Preview Newsletter
ACC AM OCT 26
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E-manifest: An Update on Implementation
Oct 27, 2015 | Energy & Commerce Committee
Location: 2322 Rayburn House Office Building/ 10:15 AM -
Nomination Hearing - Jessica Rosenworcel to be FCC Commissioner
Oct 28, 2015 | U.S. Senate Committee on Commerce, Science, & Transportation
Location: Senate Russell Office Building, Room 253/ 10:00 AM -
(ACC Mentioned) Karl Rove-Connected Group Runs Ads Boosting U.S. Sen. Roy Blunt
Oct 26, 2015 | St. Louis Post - Dispatch
By Chuck Raasch
A group aligned with Republican operative Karl Rove has launched almost $800,000 in radio, television and online advertising praising incumbent Sen. Roy Blunt — fueling claims by Democrats that his re-election is under threat. The pro-Blunt media blitz by the secretly funded Washington nonprofit “One Nation," follows... -
(ACC Mentioned) 2015 Paper & Plastics Recycling Conference: Understanding The Drivers Of Mixed-Waste Processing
Oct 23, 2015 | Recycling Today
By Kristin Smith
If one thing is certain about the recycling industry, it is constantly changing. In 2003, debate centered mostly about contamination concerns with single-stream recycling, and in 2015, mixed-waste processing is at the forefront of the discussion around quality. But as speakers at the 2015 Paper and Plastics Recycling... -
(ACC Mentioned) Toxic Influence
Oct 23, 2015 | Safer Chemicals Healthy Families
With the Capitol Hill rumor mill divided on when a bill to reform the Toxic Substances Control Act will come to the Senate floor, we’d like to call your attention to a new Huffington Post article from our coalition partners at the Union of Concerned Scientists. This shows how the chemical industry — with the American Chemistry Council leading... -
‘Strong Basis’ for Limiting Some Solvents' Uses: SAB
Oct 26, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The scientific data the Environmental Protection Agency has gathered and analyses it has conducted provide a solid foundation for the agency to consider whether it should propose regulations limiting uses of three solvents, the Science Advisory Board said in an Oct. 22 letter. -
Makeup Spooks U.S. Lawmaker
Oct 23, 2015 | Chemical & Engineering News
By Britt E. Erickson
Lipstick, eye glitter, face paint, and other costume makeup—often made in China—may contain hazardous chemicals such as lead, warns Sen. Charles E. Schumer (D-N.Y.), referring to a study by a health activist group. The senator is urging the Food & Drug Administration to set a limit for lead in cosmetics and beef up enforcement of packaging... -
EPA IG Alleges Poor Morale at Chem Safety Board
Oct 26, 2015 | BNA Daily Environment Report
By Stephen Lee
The Chemical Safety and Hazard Investigation Board must improve employee morale and do more investigations, the Environmental Protection Agency inspector general said following an investigation. The Oct. 22 report draws on a Republican House committee hearing from 2014 in alleging a toxic work environment, an unproductive work... -
Chemical Safety Board Urged to Improve Morale
Oct 23, 2015 | Government Executive
By Charles S. Clark
The Chemical Safety Board, with a new chairman and four of its five-member complement in place, should focus on improving employee morale, a watchdog recommended on Thursday. Environmental Protection Agency Inspector General Arthur Elkin in a report harkened back to lawmakers’ descriptions of CSB’s “toxic work environment,”... -
(ACC Mentioned) The Oncoming Train Crash
Oct 25, 2015 | The Wall Street Journal - Opinion
Congress spends much of its time sorting through crises created by past legislation, and this week will be no exception. Barreling down the tracks is a legal deadline for railroads that threatens to slam the economy if legislators don’t revisit one of their unwise mandates. -
What To Look For As Congress Sets A Six-Year Agenda For Dangerous Goods Transport
Oct 23, 2015 | BNA Energy & Environment Blog
By Rachel Leven
The House and Senate are largely in sync when it comes to determining a path through fiscal year 2021 for hazardous materials transportation programs. A House committee yesterday approved a highway reauthorization bill that would set policy and funding levels for the programs that ensure hazardous materials... -
Deadline For Train Safety Technology Undercut By Industry Lobbying
Oct 25, 2015 | The Washington Post
By Ashley Halsey III and Michael Laris
Until a train barreled off the tracks at 9:26 p.m. on May 12, it had been business as usual on Capitol Hill. Among the bills quietly making their way toward a final vote was one that would postpone by several years a multibillion- dollar safety-enhancement deadline facing the railroad industry. -
Few Railroads On Track To Meet End-Of-Year Safety Deadline
Oct 23, 2015 | NPR
By Jeff Brady
Railroads warn they may have to shut down unless Congress extends an end-of-the-year deadline to install new safety equipment called Positive Train Control. PTC is a complex system that monitors a train's location and speed, then automatically slows down or stops a locomotive if the engineer doesn't respond to a danger warning. -
(ACC Mentioned) Court Challenges Pile Up
Oct 23, 2015 | E&E News PM
By Robin Bravender
Legal challenges to a landmark Obama administration climate rule continue to flood in now that the rule is officially ripe for lawsuits. By this afternoon, U.S. EPA's opponents had lodged more than a dozen petitions asking the U.S. Court of Appeals for the District of Columbia Circuit to weigh the legality of the rule that aims... -
Arctic Offshore Leasing Put On Ice
Oct 23, 2015 | The Hill - Contributors
By Jayni Hein and Michael A. Livermore
The U.S. Department of the Interior announced last week that it is canceling future lease sales in federal Arctic waters off Alaska's northern coast, a decision that places future Arctic offshore drilling on ice. This decision signals a clear shift in Arctic offshore leasing policy and marks a victory for environmentalists who have long highlighted the... -
Oklahoma Earthquakes Are a National Security Threat
Oct 23, 2015 | Bloomberg Business
By Matthew Philips
In the months after Sept. 11, 2001, as U.S. security officials assessed the top targets for potential terrorist attacks, the small town of Cushing, Okla., received special attention. Even though it is home to fewer than 10,000 people, Cushing is the largest commercial oil storage hub in North America, second only in size... -
Majority of States Challenge EPA's Clean Power Plan
Oct 26, 2015 | BNA Daily Environment Report
By Andrew Childers and Anthony Adragna
A majority of states and senior congressional leaders took immediate steps to block the Environmental Protection Agency's suite of carbon dioxide standards for power plants as soon as they were published in the Federal Register. “The EPA's rule is flatly illegal and one of the most aggressive executive branch power grabs we've seen... -
EPA's Goffman, McCabe Hit The Road To Tout Clean Power Plan
Oct 26, 2015 | E&E Daily News
By Emily Holden and Rod Kuckro
Senior U.S. EPA officials will leave the nation's capital this week to make the case for the agency's rule to curb carbon dioxide emissions from power plants. On Wednesday, Joe Goffman, senior counsel for EPA's Office of Air and Radiation, will be in San Diego at a conference sponsored by the Western Interstate Energy Board. -
Obama Turns To Climate Deal
Oct 25, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration is ramping up its efforts to get the American public behind its goal for a strong global climate change deal in Paris in December. With weeks to go until negotiators meet to hash out a final international agreement, President Obama worked in recent days to make sure the country knows the importance of United States... -
Wave Of Litigation Hits Obama Climate Rule
Oct 24, 2015 | The Hill - E2 Wire
By Devin Henry
The publication of the EPA's carbon rule for power plants has prompted a flurry of legal and legislative action, ushering in a lengthy battle over the future of the Obama administration's key climate change initiative. More than two dozen states and a slew of interest groups and companies sued over the Clean Power Plan... -
EPA Testing New Way to Measure Air Pollution Emissions
Oct 26, 2015 | BNA Daily Environment Report
By Renee Schoof
The Environmental Protection Agency is testing a computer program that works with infrared pollution detection cameras to measure pollution emissions rates, Phillip Brooks, director of the agency's Air Enforcement Division of the Office of Enforcement and Compliance Assurance, said Oct. 23 at an American Law Institute program. -
House Republicans Seek to Block Ozone Rule
Oct 26, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
House Republicans have introduced a joint resolution of disapproval over the Environmental Protection Agency's recently revised national ozone standards, the first step in a Congressional Review Act challenge to the rule. The resolution, introduced Oct. 22 by Rep. Jackie Walorski (R-Ind.), would express congressional disapproval of... -
Haze Deadline Change Would Allow Coordinated Planning
Oct 26, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Planned revisions to the Environmental Protection Agency's regional haze regulations would allow states to coordinate their planning with compliance efforts under other air rules, an EPA attorney said. The EPA is working on a proposed rule (RIN 2060-AS55) that would extend the deadline for states to submit a revised regional haze plan...
Congressional Hearings
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
Full Text of Stories Below
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E-manifest: An Update on Implementation
Oct 27, 2015 | Energy & Commerce Committee
Location: 2322 Rayburn House Office Building/ 10:15 AM
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Nomination Hearing - Jessica Rosenworcel to be FCC Commissioner
Oct 28, 2015 | U.S. Senate Committee on Commerce, Science, & Transportation
Location: Senate Russell Office Building, Room 253/ 10:00 AM
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(ACC Mentioned) Karl Rove-Connected Group Runs Ads Boosting U.S. Sen. Roy Blunt
Oct 26, 2015 | St. Louis Post - Dispatch
By Chuck Raasch
A group aligned with Republican operative Karl Rove has launched almost $800,000 in radio, television and online advertising praising incumbent Sen. Roy Blunt — fueling claims by Democrats that his re-election is under threat.
The pro-Blunt media blitz by the secretly funded Washington nonprofit “One Nation,” follows one in September by the American Chemistry Council.
Abe Rakov, a spokesman for Blunt’s challenger, Jason Kander, said the latest ad blitz will push to over $1 million the amount spent by pro-Republican outsiders boosting Blunt.
“That’s clearly a sign that folks in Washington are now very concerned that Jason Kander has a great chance to defeat Sen. Blunt in 2016,” Rakov said.
But nonpartisan Senate campaign analyst Jennifer Duffy said she believes the ads are more indicative of Republicans trying to positively define incumbent senators than an acknowledgment that the senators are in trouble.
One Nation was formed in May in the same constellation of independent groups that includes Rove’s American Crossroads, which has poured tens of millions of dollars into state and national races on behalf of Republicans since 2010.
Members of the network also have ties to Senate Majority Leader Mitch McConnnell, R-Ky., whose control of the Senate is dependent on Republicans holding their majority, currently at 54 of 100 seats, next year.
The incumbent Blunt, 65, who has assembled campaign staff but has not officially announced he is running again, was first elected to the Senate in 2010 with a nearly 14-point victory over Democrat Robin Carnahan. He served in the U.S. House for 14 years before that.
