ACC AM Oct 27

Industry and Association News

1. (ACC Mentioned) A. Duie Pyle Receives Package Carrier Safety Award for Fifth Straight Year

   Oct 26, 2015 | Market Wired

   A. Duie Pyle (Pyle), the Northeast's premier provider of asset and non-asset based transportation and supply chain solutions, has been awarded the 2014-2015 "Menlo Worldwide Logistics Package Carrier Safety Award. It is the 5th year in a row Pyle has won this award which is designed to recognize the carrier that provided excellence...

Chemical Management News

2. (ACC Mentioned) Industry Opposes Possible California Hazard Prioritisations

   Oct 27, 2015 | Chemical Watch

   Industry comments, submitted to California's Developmental and Reproductive Toxicant Identification Committee (Dartic), has called on the body not to recommend prioritisation of metallic nickel, pentachlorophenol, PFOA or PFOS for development of hazard identification materials (CW 14 October 2015).
3. Obama Backs Conservation Fund Seen as TSCA Bill Hurdle

   Oct 27, 2015 | BNA Daily Environment Report

   By Anthony Adragna
   
   
   President Barack Obama has thrown his weight behind reauthorizing and fully funding the Land and Water Conservation Fund, the expiration of which at the end of September has blocked a Senate vote on a revamp of the nation's primary chemical law.
4. Obama Urges Congress To Pass On LWCF Measure Blocking TSCA Bill

   Oct 26, 2015 | InsideEPA

   By Bridget DiCosmo
   
   
   President Obama is urging Senate Republicans to quickly come to an agreement to pass a measure to reauthorize the Land & Water Conservation Fund (LWCF), an issue which is currently blocking any floor vote on Toxic Substances Control Act (TSCA) legislation, even though the TSCA bill has broad bipartisan backing and a commitment...
5. Video: Sen. Carper Says Federal Workers ‘Deserve Better’ From Congress

   Oct 26, 2015 | BNA Energy & Environment Blog

   Sen. Tom Carper (D-Del.) spoke with Bloomberg BNA’s Anthony Adragna on camera why federal workers “deserve better” than a series of continuing resolutions funding the government, about the latest on legislation to revamp the nation’s primary chemical law and prospects for a long-term highway bill this fall.
6. New Web Portal Aims to Connect Green Chemists

   Oct 27, 2015 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   A green chemistry Web portal somewhat analogous to “a match.com for nerds” aims to hook up companies that want sustainable chemicals with researchers that can help them find what they need, John Frazier, a Green Chemistry & Commerce Council (GC3) board member, said Oct. 26.
7. Minnesota’s Flame Retardant Victory and State Preemption

   | Safer Chemicals Healthy Families

   By Kathleen Schüler
   
   
   In May of 2015, the Minnesota Legislature quietly passed the nation’s most comprehensive flame retardant product ban to date. The Firefighter and Children Health Protection Act of 2015 bans four toxic flame retardants in upholstered furniture and children’s products effective July 2018. Sure, 2018 may seem far off, but the extended...
8. Commission Proposes 'Fast-Track' Restrictions On CMRS In Textiles

   Oct 27, 2015 | Chemical Watch

   By Vanessa Zainzinger
   
   
   The European Commission has published a preliminary list of category 1A and 1B carcinogenic, mutagenic or reprotoxic (CMR) substances it proposes to restrict for use in textile consumer articles. The list contains 291 chemicals potentially present in textile articles and clothing, including phthalates, flame retardants and pigments.

Chemical Security News

9. (ACC Mentioned) Chemical Industry Self-Policing Called into Question, Government Oversight Lax

   Oct 27, 2015 | All Gov

   By Steve Straehley
   
   
   The chemical industry claims that government regulation of it is unnecessary; that its voluntary standards are sufficient to keep its plants safe. But a new report (pdf) shows that that’s not the case. The Center for Effective Government took a look at chemical plants in the United States and found that they’re endangering workers and ...
10. Barton Solvents to Pay $1M EPA Settlement, Change Processes

    Oct 26, 2015 | AP (in The New York Times)

    An Iowa-based company that mixes and transports chemicals for customers in the printing, coating, and cleaning industries has agreed to pay $1.1 million to settle federal environmental violations and ensure safety at six plants in Iowa, Kansas and Wisconsin.

Transportation News

11. House to Consider Highway Program Extension Bill

    Oct 27, 2015 | BNA Daily Environment Report

    The House plans to consider a bill by the end of October to extend authorization through Nov. 20 for surface transportation programs, including those focused on hazardous materials transportation. The Surface Transportation Extension Act of 2015 (H.R. 3819) includes a three-year extension for railroads to install positive train control...
12. Bill Introduced to Expedite Pipeline Inspector Hiring

    Oct 27, 2015 | BNA Daily Environment Report

    A bipartisan group of congressmen introduced a bill to allow the nation's pipeline safety regulator to hire inspectors more quickly and efficiently. The bill (H.R. 3823), which a news release said was introduced Oct. 22 by senior House Energy and Commerce Committee member Gene Green (D-Texas), would give the Pipeline and Hazardous Materials...
13. Railroads Say Disruptions Loom if Safety-System Deadline Isn’t Extended

    Oct 26, 2015 | The Wall Street Journal

    By Laura Stevens and Steven Norton
    
    
    Railroads are amplifying warnings that the U.S. transportation network would grind to a halt at the start of the new year if Congress makes them stick to a year-end deadline to install a new safety system. The major freight railroads, Amtrak and other industry groups say disruption of the economy would ensue...
14. Congress Nears Deal on Its Other Crisis: Highway Funding

    Oct 27, 2015 | The National Journal

    By Jason Plautz
    
    
    While party lead­ers huddle with the White House to try to deal with the na­tion’s press­ing fisc­al prob­lems, Con­gress is inch­ing closer to break­ing an­oth­er crisis: the loom­ing high­way-spend­ing cliff. Fed­er­al trans­port­a­tion spend­ing is set to ex­pire at the end of the week, but the House could vote as early as Tues­day on a short-term ex­ten­sion...
15. Pair of Houston-Area Reps Push For More Pipeline Inspectors

    Oct 26, 2015 | Fuel Fix

    By Jennifer A. Dlouhy
    
    
    Texas lawmakers are trying to kickstart government hiring of more federal inspectors to watch over the 2.6 million miles of pipelines that carry oil and other fuels across the United States. The legislators, including Houston’s Gene Green, a Democrat, and Republican Pete Olson of Sugar Land, are pushing legislation that would give the agency...

