EPA works to address the Supreme Court decision (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 125 DEN A-1, 6/30/15).
Several of the petitioners who sued the EPA have asked the D.C. Circuit to vacate the MATS rule (RIN 2060–AP52, RIN 2060-AR31), a request that the EPA opposes (187 DEN A-11, 9/28/15).
Lorie Schmidt, associate general counsel at the EPA, said part of the reason the EPA expects to be able to move “very expeditiously” on remand is due to the cost-benefit analysis the agency prepared alongside the final MATS rule.
“We already have a very extensive record and analysis of what the cost of MATS will be when it's implemented,” Schmidt said during remarks at an American Law Institute event. “We think the best approach here would be to keep the rule in place.”
The EPA has told the D.C. Circuit that there is a “serious possibility” that the appropriate and necessary finding will be reaffirmed. The agency also had pledged to complete the required cost consideration “as close to April 15, 2016,” as possible, the date by which power plants that received a one-year compliance extension under MATS.
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