His race with Kander, Missouri’s secretary of state, is appearing on national political operatives’ watch lists for 2016.
Duffy, of the nonpartisan Cook Political Report, rates Missouri as “likely Republican” in 2016. But Democrats, in Washington and in Missouri, have touted Kander’s own fundraising as evidence of his strength. They say Blunt’s nearly 20 years in Washington will be heavy baggage in an era of voter disdain for Congress.
Still, Blunt’s campaign outraised Kander, $1.2 million to $825,000 in the three months that ended in September, and Blunt entered October with a $4.4 million to $1.6 million advantage of money in the bank.
The One Nation advertising could be a harbinger of widespread involvement by groups not affiliated with the Missouri candidates’ campaigns, and illustrative of the spending now possible in the wake of the Supreme Court’s 2010 Citizens United decision on campaign finance.
One Nation is running similar ad blitzes praising incumbent Republican Sen. Kelly Ayotte, in New Hampshire. She faces a tough re-election challenge from Democratic Gov. Maggie Hassan. The group is also on the air in Nevada in praise of Rep. Joe Heck, who is seeking the seat of retiring Senate Democratic Leader Harry Reid.
The ad blitz in Missouri highlights Blunt’s recently introduced, bipartisan bill with Sen. Kirsten Gillibrand, D-N.Y., intended to make it easier for military families to move from one posting to another with less disruption. The TV ad now airing in Missouri shows Blunt shaking hands with veterans and speaking at a recent Capital news conference touting the bill.
Ian Prior, a spokesman for One Nation, hinted that more ads may be coming from the group.
“Since the Senate has been under new management, it has championed the cause of military families and veterans, and Sen. Blunt has led the charge on that effort with his support of the Military Family Stability Act,” he said. “We want to highlight that work and intend to do more on the issue in the future.
The group is organized as a nonprofit “social welfare” group under the federal tax code. Unlike political action and candidate committees, it is not legally required to disclose its donors. Prior refused to say who was paying for the Missouri ads.
He said the group would spend about $785,000 on a 17-day “advocacy push” in Missouri, including a 10-day TV ad blitz featuring Blunt that the group has dubbed “Heroes.”
Duffy, the Cook Political Report Senate analyst, said the ads are proof that national groups learned in the last election their greatest impact can be positively defining candidates before opponents can.
“I wouldn’t read a lot into the ad — or at least not as much as the Democrats are,” Duffy said. “One Nation has gone up in several states with ads to help define the incumbent in a positive way early in the game.”
She said that “in the case of Missouri, the governor’s race, particularly the GOP primary, is going to dominate the discussion for a while, so if Republicans can help Blunt early, it probably pays some dividends down the road. I think this is one of the lessons learned in 2014.”
Missouri Democrats also disputed the ad’s claims, citing votes where Blunt opposed measures to help veterans, while also opposing legislation that would force groups like One Nation to disclose their donors.
Burson Snyder, Blunt’s campaign press secretary, said Blunt has “a long record of very hard work on behalf of our nation’s heroes.”
She cited Blunt’s recent sponsorship of successful legislation on veteran employment and suicide prevention, and the senator’s work to get a permanent director at the VA St. Louis Health Care System, which has had a succession of temporary administrators.
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Oct 23, 2015 | Recycling Today
By Kristin Smith
If one thing is certain about the recycling industry, it is constantly changing. In 2003, debate centered mostly about contamination concerns with single-stream recycling, and in 2015, mixed-waste processing is at the forefront of the discussion around quality. But as speakers at the 2015 Paper and Plastics Recycling Conference explained, as state and local governments continue to set high recycling and waste diversion goals, mixed-waste processing is an effective method of achieving those goals.
Bob Brickner, executive vice president of Fairfax, Virginia-based solid waste consulting firm, Gershman, Brickner & Bratton Inc. (GBB), emphasized the idea that nothing is eternal in the solid waste industry and that even with the amount of recycling that is taking place in 2015, in the nearly 600 single-stream material recovery facilities (MRFs) that exist in the U.S., the recovery rate has remained steady at 30 percent, with recycling only making up 22 percent of that figure, based on a recent Columbia University and BioCycle study figures.
Meanwhile, states continue to set recycling goals well above 22 percent. “Zero waste is a great concept,” Brickner said, “but it costs money. Recycling is not free.”
He noted a recent study GBB did for the city of Fayetteville, North Carolina. The report reviewed the real cost for curbside single stream recycling from the curb setout, collection, processing at the single stream MRF which put the cost of recycling at $3 per household or $250 per ton. By comparison, landfilling only cost $45 per ton.
Another study prepared by GBB titled “The Evolution of Mixed Waste Processing Facilities 1970 – Today” was commissioned by the American Chemistry Council sought to determine how waste composition affects the economics of mixed-waste processing facilities (MWPFs) and its impact on recycling and recovery.
The study looked at single-stream MRF only; single-stream MRF with MWPF in tandem; and MWPF only in the city of Ft. Worth, Texas’ residential recycling program, which currently uses a pay as you through program. The study determined that single-stream recycling alone garnered a 19 percent recovery rate, while the MWPF alone had a slightly better recovery of 25 percent. The best recovery rate occurred when the two processes were used in tandem achieving a 34 percent recovery rate. When organics recovery was figured into the equation, the recovery rate for the combined processes was 55 percent.
The report concluded: the average MSW stream is half recyclables;there is economic value in extracting additional recyclables from automated MWPFs;MWPFs working in tandem with MRFs could significantly increase landfill diversion; andcontaminated waste streams, particularly paper and fibers, will affect quality, marketability, and commodity values.GBB arrived at similar conclusions with the Fayetteville study, which also showed the MRF in tandem with a MWPF achieved higher recovery rates including: 58 percent more OCC, mixed paper and old newspapers (ONP);107 percent more polyethylene terephthalate (PET), high-density polyethylene (HDPE) and mixed plastics; and156 percent more metals.
Bricker also alluded to the recent temporary closure of a mixed waste MRF in Montgomery, Alabama, stating that at the time of the closure, plastics quality was the same as single-stream MRFs and paper was selling at about $5 per ton above the average price in the Southeast. He emphasized a“markets first” approach to recycling and closed with the advice, “If you can’t sell it, don’t make it.”
Doug Drennen, senior project manager for J.R. Miller & Associates, Brea, California, discussed the costs and mechanics of collection and mixed waste processing. He noted that California’s goal of 75 percent recovery by 2020 (Assembly Bill 341) had increased the pressure to recycle more material. Collection costs for one-bin programs can run between $10-$12 per household each month and when you have separate bins for garbage, commingled recyclables and yard waste, the costs can run about $18-$22 per month per household, he said.
Areas that have higher participation rates and lower residual rates from single stream recycling such as Portland, Oregon and San Carlos, California, can lower their cost per ton.
Two driving factors for consider a single bin collection are lower participation and high contamination at MRFs. It can also provide an opportunity to target the mixed commercial waste and move toward meeting state diversion goals.
Drennen said the technology at MWPF has advanced and includes screening, back openers (shredders can also be used), air density separators, ballistic separators, optical sorting, eddy current and magnetic separation. The Montgomery facility had an overall recovery rate of 60 percent with individual commodities (plastics, paper and metals) being recovered at over 90 percent, according to an audit.
An integrated waste management system can include more than just recyclables as an end market. The Newby Island Resource Recovery Facility in San Jose, California, for example, is recovering organics for anaerobic digestion, which can then be turned into electricity, compressed natural gas and compost, explained Drennen. Refuse-derived fuel is another market for residuals from the MRF.
According to Drennen, the implementation of the Newby Island facility, has increased waste diversion in San Jose from 22 percent to 72 percent.
“Collection programs need to complement the processing technology selected,” said Drennen. He also emphasized the importance of public-private partnerships to balance the risks.
The 2015 Paper & Plastics Recycling Conference was Oct. 14-16 at the Marriott Downtown Magnificent Mile in Chicago. Next year’s conference will be Oct. 19-21 at the same venue. More information will be available at www.RecyclingTodayEvents.com as it is confirmed. -
(ACC Mentioned) Toxic Influence
Oct 23, 2015 | Safer Chemicals Healthy Families
With the Capitol Hill rumor mill divided on when a bill to reform the Toxic Substances Control Act will come to the Senate floor, we’d like to call your attention to a new Huffington Post article from our coalition partners at the Union of Concerned Scientists. This shows how the chemical industry — with the American Chemistry Council leading the way — is spending millions of dollars to push weak policies that allow our families to be exposed to dangerous chemicals like formaldehyde in our homes despite evidence of profound health effects.
The UCS article tells the story of how, ten years after the public health outcry over families displaced by Hurricane Katrina suffering respiratory problems, burning eyes and other ailments from their exposure to unsafe levels of formaldehyde in cheaply constructed temporary trailers, restrictions on the use of the chemical in our homes and furniture have yet to materialize.
In the article and the UCS report, Bad Chemistry: How the Chemical Industry’s Trade Association Undermines the Policies That Protect Us, are details on how the American Chemistry Council is working hard to stop countless policy efforts to better protect our families.
With so much at stake, let’s tell Senators that we need real reform that gets right to work protecting public health.
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‘Strong Basis’ for Limiting Some Solvents' Uses: SAB
Oct 26, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The scientific data the Environmental Protection Agency has gathered and analyses it has conducted provide a solid foundation for the agency to consider whether it should propose regulations limiting uses of three solvents, the Science Advisory Board said in an Oct. 22 letter.
The proposed rules would address consumer product and some limited other uses of trichloroethylene, n-methylpyrrolidone and methylene chloride. In March, the agency sought nominations of small business representatives who could serve on small business advisory review panels to discuss proposed restrictions of these solvents.
Scientific information the agency has gathered and responses it provided to questions posed by an SAB Work Group provide “a strong basis for future considerations of actions developed under the Toxic Substances Control Act (TSCA) Section 6,” the board wrote. Section 6 of TSCA authorizes the agency to restrict or ban chemicals posing an unreasonable risk.
Any Section 6 rules the EPA would propose would be of interest to chemical companies and environmental organizations even if those groups do not make or deal with these three solvents. The agency has used its Section 6 authority only once since 1991 when the U.S. Court of Appeals for the Fifth Circuit overturned an agency regulation that would have banned asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
The EPA's Spring 2015 Regulatory Agenda said it was considering Section 6 rules on these three solvents, and senior agency officials made similar remarks at meetings addressing chemicals (44 DEN A-2, 3/6/15).
No Immediate Science Review Planned
The board's letter informed EPA Administrator Gina McCarthy that the SAB has no immediate plans to review the science supporting any regulatory actions described in the Spring 2015 Regulatory Agenda.