Energy and Environment News

16. (ACC Mentioned) Industry Attacks Clean Power Plan in Court

    Oct 26, 2015 | Environmental Leader

    More than 20 businesses and industry organizations have filed lawsuits to overturn the Clean Power Plan. Immediately after the EPA published the carbon rule for existing power plants last Friday, 24 states sues to stop the law, which requires existing coal-burning power plants must cut carbon emissions by 32 percent by 2030...
17. Oklahoma Earthquakes Called National Security Threat

    Oct 27, 2015 | BNA Daily Environment Report

    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...
18. Court Consolidates 20 Suits Over EPA Carbon Rule

    Oct 26, 2015 | PoliticoPro - Whiteboard

    By Alex Guillén
    
    
    The D.C. Circuit Court of Appeals has consolidated 20 separate lawsuits over EPA's Clean Power Plan into one case. The suits will move forward under the umbrella of 15-1363, West Virginia et al. v. EPA, the primary state suit over the rule. Oklahoma and North Dakota filed separate suits over the rule...
19. House CRA Resolutions Introduced; Senate Versions Expected

    Oct 27, 2015 | E&E Daily News

    By Jean Chemnick
    
    
    Rep. Ed Whitfield (R-Ky.) introduced two resolutions yesterday aimed at using the Congressional Review Act to scuttle U.S. EPA rules for new and existing power plant carbon. The chairman of the House Energy and Commerce Subcommittee on Energy and Power said in a statement that his measures would restrain an EPA that...
20. GOP Rep: Congress Should Focus More On Climate Change

    Oct 26, 2015 | The Hill - E2 Wire

    By Devin Henry
    
    
    A Republican lawmaker is pushing Congress to focus more on climate change, calling it “one of the major challenges of our time." In a Miami Herald op-ed, Rep. Carlos Curbelo (Fla.) said lawmakers need to a better job of focusing on ways to cut carbon emissions, invest in clean energy and combat climate change.
21. Ayotte Bucks Republicans on EPA Carbon Rules

    Oct 27, 2015 | BNA Daily Environment Report

    By Andrew Childers and Anthony Adragna
    
    
    One Senate Republican has come out in favor of the Environmental Protection Agency's efforts to curb carbon dioxide emissions from power plants, which could stymie efforts to block the rules using the Congressional Review Act. “I have decided to support the Clean Power Plan to address climate change through clean energy solutions ...
22. Greens Claim Vindication As Ayotte Embraces Climate Rule

    Oct 26, 2015 | PoliticoPro

    By Darren Goode
    
    
    Environmentalists say Sen. Kelly Ayotte's decision to back President Barack Obama's landmark climate rule vindicates their view that support for such policies will be a winning issue in the general election next year. Ayotte on Sunday became the first Senate Republican to embrace the Clean Power Plan...
23. Facing High Bar, Critics Emphasize ESPS' Immediate Harm In Seeking Stay

    Oct 26, 2015 | InsideEPA

    By Dawn Reeves
    
    
    Opponents of EPA's greenhouse gas rule for existing power plants, who filed motions to stay the measure within hours of its promulgation, are emphasizing the rule's immediate and “irreparable” harm, an effort intended to overcome likely agency arguments that the rule's lengthy compliance and other deadlines will obviate the need for a stay.

Full Text of Stories Below

Industry and Association News

1. (ACC Mentioned) A. Duie Pyle Receives Package Carrier Safety Award for Fifth Straight Year

   Oct 26, 2015 | Market Wired

   A. Duie Pyle (Pyle), the Northeast's premier provider of asset and non-asset based transportation and supply chain solutions, has been awarded the 2014-2015 "Menlo Worldwide Logistics Package Carrier Safety Award. It is the 5th year in a row Pyle has won this award which is designed to recognize the carrier that provided excellence in safe product handling for The Dow Chemical Company. To qualify, Pyle had to achieve a score of zero in serious and moderate incidents and incur no more than one minor incident over the course of the year. Pyle was also chosen based on key areas of safety reporting including on-time performance, EDI compliance and emergency response. 

   "We are once again honored to receive this prestigious award recognizing our safety compliance and service performance for The Dow Chemical Company," said Tom Walker, A. Duie Pyle's director of chemical markets and compliance. "As the only Northeast regional carrier participating in the American Chemistry Council's Responsible Care program we are proud to serve our customers with the most intensive safety and risk management processes in the business."

   A family-owned and operated business for more than 91 years, A. Duie Pyle provides a range of integrated transportation and distribution services supported by 24 transportation service centers and 9 warehouses strategically located throughout the Northeast region. Through its Customized Solutions Group, Pyle provides a variety of asset and non-asset based services including Custom Dedicated fleet operations, integrated Warehousing & Distribution services through 2.2 million square feet of public and contract warehousing space, and specialized asset and non-asset based truckload services through its Truckload Solutions.
   

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Chemical Management News

2. (ACC Mentioned) Industry Opposes Possible California Hazard Prioritisations

   Oct 27, 2015 | Chemical Watch

   Industry comments, submitted to California's Developmental and Reproductive Toxicant Identification Committee (Dartic), has called on the body not to recommend prioritisation of metallic nickel, pentachlorophenol, PFOA or PFOS for development of hazard identification materials (CW 14 October 2015).

   Dartic, which serves as the state's qualified experts on reproductive toxicity determinations for Proposition 65, will advise the Office of Environmental Health Hazard Assessment (Oehha) at a 9 November meeting, which substances should be considered for prioritisation.

   The preparation of hazard identification materials could serve as a precursor to a substance's being listed on Prop 65 as reproductive or developmental toxicants.

   Substances to be reviewed are: nickel;pentachlorophenol (PCP);perfluorooctanoic acid (PFOA);perfluorooctane sulfonate (PFOS); andtetrachloroethylene.

   Nickel

   The Nickel Producers Environmental Research Association (NiPERA) – a division of the global trade group, Nickel Institute – said that consumer exposure to metallic nickel, via inhalation or oral exposure, is “negligible or non-existent”. It also said that dermal absorption is “very low”, such that “the contribution of this exposure route to systemic blood nickel levels is essentially undetectable.”

   NiPERA said that current epidemiological data does not support the priortisation of metallic nickel for the development of hazard identification materials.

   Its comments were endorsed by a coalition of 15 trade groups, which included the American Chemistry Council (ACC), the Motor & Equipment Manufacturers Association (MEMA) and Plumbing Manufacturers International. The group advocated the substance be assigned a low priority.

   PCP

   The Western Wood Preservers Institute (WWPI) said, in comments, that PCP should not be considered for listing under Proposition 65 because the epidemiological data screen requirements, stipulated under Oehha's process, are not met. “None of the identified studies are of adequate quality or provide sufficient evidence to demonstrate that PCP is the cause of adverse developmental or reproductive effects in people,” it said.

   The pentachlorophenol task force, representing the US and Canadian registrant of PCP, agreed with the WWPI comments.

   PFOA and PFOS

   A coalition of three NGOs – the Natural Resource Defense Council, the Center for Environmental Health and the Environmental Working Group – submitted comments, calling on Dartic to prioritise PFOA and PFOS for development of hazard identification materials.

   “The scientific evidence linking these chemicals to adverse human health effects has grown substantially”, since Oehha's last review of the substances in 2007, said the coalition of NGOs.

   But 3M Company said, in separate comment letters, that PFOA and PFOS should not be designated as high priorities for further evaluation, because the substances are due to be phased out fully under the EPA's global stewardship programmes by the end of 2015.

   The perfluorooctanyl chemistries manufacturer added that since this phase-out began, there has been an “ unmistakable downward trend” in PFOA and PFOS residues in human blood, and the substance do “not warrant the extensive resources necessary for the preparation of hazard identification materials”.

   No comments were submitted with regards to tetrachloroethylene, which is listed on Prop 65 as a carcinogen.

    

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3. Obama Backs Conservation Fund Seen as TSCA Bill Hurdle

   Oct 27, 2015 | BNA Daily Environment Report

   By Anthony Adragna

   President Barack Obama has thrown his weight behind reauthorizing and fully funding the Land and Water Conservation Fund, the expiration of which at the end of September has blocked a Senate vote on a revamp of the nation's primary chemical law.

   “[The fund] has bipartisan support in both the House and the Senate,” Obama said in his weekly address. “Republicans in Congress should reauthorize and fully fund the Land and Water Conservation Fund without delay.”