SAB mentioned the potential solvent rulemakings as part of a broader comment underscoring its support of agency activities that could encourage the transition to safer chemicals and manufacturing processes and technologies that pose less risk to human health and the environment than the processes and technologies they could replace.
In March, the agency sought nominations of small business representatives who could serve on one small business advisory review panel to discuss possible restrictions of TCE and nominations for another panel to discuss possible restrictions of n-methylpyrrolidone and methyl chloride. The nomination period closed April 10.
An EPA official could not be reached on Oct. 23 to discuss whether those two advisory panels have been formed.
Small Business Advisory panels are composed of small businesses, governments and nonprofit organizations along with employees from the EPA, the Small Business Administration and the White House Office of Management and Budget. The panels provide EPA advice and recommendations as it considers rules that could affect small organizations.
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Oct 23, 2015 | Chemical & Engineering News
By Britt E. Erickson
Lipstick, eye glitter, face paint, and other costume makeup—often made in China—may contain hazardous chemicals such as lead, warns Sen. Charles E. Schumer (D-N.Y.), referring to a study by a health activist group. The senator is urging the Food & Drug Administration to set a limit for lead in cosmetics and beef up enforcement of packaging regulations, which require manufacturers to list all ingredients in cosmetics.
“Traces of lead and other heavy metals have consistently been found in Halloween and costume makeup from other countries and poses a great threat to the health of our children, especially during the fall season,” Schumer says in an Oct. 18 letter to FDA Acting Commissioner Stephen Ostroff. Schumer cites a 2009 study by the Campaign for Safe Cosmetics, a project of the Breast Cancer Fund, which found all 10 face paints it tested contained lead and six of the 10 had nickel, cobalt, or chromium.
Exposure to lead and other metals is associated with impaired cognitive ability. Health organizations around the world have concluded that there is no safe level of lead exposure, particularly for children whose brains are still developing.
Toxic chemicals such as lead in children’s face paint are a “scary thought,” Schumer riffs in the letter, adding that FDA should “unmask the ingredients that are often left off of the packaging.”
FDA acknowledges that face paints have caused problems such as skin rashes, but the agency has not investigated the dangers of heavy metals in these products.
Lead is banned in cosmetics sold in Canada and the European Union, but not in makeup sold in the U.S. “This lack of regulation means that many parents are exposing their young children, and even themselves, to products that contain harmful metals,” Schumer says.
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EPA IG Alleges Poor Morale at Chem Safety Board
Oct 26, 2015 | BNA Daily Environment Report
By Stephen Lee
The Chemical Safety and Hazard Investigation Board must improve employee morale and do more investigations, the Environmental Protection Agency inspector general said following an investigation.
The Oct. 22 report draws on a Republican House committee hearing from 2014 in alleging a toxic work environment, an unproductive work environment and fear of retaliation from the former chair, Rafael Moure-Eraso.
Although the agency has a new chairwoman, Vanessa Sutherland, the IG said the Chemical Safety Board's new leadership “needs to assure that the CSB functions as intended and restores open communication among staff, the board and the chairperson.”
Not Enough Investigations
The report further said the CSB isn't investigating all accidents that fall within its legal jurisdiction and should become more active. The agency should also develop a protocol for closing investigations that remain open for longer than three years, which the CSB has already taken some steps to ensure.
Finally, the IG said the CSB should determine the need for a chemical reporting regulation under the Clean Air Act Amendments of 1990. The board's ability to do so has been hampered by congressional budget cuts and sequestration, the IG conceded, but the CSB also intends to revisit its rulemaking effort.
Other recommendations addressed purchase cards, program operation, the information security program and electronic records management.
Celeste Monforton, a public health lecturer at George Washington University, praised the report.
“The IG is doing its job sending the required report to the new CSB chair,” Monforton, a former Occupational Safety and Health Administration policy analyst, told Bloomberg BNA Oct. 22. “It simply reiterates the management weaknesses that I'm sure the entire board is well aware. I think any new leader would appreciate the current and concise synopsis by an independent set of eyes of an organization's challenges.”
Political Motivations?
But Jeff Ruch, executive director of the Public Employees for Environmental Responsibility watchdog group, was critical not only of the latest EPA IG report, but more generally of that agency's ongoing investigations into the CSB.
Ruch noted the inappropriateness of the IG basing its morale claims on a Republican staff report, “as if it were reliable,” and said the recommendation to do more investigations ignores the obvious facts that the CSB not only lacks the budget, but also faces complaints that its investigations take too long.
“For [the IG] to make that point without offering any concrete guidance as to how [the CSB] is supposed to respond, it makes you wonder why they bothered to issue the report,” Ruch told Bloomberg BNA.
He also advanced the theory that the EPA IG has been trying to help House Republicans persecute the CSB, thereby allowing lawmakers to score wins against the spectre of big government, in exchange for political support for a bigger IG budget.
“This report reinforces the notion that their work has been politically targeted in a way that is not helpful in terms of the larger issue of chemical safety,” Ruch said.
The CSB didn't reply to an e-mail for comment on this story.
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Chemical Safety Board Urged to Improve Morale
Oct 23, 2015 | Government Executive
By Charles S. Clark
The Chemical Safety Board, with a new chairman and four of its five-member complement in place, should focus on improving employee morale, a watchdog recommended on Thursday.
Environmental Protection Agency Inspector General Arthur Elkin in a report harkened back to lawmakers’ descriptions of CSB’s “toxic work environment,” retaliation against whistleblowers and since-removed Chairman Rafael Moure-Eraso’s “disregard for proper board governance.”
“The current board needs to assure that the CSB functions as intended and restores open communication among staff, the board and the chairperson,” the watchdog wrote.
He also said CSB should increase the number of investigations it takes on and improve investigative management controls. “CSB has not published a chemical incident reporting regulation as envisioned in the Clean Air Act Amendments of 1990,” the report said.
The agency has made progress in taking actions for 13 of 17 prior recommendations in information technology security, he said.
More effort is needed, however, in electronic records management given that the previous chairman and senior managers “used private non-government email systems to communicate on CSB matters,” the report said. CSB has held training classes for employees regarding email and instant messaging record policies, but still “needs to create a formal policy that complies with the requirements and guidelines found in the Presidential and Federal Records Act Amendments of 2014.”
The agency generally agreed with recommendations.
At a public business meeting on Oct. 21, Vanessa Sutherland said she had met with the IG and had received a favorable response. “We will focus on organizational health, not just morale but investigations’ status,” she said. “With four of five board members, we now have a great opportunity to get things done in these exciting times.” Noting that the public meeting was held in a rented hotel conference room, Sutherland said, “while there is a price to transparency, it is better than the alternative.”
Former interim chairman Rick Engler, a board member, also expressed hope for “putting these significant controversies past us.” He commended the staff for continuing to produce work during the past year of uncertainty, and affirmed governance rules that require public meetings and allow board members to add agenda items.
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(ACC Mentioned) The Oncoming Train Crash
Oct 25, 2015 | The Wall Street Journal - Opinion
Congress spends much of its time sorting through crises created by past legislation, and this week will be no exception. Barreling down the tracks is a legal deadline for railroads that threatens to slam the economy if legislators don’t revisit one of their unwise mandates.
A month after a deadly train accident in 2008, Congress forced passenger and many freight railroads to install technology called positive train control, or PTC, by Dec. 31 of this year. The unwieldy $13 billion or more apparatus would prevent fewer than 5% of accidents, according to estimates.
Railroads haven’t met the mandate, and a September Government Accountability Office report detailed the “numerous interrelated challenges” the industry faced, especially the federal government. The Federal Railroad Administration took months to review safety and development plans. When the Federal Communications Commission heard that about 10,000 required transmission poles had popped up, the agency halted construction for a year and stalled permits.
The PTC technology, which is by now out of date, required designing, producing and installing more than 20 new parts, according to GAO, and only a few manufacturers could churn them out. One railroad’s equipment also may not be able to communicate with another’s. GAO guesses most everybody could comply within the next five years.
What happens if Congress doesn’t extend the date? Railroads could pay penalties, but no sane company would assume the legal risks of chugging along while knowingly out of compliance. Union Pacific, New York’s Metro Transportation Authority and dozens more have warned of service disruptions, which will wreak havoc well before the end of the year. Norfolk Southern Railway says it will stop accepting certain commodity shipments on Dec. 1. And if your commute is miserable now, wait until you can’t catch a train.
A one-month interruption would cost $30 billion and nearly 700,000 jobs, according to a report from the American Chemistry Council. Add to that 28,000 fewer homes built and 175,000 fewer cars sold, as the effects ripple across the supply chain. You’d need 600,000 trucks to haul the almost two billion tons in freight that travels by rail.
An extension should be an easy bipartisan fix, if not for Senator Barbara Boxer (D., Calif.). The Highway Trust Fund runs out of gas this week, so Congress must pass a temporary measure to buy more time. Legislators could tuck a PTC extension into the stopgap, but Conductor Boxer is derailing that idea so she can use it as leverage in negotiating a long-term highway agreement. Remember this the next time she is on the Senate floor railing about “public safety.”
Both chambers have rolled out language that would allow regulators to set benchmarks on implementing the technology, rather than a drop-dead date for compliance. Congress can pass this, and make partial amends for its previous mistakes, if Ms. Boxer gets off the tracks.
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What To Look For As Congress Sets A Six-Year Agenda For Dangerous Goods Transport
Oct 23, 2015 | BNA Energy & Environment Blog
By Rachel Leven
The House and Senate are largely in sync when it comes to determining a path through fiscal year 2021 for hazardous materials transportation programs.
A House committee yesterday approved a highway reauthorization bill that would set policy and funding levels for the programs that ensure hazardous materials—anything from nail polish to crude oil—are transported safely. The Senate passed its own version of the bill in July, and now the two versions must be reconciled in conference committee.
Here are how some provisions are likely to be settled as the two chambers meet in conference:
Hazmat programs aren’t going to get wished-for funding. Just look at the below graph. Or you can consider FY 2016. The administration requested $64 million for FY 2016. The Senate offered up to $44 million. The House offered $53 million. This won’t be an administration win.
Congress is going to take a stance on crude-by-rail policy. Congress stayed on the sidelines when public scrutiny of crude-by-rail was at its peak, offering policy solutions but giving the Transportation Department room to offer its own solution first. Now that DOT’s rule is final, the chambers are checking DOT with mandates on everything from brakes to notification.
Congress still won’t budge on that administration user fee proposal, but it isn’t saying no to everything. Neither the House nor the Senate included the administration’s request to add a user fee for certain hazmat programs. But, other DOT requests—such as receiving the authority to alter hazmat rules in case of a national emergency to allow materials such as propane to get to areas that need it—are in both bills.
Authorization for hazmat programs expires Thursday. Another short-term patch will almost definitely be used to allow for time to conference the two bills.
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Deadline For Train Safety Technology Undercut By Industry Lobbying
Oct 25, 2015 | The Washington Post
By Ashley Halsey III and Michael Laris
Until a train barreled off the tracks at 9:26 p.m. on May 12, it had been business as usual on Capitol Hill. Among the bills quietly making their way toward a final vote was one that would postpone by several years a multibillion-
dollar safety-enhancement deadline facing the railroad industry.A victory for the railroads, which maintain one of the most powerful lobbying efforts in Washington, seemed all but certain and likely to be little noticed outside of the industry.
But at that moment, an Amtrak train hurtling toward New York City derailed in Philadelphia, turning into a tangle of crushed metal that killed eight passengers and injured 200 more.
Everyone — including the railroad and federal investigators — agreed that the catastrophe could have been prevented by a single innovation called Positive Train Control (PTC). It’s an automatic braking system that federal regulators call “the single-most important rail safety development in more than a century.”
Now, after a period of reflection and several inquiries, Congress once more is on the brink of postponing the deadline for use of PTC. The proposed delay — until at least 2018 — comes in a new regulatory era for the railroads. Trains filled with volatile natural gas or oil have derailed seven times so far this year, and there is fear that one could cause catastrophic explosions as it passes through a city. A mighty lobby
What has taken place since May provides insight into the influence that effective lobbyists wield in Washington and how ready access to members of Congress has helped one industry fend off a costly safety mandate.
Seven years ago, Congress ordered railroads to have PTC installed by the end of 2015. It was an uncomfortable deadline for the industry, one it argued should be postponed. PTC technology was too complex, the railroads said, and the $14.7 billion cost to equip freight and commuter lines was prohibitive. Federal economists put the cost-benefit ratio at about 20 to 1.
With their lobbyists in overdrive in 2008, the railroads might have persuaded Congress to delay the mandate. But in the middle of that debate, a head-on train collision in California killed 25 people and injured 102 others. The National Transportation Safety Board said PTC could have prevented the accident, and that moved lawmakers to settle on the Dec. 31, 2015, deadline.
The NTSB says it has investigated 145 rail accidents since 1969 that PTC could have prevented, with a toll of 288 people killed and 6,574 people injured.
In the years since Congress moved to finalize the deadline in 2008, the railroad industry has spent $316 million, according to the Center for Responsive Politics (CRP), to maintain one of the most savvy lobbying teams in Washington. It also contributed more than $24 million during the same period to the reelection efforts of members of Congress, targeting in particular the chairmen and members of key committees that govern its business.
In 2011, the chairman of the House subcommittee on railroads spoke out at a hearing, denouncing the PTC mandate as “an example of regulatory overreach.” He said PTC would have “a very, very small cost-benefit ratio.”
Since then, that chairman, Rep. Bill Shuster (R-Pa.), has risen to lead the full House Transportation Committee. Late last month, he introduced a bipartisan bill to extend the PTC deadline to at least 2018, and beyond if the “railroads demonstrate they are facing continued difficulties.”
“Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so,” Shuster said in a statement announcing the bill.
Since taking office in 2001, Shuster has received campaign contributions of $446,079 from the railroad industry, according to the CRP, with $141,484 of it coming in the 2013-2014 election cycle.
Money flows readily to the chairs of powerful committees, but other members of the House Transportation Committee also have benefited from railroad contributions. In the 2013-2014 election cycle, committee members received more than $1.25 million in direct contributions to their campaigns. As of the end of September, the railroads had pitched another $721,742 at the House committee members.
The Senate also has benefited from the railroad industry’s largesse, according to the CRP, with 77 senators receiving nearly $1.5 million in campaign contributions in 2013-2014.
Outside the Beltway, massive contributions may sound like the cost to buy a vote in Congress. But in this era of mega-money politics, campaign contributions win something almost as valuable for railroad lobbyists: face time with a member of the House or Senate.
“They call and they get a member meeting right away,” said a senior Senate staff member familiar with the process. “They have a lot of access.”
And that access brings into play what are described as some of the best lobbyists on Capitol Hill, including several dozen who once were staff members or lawmakers in Congress.
Rep. Peter A. DeFazio (Ore.), the ranking Democrat on the Transportation Committee and the recipient of more than $70,000 in railroad campaign money since 2013, says it’s the footwork of the lobbyists, not the campaign contributions, that wins the day.
“In these days, when you have one Wall Street billionaire spend a million bucks [on a campaign], getting a few thousand dollars from a railroad?” he said with a shrug. “The railroads invest a lot of time on the Hill, and they present a pretty good story for the most part.” Oil boom raises the stakes
Rail safety has never been a more pressing issue than it is today. So far, the people who have died in U.S. accidents that PTC could have prevented have generally been crew members or passengers. That could change in dramatic, catastrophic fashion.
The number of rail tank cars carrying flammable material in the United States has grown from 9,500 seven years ago to 493,126 last year, thanks to the boom in domestic oil produced in the Bakken oil fields.
Those trains rumble from the oil fields in Montana, North Dakota and Saskatchewan, Canada, to refineries on the East, West and Gulf coasts.
This year, seven trains have derailed, either leaking their contents or exploding. All of the U.S. explosions have come in remote rural areas where the erupting fireballs did little damage.
Canada was not so lucky.
In July 2013, a runaway freight train carrying 74 tank cars full of Bakken oil derailed in the town of Lac-Mégantic, setting off an inferno that destroyed 30 downtown buildings and killed 47 people.
Coastal states in the United States and the city of Chicago, the most important railroad hub in the nation, have come up with scenarios that depict the potential damage and death tolls should a train explode in different sections of their urban areas. Chicago, fearing that the plan’s release could cause panic, has declined to make it public.
Sarah Feinberg, acting head of the Federal Railroad Administration, says that worries of a train exploding in the middle of a city have caused her sleepless nights.
“If PTC is not fully implemented by Jan. 1, 2016, we can and should expect there to be accidents in the months and years to follow that PTC could have prevented,” she told the House subcommittee on railroads in June.
Bob Gildersleeve Sr., whose son Bob, a Maryland father of two, was killed in the May crash, said rail companies seem to be evading the mandate with an attitude of: “What are you going to do about it?”
“Is a deadline a deadline?” Gildersleeve asked. “We’re talking about fixing things that will eventually save lives, and you guys haven’t done it. Why?” Many railroads far behind
The railroads’ pitch for an extension — both loudly in the media and quietly to Congress — has been straightforward. Unless the deadline is postponed:
“Transportation of all goods over freight rail grinds to a halt; the U.S. economy loses $30 billion; household incomes drop by $17 billion; 700,000 Americans lose their jobs; millions of commuters are stranded.”
That was the message Oct. 19 when officials from three commuter rail lines and Association of American Railroads President Ed Hamberger held a conference call with reporters to add their voices to a chorus calling for an extension of the PTC deadline.
“If the congressionally mandated deadline of Dec. 31 is not extended, there will be a transportation crisis in the country with severe economic consequences,” said Michael Melaniphy, president of the American Public Transportation Association.
The call had an unintended subtext; all three of the commuter rail lines represented — Virginia Railway Express, Chicago’s Metra system and California’s San Joaquin Regional Rail Commission — said their installation of PTC would be substantially complete by the end of 2015. Amtrak also promises to have PTC operating in the Northeast Corridor rails that it owns by the current deadline.
But most passenger trains operate on track that’s owned by the freight railroads, and the freight rail lines are far from ready to meet the deadline. The freight companies say that without an extension, all traffic on their lines must halt to comply with the law.
The railroads say they’ve already spent $5.7 billion on PTC installation and are committed to finishing the job. None will meet the Dec. 31 deadline.
“It doesn’t matter how fast the bear is that’s chasing you, if you’re running as fast as you can, you can’t run any faster,” said Frank Lonegro, vice president of the freight rail carrier CSX, which operates more than 21,000 miles of rail in 23 eastern states, Washington and two Canadian provinces.
Some of the big railroads have made progress, while others lag far behind.
One of the largest, the BNSF Railway, has made substantial progress. At the other end of the spectrum, Union Pacific hasn’t fully equipped any of its 6,532 locomotives, according to a Federal Railroad Administration report released in August.
“Union Pacific is pretending [the deadline] is not happening,” said one federal official who reviewed the report.
Union Pacific spokesman Aaron Hunt says that “integrating these technologies into an interoperable system is very difficult,” much like merging medical records into a computerized system, and that the company already has made a $1.7 billion investment, including work on the bulk of its locomotives.
Lonegro’s colleague, CSX spokesman Rob Doolittle, said railroad lobbyists have been telling Congress for years that a 2015 deadline wasn’t realistic.
“In the early conversations, before the law was passed, the industry was identifying 2018 as a reasonable deadline that we thought we could achieve,” he said.
A federal official familiar with those 2008 negotiations offered a different perspective.
“The railroads were in the room, and [Association of American Railroads] and those guys were the ones who said 2015 was doable. They did not embrace the deadline, but they said it was a fair bill,” said the official, who spoke on the condition of anonymity because of involvement in the current negotiations.
“It certainly wasn’t, ‘Oh, we sprung it on the railroads at the last minute,’ as they would like some to believe,” said a staff member who was in the room while the deal was being struck.
When the final regulations were put in place nearly six years ago, federal officials tallied up the expected benefits of having the automatic braking system in place. The cost-benefit analysis put a price tag on crumpled locomotives, train delays, track damage, evacuation costs, the cleanup of hazardous spills and other consequences of the crashes that could be prevented.
Government economists also sought to calculate the human costs in injuries and deaths, using a figure of $6 million for each life that was expected to be saved. Over 20 years, there would be $269 million in savings, they figured, or the equivalent of 45 lives spared. There would be another $200 million in prevented injury costs.
In all, they projected $674 million in safety benefits from the PTC system. It would cost $13.2 billion over 20 years, including maintenance costs, to net those benefits, the economists calculated.
That came out to a cost-benefit ratio of about 20 to 1, a disconnect seized on by railroad executives, lobbyists and lawmakers sympathetic to their needs, such as Rep. John J. Duncan Jr. (R-Tenn.).
“Now, everybody has tremendous sympathy for those families that lost loved ones in the Amtrak accident, but my goodness, now we’re going to be spending billions to make something that already is one of the safest things in the entire world [safer]?” Duncan, who has received $303,250 in railroad campaign support during a 27-year career in the House, said at a June hearing. “And I’m thinking that we would be better off to spend those billions in many, many other ways — cancer research, and everything else.”
But federal rail officials and some outside experts argue that the technology needed to prevent crashes ultimately can transform the future of railroading. More frequent trains, more efficiently deployed across the country, could move more goods while cutting down on expensive fuel costs, dramatically increasing potential benefits.