   Republican Sens. Richard Burr (N.C.) and Kelly Ayotte (N.H.) continue to impede a floor vote on the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), which would reform the Toxic Substances Control Act, until they get a vote to reauthorize the fund that uses oil and gas royalties for recreation and conservation projects (205 DEN A-2, 10/23/15).

   The Land and Water Conservation Fund enjoys significant bipartisan support in Congress but some other Republicans, led by Sens. Mike Lee (Utah) and Rep. Rob Bishop (Utah.), have refused to allow a straight reauthorization without significant changes to the program.

   Obama has asked lawmakers to appropriate the statutory maximum of $900 million for the fund, but Congress has hit that cap just twice in its history.

   “For more than half a century, this fund has protected more than 5 million acres of land,” the president said. “Nearly every single county in America has benefited from this program.”

   ‘Great Momentum' for Climate Deal

   Beyond discussion of the conservation program, Obama also said the U.S. had “great momentum” for striking an international deal to address climate change in Paris this December.

   “Because America is leading by example, 150 countries, representing over 85% of global emissions, have now laid out plans to reduce their levels of the harmful carbon pollution that warms our planet,” Obama said. “And it gives us great momentum going into Paris this December, where the world needs to come together and build on these individual commitments with an ambitious, long-term agreement to protect this Earth for our kids.”

   Climate negotiators left the final round of United Nations talks before Paris with what the UN's top climate official called a “balanced and manageable” negotiating text for an agreement, but some 1,500 questions remain unanswered (206 DEN A-17, 10/26/15).

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4. Obama Urges Congress To Pass On LWCF Measure Blocking TSCA Bill

   Oct 26, 2015 | InsideEPA

   By Bridget DiCosmo

   President Obama is urging Senate Republicans to quickly come to an agreement to pass a measure to reauthorize the Land & Water Conservation Fund (LWCF), an issue which is currently blocking any floor vote on Toxic Substances Control Act (TSCA) legislation, even though the TSCA bill has broad bipartisan backing and a commitment for a floor vote with only one amendment to consider.

   While Obama's remarks, delivered in his weekly address Oct. 24, do not directly address TSCA reform, an ongoing fight between Senate Republicans about whether to bring the LWCF measure to an up-or-down vote as opposed to reform measures that would address a major backlog for maintenance on federal land is preventing a vote on the TSCA bill.

   “This month, even as Republicans in Congress barely managed to keep our government open, they shut down something called the Land and Water Conservation Fund,” Obama said in his address. “For more than half a century, this fund has protected more than 5 million acres of land -- from playgrounds to parks to priceless landscapes -- all without costing taxpayers a dime.”

   Noting that reauthorizing the fund has bipartisan support in both the House and the Senate, Obama said GOP lawmakers should “reauthorize and fully fund” the LWCF “without delay.”

   The LWCF helps acquire and maintain park lands and is funded by companies drilling offshore for oil and gas. At the root of the holdup over reauthorization is a disagreement between Republican Sens. Richard Burr (NC), Kelly Ayotte (NH) and Mike Lee (UT).

   Burr and Ayotte had been planning on offering an LWCF reauthorization measure as a rider to the TSCA bill once it hit the Senate floor. But Lee opposes reauthorization to the fund without changes to how it operates, and the stalemate has had the collateral impact of blocking the TSCA bill.

   Ayotte, Lee and Burr are supporters of the TSCA reform legislation, but their push on the LWCF has created major uncertainty about when a vote could take place on either the fund or the toxics bill.

   In an Oct. 21 pact, senators agreed to “hotline” the TSCA bill, S. 697, and move the measure to a floor vote with one amendment to the bill planned by Sen. James Inhofe (R-OK) that would substitute an earlier version of the bill with a revised measure that prompted Democratic Sens. Ed Markey (MA) and Richard Durbin (IL) to support the legislation. S. 697 now has at least 60 declared supporters, enough to overcome a potential filibuster threat.

   Also on Oct. 21, Sens. Tom Udall (D-LA) and David Vitter (R-LA) -- the lead authors of the TSCA bill -- asked for unanimous consent to bring the bill to the floor, after both sides of the aisle agreed to a hotline that will allow the legislation to move without amendments, congressional sources say. “We have cleared this legislation on the Democratic side of the aisle with a short time agreement,” Udall said, according to a transcript of his floor remarks. “My understanding is that there is nearly unanimous sign off on the Republican side as well.”

   Udall and Vitter sought unanimous consent to move S. 697, prompting Burr to then seek adding an amendment to reauthorize the LWCF. Lee objected to this, and Burr then objected to the unanimous consent request from Udall and Vitter -- the end result being another roadblock to the TSCA bill getting a vote. Lee objects to reauthorizing the fund, which expired Sept. 30, without adding language that would address a massive backlog of maintenance projects on public lands, a spokesman from Lee's office says. Asked about the president's Oct. 24 address, the spokesman says, “The federal government currently has $20 billion maintenance backlog on the over 600 million acres of land it already owns in the United States. Why is the federal government trying to acquire more land when it can’t even take care of the land it already has?”

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5. Video: Sen. Carper Says Federal Workers ‘Deserve Better’ From Congress

   Oct 26, 2015 | BNA Energy & Environment Blog

   Sen. Tom Carper (D-Del.) spoke with Bloomberg BNA’s Anthony Adragna on camera why federal workers “deserve better” than a series of continuing resolutions funding the government, about the latest on legislation to revamp the nation’s primary chemical law and prospects for a long-term highway bill this fall. 

   Here are some highlights: 

   Slamming Congress for continuing to rely on short-term funding measures that harm federal employee morale: “That’s hugely wasteful and, at the end of the day, it’s demoralizing for the folks that are doing the work. We jerk them around. It’s not fair to the employees. We need to do our job.”
   On chemical safety reform. Legislation (S. 697) reforming the Toxic Substances Control Act has been blocked for a month by two Republican senators seeking a vote on an unrelated measure: “I talked to Mitch McConnell about it … and I said, ‘What can I do to help?’ And he said, basically, ‘This is on our side—the Republican side. We’ll figure it out. Just hang in there.’”

   Criticizing how Congress has approached funding the nation’s highway projects in recent years: “What we’ve done too often—12 or 13 times in the last five years—we’ve just craft together just bad ideas that have nothing to do with transportation.”

   Urging colleagues to consider his approach of raising the nation’s gas tax over several years as a way to bring stability to the nation’s transportation sector: “Some people say this is a long shot, but this is a shot worth taking.”
   

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6. New Web Portal Aims to Connect Green Chemists

   Oct 27, 2015 | BNA Daily Environment Report

   By Pat Rizzuto

   A green chemistry Web portal somewhat analogous to “a match.com for nerds” aims to hook up companies that want sustainable chemicals with researchers that can help them find what they need, John Frazier, a Green Chemistry & Commerce Council (GC3) board member, said Oct. 26.

   In a related development, the council has developed training programs to help companies educate their employees and supply chains in various aspects of green chemistry, GC3 Director Joel Tickner said.

   Frazier and Tickner were among the speakers on a webinar discussing the Green Chemistry Innovation Portal, developed by the GC3 and the American Chemical Society's Green Chemistry Institute, and related efforts to spur sustainable chemicals.

   The portal consists of two parts: (1) a map that identifies chemical and other manufacturers, research institutes, government agencies and nongovernmental organizations addressing green chemistry in some way, and (2) an “innovation forum” where anyone can post questions, showcase products and seek new staff.