Some industry executives have embraced this future, while others have pushed back. In a conference call with Wall Street analysts just 19 days before the Amtrak derailment, Union Pacific’s president and chief executive, Lance M. Fritz, predicted Congress would extend the deadline, adding that his company’s lobbyists were “giving feedback and input into our thoughts to help navigate that process.”
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Few Railroads On Track To Meet End-Of-Year Safety Deadline
Oct 23, 2015 | NPR
By Jeff Brady
Railroads warn they may have to shut down unless Congress extends an end-of-the-year deadline to install new safety equipment called Positive Train Control.
PTC is a complex system that monitors a train's location and speed, then automatically slows down or stops a locomotive if the engineer doesn't respond to a danger warning.
Congress required passenger and freight railroads to install PTC in 2008, after a Metrolink passenger train collided with a freight train in Los Angeles, killing 25 people. It also would have slowed down the fast-moving Amtrak train that derailed earlier this year in Philadelphia, killing eight.
The 2008 Rail Safety Improvement Act set a deadline of Dec. 31, 2015, for railroads to implement PTC systems — or face big fines. Metrolink is among the few railroads expected to meet the deadline, according to a Government Accountability Office report. Other passenger railroads on track to finish by the end of the year include Caltrain, Southeastern Pennsylvania Transportation Authority, known as SEPTA, and TriMet in Oregon.
Amtrak expects to have PTC installed by the deadline along the Northeast Corridor — between Washington, D.C., and Boston — and on its line between New York and Harrisburg, Pa.
The mandate is most expensive for freight railroads, which have tens of thousands of miles of track to include in their PTC systems.
"We are committed to getting this job completed," says Edward Hamberger, president and CEO of the Association of American Railroads. By the end of 2015, Hamberger says, freight lines will have spent $6 billion on PTC systems and will spend $4 billion more to complete installation.
"It's like having a home halfway built: You want to finish it; you want to move in," he says. But railroads need more time to finish the job, he adds.
As the deadline approaches, railroads plan to shut down instead of paying those fines. "There will be a transportation crisis in this country with severe economic consequences," warns Michael Melaniphy, president and CEO of the American Public Transportation Association.
During a recent conference call with reporters, Melaniphy and Hamberger painted a dramatic picture of commuters and trucks clogging the nation's roads because trains won't run. They want lawmakers to extend the deadline for up to five years.
Melaniphy says if there's going to be an extension, it needs to be made before the end of October because railroads need about eight weeks for "an orderly shutdown, including public notification to customers and labor unions."
The Senate already has passed a bill extending the deadline and there are indications House leaders are prepared to do the same.
The situation raises a question: Why are some railroads able to meet the deadline when others aren't? The answer is that while the 2008 law requires the same thing of railroads, each line has different circumstances.
"You cannot purchase PTC systems off the shelf at Best Buy," Melaniphy says.
Some railroads had trouble even securing the radio frequency that allows all the parts of the PTC system to communicate. And then there are inevitable bugs to work out.
SEPTA General Manager Jeffrey Knueppel says several things came together to help his agency meet the deadline. He says SEPTA is spending $328 million on its system.
Until recently, that would have been the bulk of the agency's capital budget. But two years ago, Pennsylvania raised gas taxes to boost funding for transportation infrastructure. That helped alleviate the cost problem for SEPTA.
"We had a good set of circumstances, a good plan, a good contractor and we retained our people," says Knueppel, referring to the fact that as railroads are working now to meet the PTC deadline, a generation of experienced workers across the industry is reaching retirement age.
Knueppel says he's not surprised that an extension is needed. Even with good planning, funding and some luck, he says meeting the end-of-the-year deadline will be a photo finish for SEPTA.
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(ACC Mentioned) Court Challenges Pile Up
Oct 23, 2015 | E&E News PM
By Robin Bravender
Legal challenges to a landmark Obama administration climate rule continue to flood in now that the rule is officially ripe for lawsuits.
By this afternoon, U.S. EPA's opponents had lodged more than a dozen petitions asking the U.S. Court of Appeals for the District of Columbia Circuit to weigh the legality of the rule that aims to crack down on power plants' greenhouse gas emissions. Those challenging the regulations in court today include more than two dozen state representatives, industry associations and labor groups.
A coalition of states led by West Virginia filed a request this afternoon asking the court to halt EPA's power plant rule while judges consider the case.
"The states are being immediately and irreparably harmed by EPA's illegal effort to force States to reorder their electrical generation systems," the states wrote in their motion. "This case involves an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation's energy grid."
West Virginia and 23 other states this morning filed a separate petition asking the court to review the regulation (Greenwire, Oct. 23).
The other states that signed on to West Virginia's challenge are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming.
Two other states -- Oklahoma and North Dakota -- have filed their own petitions asking the court to review the rule. The court will likely group the challenges to the rule together into a single case.
An industry coalition led by the U.S. Chamber of Commerce has also asked the court to review the rule and to issue a stay halting the regulation in the meantime.
"The rule exceeds the established bounds of EPA's authority under the [Clean Air Act], sweeping virtually all aspects of electricity production within EPA's control. States and industry must begin now to overhaul the power sector, including passing new laws to ensure the permitting, construction, and funding of EPA's preferred power sources, as well as shutting down existing disfavored plants that would otherwise be dispatched to meet demand," the groups wrote to the court.
The chamber was joined in its lawsuit by the National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.
Several other petitions were filed with the court today, and others are expected to be filed in the coming weeks. Following today's publication of the EPA rule in the Federal Register, opponents have 60 days to file challenges in the federal appeals court.
EPA and its backers say the rule is on firm legal footing and say federal judges are unlikely to halt the regulation.
EPA Administrator Gina McCarthy wrote in a blog post today that -- far from being a departure from past practice -- the existing power plan rule is "fully consistent with the Clean Air Act" and respects the "state-federal partnership" that has been the basis for air quality rules since the law was enacted in 1970.
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Arctic Offshore Leasing Put On Ice
Oct 23, 2015 | The Hill - Contributors
By Jayni Hein and Michael A. Livermore
The U.S. Department of the Interior announced last week that it is canceling future lease sales in federal Arctic waters off Alaska's northern coast, a decision that places future Arctic offshore drilling on ice. This decision signals a clear shift in Arctic offshore leasing policy and marks a victory for environmentalists who have long highlighted the risks inherent in leasing in this remote and unpredictable region. But this decision also makes good economic sense: It reflects the value of delay in light of the significant economic, environmental and social uncertainties associated with offshore drilling in the Arctic.
Interior's decision followed an announcement by Royal Dutch Shell that it would cease exploration in the Chukchi and Beaufort Seas, citing disappointing results from a well drilled in the region. Interior canceled lease sales that were slated for 2016 and 2017 under its current five-year program (covering 2012 to 2017), which essentially sets the national agenda for offshore leasing. In addition, current leases held by Shell and other companies in Arctic waters will not be extended. Beaufort Sea leases are set to expire in 2017, and Chukchi Sea leases in 2020.
Despite grumbling from some corners, Interior's decision makes sense when "option value," or the informational value of delay, is acknowledged. Option value is a concept widely used in financial markets that analyzes the value of delaying irreversible decisions until more information is available. The uncertainties involved in Arctic drilling are substantial and include unpredictable and extreme weather conditions; limited offshore drilling experience as compared to other regions; pristine and sensitive wildlife habitat; and remote drilling locations distant from robust emergency response infrastructure. In addition, historically low oil prices demonstrate economic uncertainty; in fact, Shell's own decision to abandon drilling reflects an understanding of the value of waiting for more information about oil prices, operational costs and risks.
Interior's shift may have been influenced by a 2015 federal Court of Appeals decision, Center for Sustainable Economy v. Jewell, which addressed a challenge to Interior's 2012-2017 leasing plan. Plaintiffs argued that incomplete and flawed economic analysis leads the government to sell fossil fuel leases too quickly and too cheaply, potentially costing the American public billions of dollars and leading to high-risk drilling (full disclosure: the Institute for Policy Integrity, with which we are affiliated, represented the plaintiffs, and Michael Livermore argued the case). Petitioners argued that Interior's Bureau of Ocean and Energy Management (BOEM) should account for option value in order to help guide leasing away from areas with the greatest uncertainty and optimally time leases. The U.S. Court of Appeals for the District of Columbia Circuit ruled against petitioners, finding quantitative option value techniques not yet sufficiently developed to find Interior's decision to forgo them arbitrary or capricious. However, the court's decision explicitly acknowledged that there is "a tangible present economic benefit to delaying the decision to drill for fossil fuels to preserve the opportunity to see what new technologies develop and what new information comes to light."
Interior's new draft proposed program for offshore leasing, which covers 2017 to 2022, for the first time includes a robust discussion of option value. This is a welcome development: Even used qualitatively, option value can provide important insights into when, where and on what terms irreversible offshore leasing should take place. Interior's recent decision to forgo leasing that had been authorized in the earlier plan is a further step in the direction of economically rational decision making.
But Interior's work is not yet done. The draft program for post-2017 includes only a narrative discussion of option value, not the kind of clear, quantitative assessment that has greater power to affect decision-making. And Arctic lease sales also remain tentatively scheduled for 2020 and 2022 under the draft program. In light of the myriad uncertainties associated with Arctic drilling, greater analytic rigor and a more cautious approach to these lease sales would help ensure that Interior is making decisions that best promote the interests of the American people.
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Oklahoma Earthquakes Are a National Security Threat
Oct 23, 2015 | Bloomberg Business
By Matthew Philips
In the months after Sept. 11, 2001, as U.S. security officials assessed the top targets for potential terrorist attacks, the small town of Cushing, Okla., received special attention. Even though it is home to fewer than 10,000 people, Cushing is the largest commercial oil storage hub in North America, second only in size to the U.S. government's Strategic Petroleum Reserve. The small town's giant tanks, some big enough to fit a Boeing 747 jet inside, were filled with around 10 million barrels of crude at the time, an obvious target for someone looking to disrupt America's economy and energy supply.
The FBI, state and local law enforcement and emergency officials, and the energy companies that own the tanks formed a group called the Safety Alliance of Cushing. Soon, guards took up posts along the perimeter of storage facilities and newly installed cameras kept constant surveillance. References to the giant tanks and pipelines were removed from the Cushing Chamber of Commerce website. In 2004, the Safety Alliance simulated a series of emergencies: an explosion, a fire, a hostage situation.
After the shale boom added millions of additional barrels to Cushing, its tanks swelled to a peak hoard of more than 60 million barrels this spring. That's about as much petroleum as the U.S. uses in three days, and it's more than six times the quantity that triggered security concerns after Sept. 11. The Safety Alliance has remained vigilant, even staging tornado simulations after a few close calls.
Now the massive oil stockpile faces an emerging threat: earthquakes. In the past month, a flurry of quakes have hit within a few miles of Cushing, rattling the town and its massive tanks. According to the Oklahoma Geological Survey, more than a dozen quakes have registered 3.0 or higher on the Richter scale within a few miles of Cushing since mid-September. The biggest, registering at 4.5, hit about three miles away on Oct. 10.
This is all part of the disturbing rise in earthquakes in Oklahoma, which has corresponded to increased fracking activity and oil production in the state. Since 2008, Oklahoma has gone from averaging fewer than two earthquakes per year that measure at least 3.0 in magnitude to surpassing California as the most seismically active state in the continental U.S. This year, Oklahoma is on pace to endure close to 1,000 earthquakes. Scientists at the National Earthquake Information Center in Colorado recently published a paper (PDF) raising concerns that the welter of moderate-sized earthquakes around Cushing could increase the risk of larger quakes in the future.
Seismologists believe the quakes are the result of wastewater injection wells used by the fracking industry. Horizontal oil wells in Oklahoma can produce as many as nine or 10 barrels of salty, toxin-laced water for every barrel of oil. Much of that fluid is injected back underground into wastewater disposal wells. It is this water, injected near faults, that many seismologists—including those at the U.S. Geological Survey—say has caused the spike in earthquakes.
The role that fracking plays in the rise of earthquakes has been hugely controversial in Oklahoma, where one in five jobs is tied to the oil and gas industry. This year, as Bloomberg reported, seismologists at the Oklahoma Geological Survey were pressured by oil companies not to make a link between the earthquakes and fracking-related wastewater injection wells. Under the weight of mounting scientific evidence, Republican Governor Mary Fallin's administration in April finally acknowledged the role fracking played in earthquake activity.
In June, the Oklahoma Supreme Court said that a woman injured in an earthquake could sue an Oklahoma oil company for damages. That company, Tulsa-based New Dominion, is one of the pioneers of a new breed of high-volume wastewater injection wells that can suck down millions of barrels of water and bury it deep underground. In April, Bloomberg Businessweek profiled David Chernicky, its charismatic founder and chairman.
Now that quakes appear to have migrated closer to Cushing, the issue of what to do about them has morphed from a state issue to one of natural security. The oil in Cushing props up the $179 billion in West Texas Intermediate futures and options contracts traded on the New York Mercantile Exchange. Not only is Cushing crucial to the financial side of the oil market, it is integral to the way physical crude flows around the country. As U.S. oil production has nearly doubled over the past six years, Cushing has become an important stop in getting oil down from the Bakken fields of North Dakota and into refineries along the U.S. Gulf Coast. If even a couple of Cushing's tanks had to shut down, or a pipeline were damaged, the impact could ripple through the market, probably pushing prices up. That outcome is especially likely if a spill were to knock Cushing offline for a period of time—a scenario no less dangerous than a potential terrorist attack.
"Induced seismicity is the most terrifying of all the fracking risks," said Kevin Book, managing director of Clearview Energy Partners, a Washington-based consultancy. The fact that more quakes appear to be getting closer to Cushing is "definititely concerning," said Book. "Anything that puts those tank farms at risk is very serious."
So far, no damage has been reported by companies that own the tanks. Michael Barnes, a spokesperson for Enbridge, a Canadian company that owns the largest tank capacity in Cushing, said employees checked for signs of damage around the facility after the Oct. 10 quake and found none. Enbridge has not made changes to its emergency or disaster plans in light of the quakes.
The local fire and police departments have updated their emergency response plans to include information related to earthquake safety. "We're fairly new to earthquakes in Oklahoma," said Chris Pixler, Cushing's fire chief. "We've always been good at preparing for fires and tornados, and now we're making some changes we felt were necessary in terms of getting information out to citizens about earthquake safety."
Each tank in Cushing is surrounded by a clay-lined berm designed to contain the oil in the event of a rupture. Thousands of miles of pipelines stretch beneath Cushing, connecting it to distribution hubs all over the country. It's those arteries that we should be most concerned about getting damaged in an earthquake, said John Kilduff, a partner at Again Capital, a hedge fund that focuses on energy. "Losing some of that pipeline infrastructure could be devastating for a time," Kilduff said. If enough damage occurred, "It could prompt an energy crisis if oil couldn't flow the way we need it to."
State regulators are already taking action. Last month the Oklahoma Corporation Commission, which oversees oil and gas, ordered wells within three miles to shut down entirely and those between three and six miles from the town to reduce their volume by 25 percent. On Oct. 19, the OCC put all wastewater injection wells within 10 miles of Cushing on notice. Getting to the bottom of the state's earthquake flurry poses a huge test for the embattled OCC, which is short on staff and has historically had close ties to the oil and gas industry it regulates. The regulator has typically dealt with environmental hazards such as oil spills, not issues of seismic activity. "They not only have to reassure their own constituents they are up to the job, but the federal government as well," said Book. "They're one big event away from a significant federal response."
The Obama administration has largely stayed out of the issue. Last month, however, the Environmental Protection Agency urged the OCC to "implement additional regulatory actions." The past week has been relatively calm around Cushing, with only a couple of minor rumblings that didn't hit nearby. For now, however, the threat of quakes has the city on higher alert than the threat of a terror strike.
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Majority of States Challenge EPA's Clean Power Plan
Oct 26, 2015 | BNA Daily Environment Report
By Andrew Childers and Anthony Adragna
A majority of states and senior congressional leaders took immediate steps to block the Environmental Protection Agency's suite of carbon dioxide standards for power plants as soon as they were published in the Federal Register.
“The EPA's rule is flatly illegal and one of the most aggressive executive branch power grabs we've seen in a long time. If you want to impose a cap and trade regime on the American energy system, do it in Congress,” West Virginia Attorney General Patrick Morrisey told reporters Oct. 23 while announcing a lawsuit brought by 24 states challenging the agency's Clean Power Plan.
At least 26 states as well as coal giant Murray Energy Corp., Alabama Power Co., National Rural Electric Cooperative Association, the Utility Air Regulatory Group, the U.S. Chamber of Commerce and 15 other industry groups, the International Brotherhood of Boilermakers, the National Mining Association and the American Coalition for Clean Coal Electricity filed challenges in the U.S. Court of Appeals for the District of Columbia Circuit to the EPA's Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions standards for existing power plants in each state (80 Fed. Reg. 64,661; West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15).
Other challenges to the Clean Power Plan are:
• Oklahoma v. EPA, No. 15-1634;
• Int'l Bhd. of Boilermakers v. EPA, No. 15-1365;
• Murray Energy Corp. v. EPA, No. 15-1366;
• Nat'l Mining Ass'n v. EPA, No. 15-1367;
• Am. Coal. for Clean Coal Electricity v. EPA, No. 15-1368;
• Util. Air. Regulatory Grp. v. EPA, No. 15-1370;
• Ala. Power Co. v. EPA, No. 15-1371;
• CO2 Task Force of the Florida Elec. Power Coordinating Grp. Inc. v. EPA, No. 15-1372;
• Montana-Dakota Utilities Co. v. EPA, No. 15-1373;
• Tri-State Generation & Transmission Ass'n Inc. v. EPA, No. 15-1374;
• United Mine Workers of Am. v. EPA, No. 15-1375;
• Nat'l Rural Elec. Coop. Ass'n v. EPA, No. 15-1376;
• Westar Enegy Inc. v. EPA, No. 15-1377
• North Dakota v. EPA, No. 15-1380;
• U.S. Chamber of Commerce v. EPA, No. 15-1382; and
• Ass'n of Am. Railroads v. EPA, No. 15-1383
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Additionally, key congressional leaders announced plans to block the rule through the Congressional Review Act.
Stay Sought
Several states and industry groups have already filed motions asking the D.C. Circuit to stay implementation of the rule pending litigation, arguing it imposes immediate burdens on utilities and states even though the compliance deadline is not until 2022.
“The rule exceeds the established bounds of EPA's authority under the [Clean Air Act], sweeping virtually all aspects of electricity production within EPA's control. States and industry must begin now to overhaul the power sector, including passing new laws to ensure the permitting, construction, and funding of EPA's preferred power sources, as well as shutting down existing disfavored plants that would otherwise be dispatched to meet demand,” the Chamber of Commerce and other industry groups said in their Oct. 23 stay request.
Morrisey said states would be filing their own petition asking the court to halt the rule until litigation can be resolved.
“We'd respectfully ask the court to rule as fast as possible,” he said.
The lawsuits currently filed all challenge the Clean Power Plan but additional lawsuits are expected to target the EPA's new source performance standards (RIN 2060-AQ91), for carbon dioxide emissions from new power plants (80 Fed. Reg. 64,509). Both rules were published in the Federal Register Oct. 23 (205 DEN A-1, 10/23/15).
Although a majority of states are challenging the EPA's carbon dioxide standards, others said they intend to intervene in the lawsuits in support of the rule.
“The legal issues, I think, are strong and fundamentally correct,” Iowa Attorney General Tom Miller told reporters Oct. 23.
New Hearing for Old Arguments
Challengers said they would be raising many of the same arguments they brought against the EPA's Clean Power Plan during prior litigation over the rule in its proposed stage.
“You've seen a number of these arguments before but they're very strong,” Morrisey said.
Petitioners will argue that the EPA cannot regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act because those facilities are already subject to hazardous air pollutant standards under Section 112. Additionally, petitioners are expected to argue that the standards require action beyond the fenceline of the regulated power plants themselves and that the EPA's rule violates the Constitution's 10th Amendment because it commandeers state resources to enforce a federal regulation (201 DEN B-1, 10/19/15).
Challengers had raised many of those same arguments when the proposed rule was challenged, but the D.C. Circuit dismissed those lawsuits as premature without addressing the merits of the arguments (In re Murray Energy Corp., 788 F.3d 3302015 BL 180996, D.C. Cir., 2015).
Michael J. Myers, assistant attorney general for Environmental Protection Bureau in the Office of New York State Attorney General Eric T. Schneiderman, told reporters the Clean Air Act was not intended to force the EPA to choose between regulating hazardous air pollutants or carbon dioxide emissions from power plants.
“We believe there's no merit to the argument that EPA had to make a choice between regulating toxic emission from power plants … or regulating greenhouse gases from those same power plants to address harms associated with climate change,” Myers said. “Those are two very different problems, and it doesn't make any sense Congress would have tasked EPA with choosing to deal with one of those problems but not the other. That's just not how the Clean Air Act is structured.”
Supreme Court Challenge Expected
However the D.C. Circuit litigation plays out, legal experts predicted at an Oct. 22 American Law Institute forum that the challenges would ultimately be elevated to the U.S. Supreme Court.