   The map is largely based on governments, companies and organizations in North America, but it will be expanded to encompass more international components, said Anna Ivanova, a chemist working at the GC3.

   ‘Chickens Talking to Ducks.’

   A key problem is that chemists and other staff working within the same company can remain very separate, said Frazier, a former senior director of considered chemistry at Nike.

   A company's chemists may develop a new, greener chemical with the intention of solving a problem, yet the chemical doesn't begin to perform the way the company's engineers needed, he said. It's like “chickens talking to ducks,” Frazier said.

   The portal aims to be a connecting tool that taps into a much wider audience of companies, businesses and other groups that may be able to reduce or eliminate a particular chemistry or solve another problem, he said.

   Tom McKeag, director of the University of California-Berkeley Center for Green Chemistry, said academic researchers are interested in the portal as a way of broadening the connections among parties interested in green chemistry.

   It also may help them identify partners with whom they can develop a chemical that would be more sustainable than those it would replace, he said.

   Innovators Forum Set Nov. 10

   The Green Chemistry center will host an “Ask the Innovators” forum on Nov. 10 where parties can send in questions, he said. Questions can begin to be submitted as of Nov. 3 at http://www.acs.org/gcforum, McKeag said.

   Tickner said GC3 also has developed a range of educational tools including webinars and in-person training programs for businesses.

   For example, a company in a particular sector could be apprized of specific tools and applications of green chemistry relevant to its needs, according to the GC3 training center website.

   The GC3 is a business-to-business forum that advances the application of green chemistry across supply chains, according to the Web portal site.

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7. Minnesota’s Flame Retardant Victory and State Preemption

   | Safer Chemicals Healthy Families

   By Kathleen Schüler

   In May of 2015, the Minnesota Legislature quietly passed the nation’s most comprehensive flame retardant product ban to date. The Firefighter and Children Health Protection Act of 2015 bans four toxic flame retardants in upholstered furniture and children’s products effective July 2018. Sure, 2018 may seem far off, but the extended implementation date will allow manufacturers plenty of time to get these chemicals out of their products. The Minnesota Professional Fire Fighters, the Healthy Legacy coalition, and legislative leaders worked hard to get these four flame retardants out of products that expose families to unnecessary and ineffective toxic chemicals in their own homes and expose firefighters to carcinogenic byproducts when they enter burning buildings with these products in them.

   Minnesota’s law will not only protect the health of Minnesota families and firefighters, but it will help move the marketplace to phase out these problem chemicals across the country. It is clear that state chemical laws drive the safety of products nationwide and market-wide. However, a current Senate proposal to reform regulation of chemicals at the federal level puts future state laws like this at risk.

   Flaws in the Senate bill

   The U.S. Senate is about to take up S. 697, Senators Udall and Vitter’s bill to reform the long outdated and ineffective Toxic Substances Control Act (TSCA). There seems to be unanimous agreement that a TSCA update is long overdue and states across the country welcome the opportunity to fix its many flaws. The Senate bill fixes many of the flaws in current TSCA, including strengthening EPA’s chemical testing authority, removing the “least burdensome” criterion for restricting chemicals, and requiring industry fees to pay for some of the program costs, among other things. No bill is perfect, but S. 697 has a few key flaws, one of which is fatal for states and for public health. It significantly curtails the ability of states to restrict chemicals and creates a regulatory gap during which no action can be taken to protect the public’s health.It significantly curtails the ability of states to restrict chemicals and creates a regulatory gap during which no action can be taken to protect the public’s health.

   As written, S. 697 would preempt Minnesota and other states from taking action on a chemical when EPA begins reviewing a chemical, a review that could take up to 13 years, creating a regulatory void during which no state would be permitted to take action on the chemical under review. On the other hand, H.R. 2576, which passed nearly unanimously in the House, does not preempt state action until EPA makes a final determination on a chemical. The more reasonable House position on preemption supports public health protections and is therefore, in my opinion, better public policy.

   Since both bills require that EPA review a paltry number of chemicals each year — 5 in the Senate bill and 10 in the House bill — we must preserve state authority to take action on chemicals of concern when EPA has not yet taken action. It will take the work of both the state and federal governments to tackle the thousands of chemicals of concern. State action on chemicals can and should continue to complement federal action. As a future conference committee considers both bills, I urge Congress to adopt the House position on preemption.

   Families and firefighters in Minnesota and across the country are counting on us to protect their health. Let’s not let them down.

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8. Commission Proposes 'Fast-Track' Restrictions On CMRS In Textiles

   Oct 27, 2015 | Chemical Watch

   By Vanessa Zainzinger

   The European Commission has published a preliminary list of category 1A and 1B carcinogenic, mutagenic or reprotoxic (CMR) substances it proposes to restrict for use in textile consumer articles.

   The list contains 291 chemicals potentially present in textile articles and clothing, including phthalates, flame retardants and pigments. It was jointly put together by the Commission, Echa and member state competent authorities.

   The restrictions would be sped up with the “fast-track” procedure, outlined in REACH Article 68(2). This allows the Commission to avoid lengthy procedures usually involved in the restriction process, such as the preparation of an Annex XV dossier or opinions by Echa’s Risk Assessment Committee (Rac) and Socio-economic Analysis Committee (Seac).

   The Article 68(2) procedure has been used before to restrict the presence of polycyclic aromatic hydrocarbons or PAHs in consumer articles (CW 8 November 2012). But the case of CMRs in textiles is different because it concerns a category of articles.

   The Commission says it intends to use Article 68(2) to target category 1A and 1B CMR substances in several categories of consumer articles, as described in a 2014 paper released by the Competent Authorities for REACH and CLP (Caracal).

   Textiles were selected as a first test case because consumers are likely to be exposed, over long periods of time, to multiple CMR substances from articles such as clothing, curtains, carpets and towels, according to the executive.

   A public consultation on the list is open until 22 January. The regulators are looking for information on: potential socio-economic impacts of restrictions;enforceability;the presence, concentration and function of the identified CMR substances in textiles; and the availability of alternatives.

   Once finalised, the list will be added as an appendix to Annex XVII to REACH and could be updated regularly, the Commission has said.

   The Swedish Chemicals Agency (Kemi), which has previously been vocal that REACH Article 68(2) should be applicable to all SVHCs in consumer articles, not just category 1A and 1B CMRs, says it is hopeful this proposal will lead the way to similar fast-track restrictions in other article groups, such as construction materials (GBB March 2015).

   Concerning the proposed list, Kemi said that functional chemicals, such as dyes that are added to the textile to contribute to the design or give the final article certain properties, should be prioritised.

   NGO ChemSec called the proposal “a logical move”.

   “The textile industry has been regarded as a priority sector in terms of chemicals because of the high likelihood of exposure of consumers to hazardous substances present in those articles,” said ChemSec policy adviser Frida Hök in a statement.

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Chemical Security News

9. (ACC Mentioned) Chemical Industry Self-Policing Called into Question, Government Oversight Lax

   Oct 27, 2015 | All Gov

   By Steve Straehley

   The chemical industry claims that government regulation of it is unnecessary; that its voluntary standards are sufficient to keep its plants safe. But a new report (pdf) shows that that’s not the case.

   The Center for Effective Government took a look at chemical plants in the United States and found that they’re endangering workers and the environment alike. What’s more, the chemical industry is not regulating itself despite its claims to the contrary.