“Whoever is unhappy” with the D.C. Circuit's decision will petition the Supreme Court to take up the case, William Wehrum, partner at Hunton & Williams LLP, said.
Hunton & Williams represents the Utility Air Regulatory Group and other utilities in the lawsuits.
“I think there is a very high degree of likelihood that the court will pick it up,” he said at the event.
Although opponents of the rule have argued the EPA is barred from pursuing carbon trading programs after Congress failed to act, Roger Martella, a partner at Sidley Austin LLP who represents the Chamber of Commerce and other industry groups, said that argument could actually tip in the agency's favor.
“I think EPA begins the litigation with a significant advantage,” he said.
Martella said that if the court thinks climate change is an important issue and doesn't think Congress will act to address it, it may be more inclined to defer to the EPA's attempt to address the issue using the existing statutory language.
However, Martella also cautioned that the Supreme Court always looks at the precedent of its decision, which he said would be significant in defining the scope of EPA's regulatory authority.
“The court is going to be concerned about the precedent” that upholding the Clean Power Plan would set, he said.
Congress Readies Opposition
Senior congressional leaders in the House and Senate also wasted no time in announcing challenges to the newly finalized emissions limits for both new and existing power plants.
Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement lawmakers would introduce resolutions of disapproval under the Congressional Review Act the week of Oct. 26. Those challenges are unlikely to succeed, though lawmakers have previously told Bloomberg BNA they believe it is important to get Congress on the record about the rules (150 DEN A-15, 8/5/15).
Sens. Shelley Moore Capito (R-W.Va.) and Heidi Heitkamp (D-N.D.) will attempt to thwart the Clean Power Plan, while McConnell and Sen. Joe Manchin (D-W.Va.) will go after the carbon dioxide rules for future power plants.
“I have vowed to do all I can to fight back against this Administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle,” McConnell said in a statement.
McConnell's office said the leader is expected to schedule the challenges for Senate votes, but an aide told Bloomberg BNA Oct. 23 no timeframe has been scheduled to date.
Meanwhile, Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Committee's Energy and Power Subcommittee, said in a statement he'll introduce resolutions Oct. 26 seeking to block both rules as well.
Capito and Whitfield first told Bloomberg BNA of their plans to deploy the Congressional Review Act in October, though they face near-impossible odds at overcoming a sure veto from President Barack Obama. They had to wait until the rules' formal publication before they could introduce the challenges (196 DEN A-2, 10/9/15).
There has been just one successful challenge of a regulation—a final rule from President Bill Clinton's Labor Department setting ergonomic standards—in the statute's existence. An override of Obama's veto would require a two-thirds vote of both chambers.
It is not immediately clear what the pursuit of disapproval resolutions means for Capito's Affordable Reliable Electricity Now (ARENA) Act (S. 1324), which would immediately kill off the EPA regulations. Though that bill enjoys support within the Senate Republican conference, Capito previously told Bloomberg BNA securing floor time for the measure would be difficult.
“The majority of Congress does not support any effort to fund his climate agenda, and any associated promises made by this administration, whether through political or legal means, will be short-lived,” Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, said in a statement.
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EPA's Goffman, McCabe Hit The Road To Tout Clean Power Plan
Oct 26, 2015 | E&E Daily News
By Emily Holden and Rod Kuckro
Senior U.S. EPA officials will leave the nation's capital this week to make the case for the agency's rule to curb carbon dioxide emissions from power plants.
On Wednesday, Joe Goffman, senior counsel for EPA's Office of Air and Radiation, will be in San Diego at a conference sponsored by the Western Interstate Energy Board. The conference will also feature a roundtable of state regulators and a panel on the opportunities posed by trading carbon emission credits. E&E's Debra Kahn will report on the conference.
On Thursday, Janet McCabe, EPA's acting assistant administrator for air and radiation, will deliver the keynote address at a conference in Atlanta sponsored by the Southeast Energy Efficiency Alliance. EnergyWire's Kristi Swartz will be reporting from the event.
The costs and challenges of the Clean Power Plan will be the focus of a hearing Thursday by two House Science, Space and Technology subcommittees. Witnesses include National Economic Research Associates Economic Consulting's Anne Smith, Ceres President Mindy Lubber, and Bill Magness, senior vice president of the Electric Reliability Council of Texas. Greenwire's Jean Chemnick will be reporting.
On Friday, an American Bar Association Section of Environment, Energy and Resources conference in Chicago will feature a panel discussion on "Litigating the Administration's Clean Power Plan." E&ETV Managing Editor Monica Trauzzi will moderate.
Also this week, lawmakers in the House and Senate opposed to the EPA rule will introduce legislation to kill it. Were it to pass, a presidential veto would likely await. But should such legislation pass, it would serve the sponsors' goal of showing a divided U.S. government to negotiators trying to work out a global climate agreement in Paris later this fall.
EPA on Thursday sent its regional air directors a memorandum providing guidance on how to advise states interested in an extension of time to develop a compliance plan. A copy obtained by E&E can be found here.
In case you missed it: States launch a legal assault on the Clean Power Plan (Greenwire, Oct. 23). State air regulators try to balance the demands of multiple EPA air mandates with limited funding (Greenwire, Oct. 22). The Clean Power Plan is not a threat to the credit ratings of public power and electric cooperative utilities, S&P says (EnergyWire, Oct. 22). Former EPA Administrator William Reilly tells state regulators to "assume the rule will survive" (Greenwire, Oct. 21). An ex-DOE official decries the Clean Power Plan as a "forced" national renewable portfolio standard (E&ETV, Oct. 21). The Pennsylvania nuclear fleet sees the Clean Power Plan as a lifeline (ClimateWire, Oct. 20). State regulators and utilities see the benefit in mass-based trading (EnergyWire, Oct. 20). Texas grid operator says the EPA rule could lead to the closure of 4,000 megawatts of coal generation (EnergyWire, Oct. 19).
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Oct 25, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration is ramping up its efforts to get the American public behind its goal for a strong global climate change deal in Paris in December.
With weeks to go until negotiators meet to hash out a final international agreement, President Obama worked in recent days to make sure the country knows the importance of United States leadership in getting worldwide buy-in for a strong deal.
Republicans also ratcheted up their efforts to undermine Obama’s participation in the climate talks, arguing that the deal will amount to a treaty that requires — and will not receive — Senate ratification to take effect.
The GOP also wants to show world leaders that the Obama administration’s pledge for the deal — a 26 percent to 28 percent cut in the United States’ greenhouse gas emissions by 2025, compared with 2005 — is not possible, and Obama should not be trusted to live up to his promises.
Though the deal is still being negotiated, it’s shaping up to be a collection of individual pledges from countries to reduce greenhouse gas emissions, steps to increase clean energy production, financing for poor countries and other efforts. Chances are that the deal will not be legally binding, which allows Obama to argue that it is not a treaty that needs Senate ratification.
The stakes are high, both because of the expected effects of climate change and because Obama wants to avoid the mistakes of the 2009 Copenhagen climate talks, which ended with no deal.
The White House set the tone for the week Monday with the news that 81 companies, including some big names like Intel Corp. and Procter & Gamble Co., are on board with Obama’s goals for an ambitious, strong, long-lasting agreement in Paris.
“As we look at this major conference that we’re going to be having in Paris in just a few months, where we’ve already mobilized the international community, including China, to participate, I just want everybody to understand that American businesses want this to happen as well,” Obama said after meeting with five major CEOs, saying that they need a level playing field to thrive.
“If we’re able to establish those kinds of rules and that’s the goal that we’re setting forth in Paris, I have no doubt that these companies are going to excel,” he said. “And that’s going to mean jobs, businesses, and opportunity alongside cleaner air and a better environment.”
Getting big business buy-in on the Paris deal is an attempt by Obama to increase the legitimacy of his efforts and to show opponents who can benefit from the talks.
Later in the week, a senior administration official laid out the strategy and stakes for the talks.
The official also tried to set expectations for the deal, which is unlikely to achieve the goal of limiting global warming to 2 degrees Celsius above pre-industrial levels.
“It’s been clear for some time that, given the history of this issue, and the fits and starts of international negotiations, that the most important thing about a Paris agreement was going to be achieving durable, credible and universal agreement that reflected bottom-up country-delivered agreements,” the official said.
Republicans are fighting back and asserting what they see as the Senate’s rightful place in international treaties.
“Just like the Kyoto Protocol and the United Nations framework convention on climate change, any agreement that commits our nation to targets or timetables must go through the process established by the founders in our Constitution,” Sen. John Barrasso (R-Wyo.) said at a hearing he chaired in a Senate Foreign Relations Committee subpanel about the deal. “It must be submitted to the United States Senate for its advice and consent.”
“The president has made clear that he doesn’t see it that way, as was the case with the Iranian nuclear deal,” he said.
Barrasso later said that it’s important to tell foreign countries that Obama’s promises will not stand.
“The president can make promises, but it doesn’t necessarily carry the full force of the United States,” he said. “There are still court rulings to come. They may find that a number of things this administration does are not legal.”
Elliot Diringer, executive vice president at the Center for Climate and Energy Solutions, said Republicans are only reinforcing Obama’s strategy to stick with non-binding targets that don’t require Senate ratification.
“What came across in the hearing is that binding targets and timetables would require advice and consent from the Senate — and that the administration won’t agree to binding targets,” Diringer said. “The U.S. isn’t alone in that view, and I think the likeliest outcome in Paris is that targets won’t be binding.
Republicans’ work on the climate deal is far from over. Lawmakers including Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.) and House Energy and Commerce Committee energy and power subpanel chairman Ed Whitfield (R-Ky.) are considering going to Paris or sending staff to try to influence the talks.
“I don’t know if I’ll repeat what I’ve done several times before, which is to go over and be the bad guy, the one-man truth squad, and tell the truth, that they’re going to be lied to by the Obama administration,” Inhofe said.
Inhofe, a vocal climate change skeptic, has bragged that he traveled to the Copenhagen talks in 2009 and served as a “one-man truth squad” to derail the deal.
Whitfield said he wants to show negotiators that much of Obama’s promised emissions goal relies on regulations that Congress could weaken or overturn.
“We may send a group over to Paris, just to let them know that there’s another branch of government, in addition to the executive branch, on these issues,” he said.
Diringer said that Obama’s best bet would be to push for a deal that doesn’t require Senate input and is based on United States law, which has been the administration’s goal.
Meanwhile, Republicans in both chambers are launching new efforts to overturn the carbon limits for power plants through the Congressional Review Act.
Obama has vowed to veto any efforts to overturn the rule, the centerpiece of his climate change initiative. But even with his veto, the GOP hopes a vote could send a strong signal to the Paris negotiators that Obama’s environmental agenda has significant opposition domestically.
Congressional leaders have yet to say when the disapproval resolutions might get votes. But Republicans hope that they would come before or during the Paris talks. -
Wave Of Litigation Hits Obama Climate Rule
Oct 24, 2015 | The Hill - E2 Wire
By Devin Henry
The publication of the EPA's carbon rule for power plants has prompted a flurry of legal and legislative action, ushering in a lengthy battle over the future of the Obama administration's key climate change initiative.
More than two dozen states and a slew of interest groups and companies sued over the Clean Power Plan on Friday after it was published in the Federal Register.Leading state attorneys general called the rule an illegal expansion of federal power that they said will have a dramatic impact on electricity pricing, grid reliability and jobs.
On Capitol Hill, Republicans geared up for their own attempt at repealing the rule, perhaps forcing a veto from President Obama.
The Clean Power Plan is intended to cut carbon emissions from the power sector by 32 percent over the next 15 years by assigning carbon targets to states and asking them to find ways to hit them.
The rule, finalized in August, is the centerpiece of Obama’s climate agenda — but its sweeping scope and strict standards make it an especially contentious regulation.
Conservatives and coal-state lawmakers say the rule threatens to wipe out American jobs and hobble the economy.
The House has passed a bill undoing the Clean Power Plan and a Senate committee has done the same. But members had to wait until after the publication of the rule to unveil Congressional Review Act (CRA) challenges, something they intend to do as early as next week.
Senate Majority Leader Mitch McConnell (R-Ky.) and a bipartisan group of members will introduce CRA resolutions against the Clean Power Plan on Monday. McConnell is set to schedule a vote on the measure shortly afterward.
In a statement, McConnell repeated his long-held argument against the regulations: that they will hurt his state’s coal industry by forcing a transition to cleaner energy.
“Here’s what is lost in this administration’s crusade for ideological purity: the livelihoods of our coal miners and their families,” he said in a statement.
“I have vowed to do all I can to fight back against this administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle. The CRAs that we will file will allow Congress the ability to fight these anti-coal regulations.”
In the House, Rep. Ed Whitfield (R-Ky.) will also introduce a CRA challenge against the rules.
Whitfield acknowledged that lawmakers have little chance of undoing the power plant rules, given Obama’s veto power.
“If the president is going to veto it and not work with us, then there’s no other option except a lawsuit,” he said in an interview. “I don’t know if we can [override a veto] or not. I doubt it.”
On the legal front, more than half the states affected by the Clean Power Plan had filed lawsuits against it on Friday.
West Virginia Attorney General Patrick Morrisey, a Republican, said he hopes a federal court will block implementation of the rule while considering the broader legal case against it.
The states’ lawsuits are based around legal arguments against the rule that have been previewed in congressional committee hearings and industry analyses.
Morrisey said the EPA doesn’t have the power under to regulate carbon emissions from power plants in the way it has proposed. He equated the rule to a cap-and-trade system, something Congress considered but rejected during the early years of Obama’s presidency, and contended the EPA “cannot use the regulatory apparatus of the executive branch to push policies the Congress does not approve.”
“The EPA cannot do what it intends to do legally,” he said. “The EPA is trying to transform itself from an environmental regulatory authority to a central energy planning authority.”
By the end of the day Friday, industry groups such as the U.S. Chamber of Commerce, coal giant Murray Energy and the International Brotherhood of Boilermakers labor union had also filed lawsuits against the rule.
EPA officials and the Obama administration were quick to defend the rule on Friday. In a blog post detailing the Clean Power Plan’s legality and scientific basis, EPA Administrator Gina McCarthy said the regulations are on strong legal ground.
“The plan is fully consistent with the Clean Air Act, and relies on the same time-tested state-federal partnership that, since 1970, has reduced harmful air pollution by 70 percent, while the U.S. economy has tripled,” she wrote.
White House spokesman Eric Schultz said he wasn’t surprised to see Republican critics “rush to the courts to try and prevent something they weren’t able to do legislatively,” and dismissed their chances of success.
Obama is certain to get support from some outside sources. A group of 15 Democratic attorneys general led by New York’s Eric Schneiderman said Friday they would file motions supporting the rule come next week.
Green groups are primed to do the same. A quartet of environmental organizations told reporters on Thursday that they will move to defend the rule starting as soon as next week, and stand by it through what is expected to be years of litigation.
“The Clean Power Plan will have a powerful army of defenders as well, in this court battle,” said David Doniger, director and senior attorney for the climate and clean air program at the Natural Resources Defense Council.
“It’s one thing to sue, and it’s another thing to win. The Clean Power Plan rests on a strong legal foundation. Despite their rhetoric, the Clean Power Plan’s foes are unlikely to get a stay in the short run, or overturn the rule in the coming months and years.” Share on Facebook Share on Twitter
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EPA Testing New Way to Measure Air Pollution Emissions
Oct 26, 2015 | BNA Daily Environment Report
By Renee Schoof
The Environmental Protection Agency is testing a computer program that works with infrared pollution detection cameras to measure pollution emissions rates, Phillip Brooks, director of the agency's Air Enforcement Division of the Office of Enforcement and Compliance Assurance, said Oct. 23 at an American Law Institute program.
Brooks said EPA inspectors over the past five years have used infrared imaging cameras to detect pollution at various sites, including large internal floating roof tanks, a type of storage tank for petroleum products. “We are seeing substantial emissions,” and notices of violations have been issued, he said.
“What we have coming now are companies that are coming to answer the next interesting question, ‘What's the emission rate and can we get that without some huge exercise?' There are ways to quantify this right now, but they're pretty expensive and they're not easy for an inspector,” Brooks said. “The newest whizbang basically is a computer program and tablet that plugs into the IR [infrared] camera, and we're testing it right now because the manufacturer claims it can give you reasonably accurate emission rates. We'll see.”
Brooks said that the use of technology is the key to what is changing in enforcement. While traditional inspection tours and demands for documentation will continue, “this is a part of enforcement that's going to grow and that's because the technology is moving very, very quickly,” he said.
In September, the EPA issued a compliance alert on emissions from tanks and other storage containers at oil and natural gas production facilities. The document addressed ways to comply with regulations by limiting emissions of volatile organic compounds, which contribute to the formation of ground-level ozone; hazardous air pollutants such as benzene, a carcinogen; and methane, a potent greenhouse gas.
The document “suggests we might show up, and what we'll be looking for, and it tells you it will be very hard to say ‘We didn't know,' because this will be Exhibit A if we prosecute,” Brooks said.
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House Republicans Seek to Block Ozone Rule
Oct 26, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
House Republicans have introduced a joint resolution of disapproval over the Environmental Protection Agency's recently revised national ozone standards, the first step in a Congressional Review Act challenge to the rule.
The resolution, introduced Oct. 22 by Rep. Jackie Walorski (R-Ind.), would express congressional disapproval of the ozone rule and establish that the rule “shall have no force or effect.”
Walorski, in a speech on the House floor, said the EPA's decision to set the ozone standards (RIN 2060-AP38) at a level of 70 parts per billion would be “one of the most crippling” regulations in history. The EPA estimated the 70 ppb ozone standards, which were signed Oct. 1 and will be published Oct. 26, would cost as much as $1.4 billion annually in 2025.
“We should focus on policies that grow the economy, protect our environment, and not burying job creators under red tape and mandates,” Walorski said. “It's time to end the EPA's assault on business.”
The Congressional Review Act allows for expedited consideration of a joint resolution of disapproval, including a provision that prohibits the resolution from being amended or filibustered in the Senate. The Congressional Review Act has only been successfully used to block a regulation once, when Congress acted during the Clinton administration to block a Labor Department regulation on ergonomic standards.
Congressional Republicans have identified the Congressional Review Act as an avenue to address several high-profile EPA regulations issued under President Barack Obama, including the Clean Power Plan and the Clean Water Rule. An aide to Senate Majority Leader Mitch McConnell (R-Ky.) told Bloomberg BNA that resolutions to block the EPA's carbon dioxide emissions standards for new and existing power plants would be released during the week of Oct. 26.
Walorski's ozone resolution (H.J. Res. 70) was co-sponsored by Reps. Luke Messer (R-Ind.), Larry Bucshon (R-Ind.), Todd Rokita (R-Ind.) and Glenn Grothman (R-Wis.).
EPA Attorney Skeptical of Plan
Lorie Schmidt, associate general counsel at EPA, said during an Oct. 15 Environmental Law Institute webinar that a Congressional Review Act challenge was “the most likely vehicle” for Congress to target the ozone standards.
While the Congressional Review Act allows for expedited consideration in Congress, the resolution would still need to be signed by the president in order to become law, Schmidt said. She was skeptical an effort to block the ozone standards would gain the support of two-thirds of each chamber of Congress, which would be necessary to override a veto.
“I think it would be quite difficult to get enough votes,” she said. “I don't see how you override a veto on that.”
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Haze Deadline Change Would Allow Coordinated Planning
Oct 26, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Planned revisions to the Environmental Protection Agency's regional haze regulations would allow states to coordinate their planning with compliance efforts under other air rules, an EPA attorney said.
The EPA is working on a proposed rule (RIN 2060-AS55) that would extend the deadline for states to submit a revised regional haze plan from July 31, 2018, to July 31, 2021. That proposal is scheduled to be released by December, according to the agency's spring 2015 regulatory agenda.
The delayed deadline will allow states to factor in implementation of the Clean Power Plan and the recently revised ozone standards of 70 parts per billion into their regional haze planning, Matthew Marks, an attorney in the EPA's Office of General Counsel, said.
“The agency thinks it makes sense to allow the states to coordinate and do that type of planning together,” Marks said during an Oct. 22 American Law Institute event. “This will allow states to coordinate their planning.”
The EPA's current regional haze regulation requires states to complete revised haze plans for meeting visibility goals in 2018 and every 10 years thereafter. The proposal to push back the planning deadline from 2018 to 2021 would not effect the date for submitting future revisions in 2028 and beyond, according to the agency.
William Bumpers, a partner at Baker Botts LLP, said the two-year delay will be “very helpful” because very few states would be able to submit their revised state plan by 2018. Only about half of the best available retrofit technology (BART) requirements under the regional haze rule will be implemented by 2018, Bumpers said.
“This has been a program that has been beset by problems and delays,” Bumpers said during the ALI meeting.
The regional haze program requires states to develop plans to address pollution that affects visibility in federally-protected parks and wilderness areas, which are known as Class I areas. The regional haze rule requires the installation of BART at large stationary sources that emit air pollution that may be reasonably anticipated to contribute to visibility impairment in Class I areas.
Marks said the EPA's upcoming proposed rule also will include “some possible tweaks” to the form and timing of progress reports that states must submit under the regional haze program every five years. The EPA also plans to release new guidance to help states conduct a reasonable planning analysis under the regional haze program, Marks said.
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