   “Every two days, there is a reportable leak or explosion at a U.S. chemical plant,” Katherine McFate, president and CEO of the Center for Effective Government, said in a release. “But the chemical industry keeps telling us companies can regulate themselves and no new oversight is needed.”

   The American Chemical Council (ACC), the industry’s lobbying group, sponsors a program called Responsible Care, which is supposed to hold its members to certain safety standards. But in its investigation, the Center for Effective Government found that only 42% of active facilities manufacturing chemicals were inspected in the last three to five years and of those that were inspected, 25% had serious workplace safety and environmental violations.

   Government oversight of the industry has been lax, according to the report. Part of that is due to the lack of teeth in the 1976 Toxic Substances Control Act (pdf) (TSCA), which was passed due to the increasing amounts of dangerous and untested chemicals used in commercial product production and processes. Although the law gave the Environmental Protection Agency (EPA) authority to ban chemicals that endanger humans, “TSCA does not make public health its overriding focus,” claims the report.

   “Besides creating a gold mine for industry lawyers, the badly written law puts a huge burden on government scientists and experts to ‘prove’ a substance is dangerous,” the report goes on to say. “The result? EPA has required testing of only 250 of the 84,000 chemicals registered for commercial use in the U.S. today and banned or restricted only nine.”

   The report also points out that penalties and fines even for causing the death of a worker are incredibly low. The Occupational Safety and Health Administration specifies a fine of $7,000 for a serious workplace violation, with the levy increasing to $70,000 for willful or repeated violations. DuPont, which owns a LaPorte, Texas, plant in which four workers died last year because of a chemical leak, was initially fined $99,000 for the incident. Because it had multiple significant workplace safety violations, $273,000 was added to the fine and the plant was added to the violators list of the Severe Violator Enforcement Program (pdf). And even though DuPont reported $34.76 billion in revenue in 2014, it’s fighting the amount of the fines.

   It’s not that the public doesn’t want to see the industry regulated. A new poll shows that 79% of those surveyed want tougher regulation of the chemical industry. Even 70% of Republicans are on board with that.

   However, the ACC has spent millions lobbying lawmakers. Between 2012 and 2014, the industry as a whole paid $182 million to try to influence policymakers. There are also elaborate public relations campaigns to spread disinformation about the safety of chemicals to the public.

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10. Barton Solvents to Pay $1M EPA Settlement, Change Processes

    Oct 26, 2015 | AP (in The New York Times)

    An Iowa-based company that mixes and transports chemicals for customers in the printing, coating, and cleaning industries has agreed to pay $1.1 million to settle federal environmental violations and ensure safety at six plants in Iowa, Kansas and Wisconsin.

    The U.S. Environmental Protection Agency said Monday that Barton Solvents agreed to changes to correct found hazardous-waste storage and spill-prevention regulation violations.

    Barton President Dave Casten says the company doesn't agree with all the EPA's allegations but has made several improvements and is cooperating with the agency.

    The EPA says Clean Air Act violations caused explosions and fires at Barton plants in Valley Center, Kansas, and Des Moines, Iowa, in 2007.

    Barton also has facilities in Council Bluffs and Bettendorf, Iowa; Kansas City, Kansas; and West Bend, Wisconsin.

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Transportation News

11. House to Consider Highway Program Extension Bill

    Oct 27, 2015 | BNA Daily Environment Report

    The House plans to consider a bill by the end of October to extend authorization through Nov. 20 for surface transportation programs, including those focused on hazardous materials transportation. The Surface Transportation Extension Act of 2015 (H.R. 3819) includes a three-year extension for railroads to install positive train control systems—systems aimed at preventing human-error related derailments—for certain rail movements including those carrying toxic-by-inhalation materials. Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, introduced the bill on Oct. 23. The previous surface transportation patch is set to expire on Oct. 29. While the Senate passed its six-year highway bill (H.R. 22) that includes hazmat transport reauthorization in July, the House's bill (H.R. 3763) hasn't reached the chamber's floor for a vote yet (205 DEN A-17, 10/23/15). H.R. 3819 is available at http://docs.house.gov/billsthisweek/20151026/SHUSTE_047_xml.pdf.

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12. Bill Introduced to Expedite Pipeline Inspector Hiring

    Oct 27, 2015 | BNA Daily Environment Report

    A bipartisan group of congressmen introduced a bill to allow the nation's pipeline safety regulator to hire inspectors more quickly and efficiently. The bill (H.R. 3823), which a news release said was introduced Oct. 22 by senior House Energy and Commerce Committee member Gene Green (D-Texas), would give the Pipeline and Hazardous Materials Safety Administration direct hire authority to address an ongoing challenge the agency has been having in competing with industry for qualified pipeline inspectors (153 DEN A-5, 8/10/15). The bill was referred to several committees, including the House Transportation and Infrastructure Committee. House Energy and Power Subcommittee Vice Chairman Pete Olson (R-Texas), Rep. Janice Hahn (D-Calif.) and Rep. Brian Babin (R-Texas) were the original co-sponsors. The bill is available at https://www.congress.gov/114/bills/hr3823/BILLS-114hr3823ih.pdf.

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13. Railroads Say Disruptions Loom if Safety-System Deadline Isn’t Extended

    Oct 26, 2015 | The Wall Street Journal

    By Laura Stevens and Steven Norton

    Railroads are amplifying warnings that the U.S. transportation network would grind to a halt at the start of the new year if Congress makes them stick to a year-end deadline to install a new safety system.

    The major freight railroads, Amtrak and other industry groups say disruption of the economy would ensue—and public health and security would be put at risk—if they don’t get a reprieve. Railroads last week began notifying customers that they would stop shipping certain hazardous materials as early as Dec. 1, with passenger transport halting by Jan. 1 on certain routes—including most of Amtrak’s nationwide network—if no extension is granted.

    The railroads appear likely to get their wish. Late Friday, lawmakers tacked an extension of three years on to a bill due Thursday to extend transportation funding. The bill is widely expected to pass both houses this week. The extension adds stricter reporting requirements, mandating railroads outline their safety-system implementation plans for approval and annual review by the Transportation Department.

    The railroad industry says it has known the deadline couldn’t be met since 2008. That is when the law was passed requiring installation of “positive train control”—rail’s version of air traffic control—to prevent crashes like the fatal Amtrak accident in Philadelphia in May. So why haven’t they gotten the job done?

    “We started with a technology that didn’t exist, then we—as an industry—built and developed that technology,” Union Pacific Corp. Chief Executive Lance Fritz said in an interview. “We’re implementing it at the same time we’re testing it and debugging it… .It’s a real challenging project.”

    Railroads already have spent about $7 billion installing the system, which eventually will cover 60,000 route miles. And the job is only halfway done. PTC may resemble air-traffic control, but the bulk of the system won’t be government-created or funded, excepting Amtrak. Freight railroads build, own and maintain their tracks, signaling and switching systems. So PTC installation comes straight out of railroad’s bottom lines—and capital expenditures aren’t a big hit with investors.

    Some officials and industry watchers say the railroads could have come closer to meeting the deadline.

    The Federal Railroad Administration’s acting administrator, Sarah Feinberg, said in her confirmation hearing late last month that some railroads were working more diligently than others to install PTC. She has asked Congress for an extension that allows regulators to target areas of track to get PTC up and running as quickly as possible.

    “Seven years was always a tight deadline, but I actually believed that it was doable if more [railroads] put their minds to it,” said Steven Ditmeyer, a former federal railroad official who teaches railway management at Michigan State University. He added some railroads, such as the Metrolink and Caltrain commuter-rail systems in California were expected to meet the deadline, despite challenges.

    Ed Hamberger, president of the Association of American Railroads, said companies and lawmakers underestimated the complexity of the task.

    PTC is built from an intricate network of hardware and software synchronizing wireless radio communications, global positioning systems and sensors that can convey data about a train’s location and speed. It is designed to prevent collisions and derailments via algorithms that calculate factors including speed, the weight of trains and braking pressure to stop them safely, anywhere in the network.

    More than 70 railroads—many of them competitors—must pay for and install the technology. This means around 22,000 locomotives, 32,000 trackside antennas and signal systems for the biggest freight railroads alone.

    “It’s a challenge we haven’t seen before in this industry,” said Mark Schulze, BNSF Railway Co.’s vice president for operations support. “We’re designing and developing an airplane as we’re flying it.

    Although the system was mandated in 2008 after a collision between freight and Metrolink commuter trains killed 25 people in California, a rule dictating how it would work wasn’t issued until 2010. A rail industry challenge to a portion of the rule further delayed final guidelines until last year.

    PTC requires an unusual amount of collaboration for companies that remain fiercely independent and competitive. Up until now, railroads haven’t been forced to install compatible wireless-communication systems. Instead they have used paperwork, radios and phones.

    PTC requires that every locomotive, all trackside signaling technology, back office systems and wireless communications networks be configured—uniformly—to fix that. Soon, Union Pacific won’t be able to fill out a form or radio for permission to run a train on BNSF’s track. Instead, the computer aboard its locomotive must communicate with BNSF’s back office for digital permission.

    A train “basically has to become a chameleon and change seamlessly,” said Steve Sullivan, managing director at rail consultant R.L. Banks & Associates.

    All railroads are at various stages of installing PTC, with most needing between one and five years to complete the job, government status reports show. Of the four biggest freight railroads in the U.S., BNSF Railway Co. a unit of Warren Buffett’s Berkshire Hathaway Inc., is furthest along, expecting to finish in 2017. Norfolk Southern Corp. and CSX Corp. expect to be last in 2020.

    Norfolk Southern declined to comment beyond its public filings. CSX said it has invested $1.3 billion already and has encountered a number of hurdles along the way, such as a limited base of technology suppliers.

    Once the technology is installed, the Association of American Railroads says it could take years of testing to make it work. Currently, about 30% to 40% of tests by freight railroads have encountered errors, the AAR says.

    “It’s designed to basically take control of the train,” said Martin Oberman, chairman of Metra, Chicago’s commuter rail agency. “Imagine if the system did not work with total precision. You would have far greater dangers.”

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14. Congress Nears Deal on Its Other Crisis: Highway Funding

    Oct 27, 2015 | The National Journal

    By Jason Plautz

    While party lead­ers huddle with the White House to try to deal with the na­tion’s press­ing fisc­al prob­lems, Con­gress is inch­ing closer to break­ing an­oth­er crisis: the loom­ing high­way-spend­ing cliff.

    Fed­er­al trans­port­a­tion spend­ing is set to ex­pire at the end of the week, but the House could vote as early as Tues­day on a short-term ex­ten­sion that would buy mem­bers more time for a long-term bill. The Sen­ate passed a six-year trans­port­a­tion bill in Ju­ly, and the House Trans­port­a­tion and In­fra­struc­ture Com­mit­tee passed its own six-year bill last week.

    With a little ex­tra time—and some co­oper­a­tion—spon­sors say they’re hope­ful that the bills could be merged and passed be­fore Thanks­giv­ing, clear­ing one more im­pend­ing crisis from the packed au­tumn agenda.

    The House is set to vote as early as Tues­day on yet an­oth­er short-term ex­ten­sion that would keep trans­port­a­tion fund­ing alive un­til Nov. 20, and aides say the Sen­ate would take it up shortly after that.

    But Sen. James In­hofe, chair­man of the Sen­ate En­vir­on­ment and Pub­lic Works Com­mit­tee and lead au­thor of the Sen­ate trans­port­a­tion bill, warned that that ex­ten­sion means Con­gress will inch even closer to trans­port­a­tion hell. If Con­gress doesn’t act by Nov. 20, not only would a high­way bill have to com­pete with fund­ing the fed­er­al gov­ern­ment, the ex­pir­a­tion of cer­tain tax pro­vi­sions, and the Na­tion­al De­fense Au­thor­iz­a­tion Act, but the High­way Trust Fund would also dip to dan­ger­ously low levels.

    Trans­port­a­tion Sec­ret­ary An­thony Foxx has warned that start­ing in Novem­ber, the fed­er­al gov­ern­ment may have to im­ple­ment cash-man­age­ment pro­ced­ures, mean­ing that states will see a lag in get­ting re­im­bursed. Ac­cord­ing to the Trans­port­a­tion De­part­ment, the high­way fund will have a pos­it­ive bal­ance through June, but it has to con­serve money if the fund dips be­low a cer­tain level out of cau­tion.
    

    “Mark my words —a fail­ure for Con­gress to en­act a long-term bill by Thanks­giv­ing will res­ult in a lost 2016 con­struc­tion sea­son,” In­hofe said on the floor on Monday. “This is a ter­rible out­come that must be avoided at all cost.”

    A multi-year bill pay­ing for road and trans­it agen­cies has proven elu­sive be­cause the 18.4-cent-per-gal­lon fed­er­al gas tax has not been raised or in­dexed to in­fla­tion since 1993, leav­ing the High­way Trust Fund with per­il­ously low bal­ances. To keep the cur­rent level of about $50 bil­lion per year, le­gis­lat­ors had to come up with an ad­di­tion­al $16 bil­lion a year, and a gas-tax in­crease has been a polit­ic­al non­starter.

    Con­gress hasn’t moved a bill longer than two years in a dec­ade.

    The Sen­ate in Ju­ly passed a $350 bil­lion bill, but in­cluded a hodge­podge of pay-fors that would only cov­er about three years (among them sales from the coun­try’s pet­ro­leum re­serve and cuts to di­vidends paid to large banks). House Re­pub­lic­ans ended up not go­ing for that bill be­cause of the fund­ing gap, leav­ing it up to the House Trans­port­a­tion Com­mit­tee to write its own bill.

    That House bill, a $325 bil­lion, six-year bill, passed the com­mit­tee last week, and a spokes­man for the com­mit­tee said it could come to the floor in the next couple of weeks. The fund­ing de­tails on that bill haven’t been re­vealed by the House Ways and Means Com­mit­tee yet, and would have to be un­veiled be­fore the bill reaches the floor, un­less the House elects to simply go to con­fer­ence without pay-fors.

    Trans­port­a­tion Com­mit­tee chair­man Bill Shuster of Pennsylvania said he was “con­fid­ent that we can re­solve the dif­fer­ences between the House and Sen­ate meas­ures and pro­du­cing a fi­nal product that’s good for our na­tion’s in­fra­struc­ture.” In­hofe and his Demo­crat­ic part­ner, Sen. Bar­bara Box­er, said in a joint state­ment last week that they see a “very short con­fer­ence peri­od” ow­ing to the sim­il­ar­it­ies between the bills.

    Those talks will also take place apart from the broad­er budget and debt ceil­ing ne­go­ti­ations between the White House and Con­gress.

    Shuster’s short-term ex­ten­sion, however, also tucks in a policy pro­vi­sion that could prove con­tro­ver­sial. It ex­tends un­til 2018 a re­quire­ment that rail­roads in­stall a safety tech­no­logy known as pos­it­ive train con­trol, or PTC. The sys­tem had been re­quired by the end of the year, but many rail­roads had warned that they would not meet that dead­line and would have to start phas­ing out some ser­vice in or­der to avoid vi­ol­at­ing the law.Some Demo­crats, however, have said that a long-term ex­ten­sion leaves too much time for rail­roads to drag their feet and that ex­ten­sions should only be gran­ted to rail­roads who have shown they are try­ing to meet the dead­line.

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15. Pair of Houston-Area Reps Push For More Pipeline Inspectors

    Oct 26, 2015 | Fuel Fix

    By Jennifer A. Dlouhy

    Texas lawmakers are trying to kickstart government hiring of more federal inspectors to watch over the 2.6 million miles of pipelines that carry oil and other fuels across the United States.

    The legislators, including Houston’s Gene Green, a Democrat, and Republican Pete Olson of Sugar Land, are pushing legislation that would give the agency that oversees the nation’s sprawling pipeline network more freedom to hire staff.

    Their bill, introduced Thursday, would shift hiring authority from the federal Office of Personnel Management to the Pipeline and Hazardous Materials Safety Administration itself. The change is seen as making it easier and quicker to bring on inspectors by eliminating a lengthy vetting process and waiving competitive rating requirements and a preference for veterans.

    “Pipeline safety is critical,” Olson said, but it “relies upon an adequate supply of inspectors to accomplish inspections in a timely manner to both protect surrounding areas and ensure timely delivery of needed energy.”

    PHMSA has steadily expanded since a 1999 pipeline blast in Bellingham, Wash., but the agency has struggled to put enough inspectors on the beat and keep up with the demands of an aging pipeline network and a recent surge in domestic oil and gas production. The non-partisan Congressional Research Service has documented a persistent shortfall in the number of employees at PHMSA below funded levels.

    Congress gave the agency the money to pay for 109 new positions in fiscal year 2015, 80 percent of which were to be in inspection and enforcement areas. But as of August, PHMSA had only been able to hire about half of those.

    The agency says it struggles to compete with private sector employers to hire qualified inspectors and keep them on the job when companies come calling. PHMSA inspectors who have gone through years of training are highly valued by private pipeline operators trying to comply with federal safety regulations.

    The problem has intensified amid the oil and gas drilling boom.

    “As we try to hire more inspectors to meet the demands of this emerging area, we’re also competing in hiring those inspectors with industry,” Transportation Secretary Anthony Foxx told a Senate panel in April. “We’re continuing to compete for the very best talent we can in that space.”

    Agency officials also have blamed delays in the federal hiring process. Sometimes, PHMSA works to recruit and train pipeline inspectors on a temporary basis but is unable to swift offer them permanent positions.

    “The engineers and transportation specialists who are the target candidate pools for these positions are highly sought after by the expanding U.S. oil and gas industries that PHMSA regulates,” PHMSA administrator Marie Therese Dominguez told a Senate panel last month.. “It is difficult to match not only industry salaries, but also the speed with which industry is able to hire.”

    PHMSA has been asking for direct-hire authority to speed up the process.

    Green described pipelines as “the safest, quickest and most efficient way to transport oil,” though recent accidents have had “harmful effects on the environment and surrounding communities.”

    “Updating our infrastructure is only one part of making pipelines safer,” Green said. “We need to hire and invest in pipeline inspectors.”

    In May, a pipeline in Santa Barbara, Calif. spilled as much as 142,800 gallons of oil, with some entering the Pacific Ocean and folding a stretch of southern California beaches.

    Pipeline safety also has been a major factor in the federal government’s long scrutiny of Keystone XL, which would carry oil sands crude from Canada to Gulf Coast refineries.

    The new legislation, also sponsored by Democratic Rep. Janice Hahn of California and Republican Rep. Brian Babin of Texas, would require PHMSA to report annually on its efforts to hire women, minorities and veterans.

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Energy and Environment News

16. (ACC Mentioned) Industry Attacks Clean Power Plan in Court

    Oct 26, 2015 | Environmental Leader

    More than 20 businesses and industry organizations have filed lawsuits to overturn the Clean Power Plan.

    Immediately after the EPA published the carbon rule for existing power plants last Friday, 24 states sues to stop the law, which requires existing coal-burning power plants must cut carbon emissions by 32 percent by 2030, compared to 2005 levels.

    The US Chamber of Commerce, which is suing to stop the carbon rules, said the Clean Power Plan is bad for business and represents a “massive executive power grab.”

    The Chamber has been joined in the 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.

    Calling the carbon regulation “unlawful,” the Manufacturers’ Center for Legal Action (NAM’s legal arm) said: “Manufacturers need abundant and reliable supplies of energy and reasonable and predictable policies that allow for continued investment and growth. This plan restricts resources and reduces reliability, while setting a dangerous precedent for future regulation of other sectors. Manufacturers can’t sit by while this Administration makes it increasingly difficult to make things and create jobs in the United States, especially at a time when the regulatory weight borne by manufacturers is heavier than ever.”

    The American Wood Council said it was joining the Clean Power Plan litigation to ensure production of biomass energy. The American Forest & Paper Association said it is concerned the final rule will threatened affordable electricity and said it’s joining the lawsuit to “protect the global competitiveness of our industry.”

    The states and industry organizations are also asking the court to block the Clean Power Plan while the legal challenges make their way through the courts.

    Additionally, Murray Energy Corp., coal industry groups and a coalition of 37 electric cooperatives have also filed lawsuits to block the carbon rules, Environment & Energy Publishing reports.
    

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17. Oklahoma Earthquakes Called National Security Threat

    Oct 27, 2015 | BNA Daily Environment Report

    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.

    On Pace for 1,000 Earthquakes

    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 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 (113 DEN A-13, 6/12/15).

    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 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 Gov. 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.

    Cushing Key Oil Town

    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.”

    Potential for Pipeline Damage

    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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18. Court Consolidates 20 Suits Over EPA Carbon Rule

    Oct 26, 2015 | PoliticoPro - Whiteboard

    By Alex Guillén

    The D.C. Circuit Court of Appeals has consolidated 20 separate lawsuits over EPA's Clean Power Plan into one case.

    The suits will move forward under the umbrella of 15-1363, West Virginia et al. v. EPA, the primary state suit over the rule.

    Oklahoma and North Dakota filed separate suits over the rule. Other lawsuits were filed by Murray Energy, the National Mining Association, the American Coalition for Clean Coal Electricity, United Mine Workers of America, the National Rural Electric Cooperative Association, the National Association of Home Builders and the U.S. Chamber of Commerce.

    At least 107 distinct entities have so far sued EPA over the rule through those 20 suits, according to court records, a number likely to grow in the coming weeks. Several of those, including leading state and industry groups, have asked the court to stay the rule while litigation plays out.

    The consolidation, a routine step when multiple parties sue over the same regulation, was performed by court staff. No judges have yet been assigned.

    A separate lawsuit filed by North Dakota over EPA's rule for new, modified and reconstructed power plants has not been consolidated with the challenges to the separate rule for existing plants. Challenges to the rule for new plants will likely play out in a separate suit, though the same panel of judges are expected to hear all the suits.

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19. House CRA Resolutions Introduced; Senate Versions Expected

    Oct 27, 2015 | E&E Daily News

    By Jean Chemnick

    Rep. Ed Whitfield (R-Ky.) introduced two resolutions yesterday aimed at using the Congressional Review Act to scuttle U.S. EPA rules for new and existing power plant carbon.

    The chairman of the House Energy and Commerce Subcommittee on Energy and Power said in a statement that his measures would restrain an EPA that has overstepped the bounds of its legal authority.

    "There's nothing in the Clean Air Act that authorizes EPA to implement these unprecedented rules," he said. "An EPA takeover of the electricity sector is a recipe for higher bills, reduced reliability, and job losses. These resolutions stand up for ratepayers, jobs, and affordable energy in Kentucky and throughout the country."

    One of the resolutions targets EPA's Clean Power Plan, which seeks to cut power plant carbon emissions by 32 percent compared with 2005 levels by 2030. The other would pull the plug on EPA's newly finalized mandate that all new coal-fired power plants use carbon capture and storage to ratchet down emissions.

    Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Shelley Moore Capito (R-W.Va.) are introducing a companion pair of resolutions in the Senate this week, but while they may or may not clear the Senate, they are certain to die on President Obama's desk. Neither chamber of Congress has the votes to override the president's veto.

    Whitfield has already seen a bill he sponsored, H.R. 2042, pass the House, which would allow states to opt out of the Clean Power Plan without fear that the federal government would step in with a plan of its own. But it, too, is not considered likely to become law. Republican leaders hope, however, that the votes will embarrass the administration ahead of this year's United Nations climate talks in Paris.

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20. GOP Rep: Congress Should Focus More On Climate Change

    Oct 26, 2015 | The Hill - E2 Wire

    By Devin Henry

    A Republican lawmaker is pushing Congress to focus more on climate change, calling it “one of the major challenges of our time."

    In a Miami Herald op-ed, Rep. Carlos Curbelo (Fla.) said lawmakers need to a better job of focusing on ways to cut carbon emissions, invest in clean energy and combat climate change. “To view climate change through partisan lenses only detracts from efforts to discover practical solutions,” Curbelo wrote over the weekend. “This debate should not devolve into a petty competition between Republicans and Democrats.”

    Curbelo said lawmakers should look to encourage the expansion of clean energy and provide tax incentives to develop solar, wind and hydropower. 

    But he warned that the focus should be “market-based as opposed to one driven by an increase in top-down government regulation.”

    “Enacting policies that encourage the private sector to invest, not only in general infrastructure projects, but long-term visionary technologies, will lead to economic prosperity and environmental sustainability,” he wrote. 

    Curbelo was one of 11 House Republicans, out of 247, to sponsor a resolution last month recognizing humans’ role in causing climate change and pushing for more action to address global warming. The resolution didn’t endorse specific proposals, however.

    At the same time, GOP-leaning voters are warming to the idea of human-caused climate change. 

    In a poll released last week by the University of Texas at Austin, 59 percent of Republicans said they accept the science behind climate change, the highest proportion since the survey began, Bloomberg reported. 

    But GOP voters have yet to coalesce around ways to address the issue. Only a quarter of respondents support a tax on carbon emissions, though half said they would be more likely to back a presidential candidate who supports requiring utilities to get more of their power from renewable sources.

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21. Ayotte Bucks Republicans on EPA Carbon Rules

    Oct 27, 2015 | BNA Daily Environment Report

    By Andrew Childers and Anthony Adragna

    One Senate Republican has come out in favor of the Environmental Protection Agency's efforts to curb carbon dioxide emissions from power plants, which could stymie efforts to block the rules using the Congressional Review Act.

    “I have decided to support the Clean Power Plan to address climate change through clean energy solutions that will protect our environment,” Sen. Kelly Ayotte (R-N.H.) said in a statement Oct. 25. “New Hampshire is already well on its way to meet the goals of the Clean Power Plan through positive steps it has already taken.”

    Ayotte's office told Bloomberg BNA Oct. 26 she would not support efforts to overturn the EPA's carbon dioxide emissions standards via the Congressional Review Act.

    The New Hampshire Republican, who faces a competitive re-election contest next year, said she plans to “carefully monitor implementation of the plan to make sure there is sufficient flexibility for New Hampshire.”

    Separately Oct. 26, Rep. Ed Whitfield (R-Ky.) introduced resolutions of disapproval for the Clean Power Plan and the EPA rule governing new or modified power plants.

    The EPA published its Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions standards for existing power plants in each state, and its new source performance standards for carbon dioxide emissions from new and modified power plants (RIN 2060-AQ91) in the Federal Register Oct. 23, sparking a bevy of lawsuits.

    North Dakota Challenges New Source Rule

    North Dakota filed the first legal challenge to the EPA rule to curb carbon dioxide pollution from new power plants (North Dakota v. EPA, D.C. Cir., No. 15-1381, 10/23/15).

    North Dakota filed a separate lawsuit over the EPA's Clean Power Pan, which is being challenged by 26 states and a group of utilities, unions and industry trade groups (206 DEN A-14, 10/26/15).

    The latest challenges to the rule were filed by NorthWestern Corp., the National Association of Home Builders and Luminant Generation Co.

    The U.S. Court of Appeals for the District of Columbia Circuit has already begun consolidating the various petitions for review of the Clean Power Plan into a single docket (West Virginia v. EPA, D.C. Cir., No. 15-1363, consolidation order 10/26/15).

    North Dakota ranked second in per capita carbon dioxide emissions from the energy sector in 2013, according to data released Oct. 26 by the Energy Information Administration. Many of the largest emitters have also joined lawsuits challenging the EPA's standards including Wyoming, West Virginia, Louisiana, Montana, Kentucky and Indiana.

    Ayotte Defection Hampers Resolutions

    In addition to Whitfield, Sens. Shelley Moore Capito (R-W.Va.) and Heidi Heitkamp (D-N.D.) will attempt to thwart the Clean Power Plan in the Senate, and Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Joe Manchin (D-W.Va.) will target the performance standards for new and modified power plants.

    There are likely to be other Republican defections beyond Ayotte with Sen. Susan Collins (R-Maine) telling Bloomberg BNA in August “in general, I support the ability of EPA to issue regulations in this area.” Even assuming the Republican caucus held together, the chamber faces a near-impossible climb to the 67 votes necessary to overcome a sure veto from President Barack Obama (150 DEN A-15, 8/5/15).

    Ayotte has a mixed record on environmental issues: the New Hampshire Republican boasts just a 23 percent lifetime rating from the League of Conservation Voters but was one of five Republicans to vote in January that human activity significantly contributes to climate change (14 DEN A-17, 1/22/15).

    Mayors Back EPA Regulation

    Meanwhile, the mayors of the nation's largest cities backed the EPA's Clean Power Plan in an Oct. 23 statement.

    “The Clean Power Plan represents a strong signal of US leadership on climate, which has too-often been lacking at the federal level,” a group of 14 mayors including those of New York, Houston, Los Angeles, Chicago, Philadelphia and Dallas said in the statement.

    “We look forward to strong leadership from the United States in Paris and are eager to partner with our leaders in Washington to develop additional national strategies to combat climate change and grow our economy,” the statement said.

     

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22. Greens Claim Vindication As Ayotte Embraces Climate Rule

    Oct 26, 2015 | PoliticoPro

    By Darren Goode

    Environmentalists say Sen. Kelly Ayotte's decision to back President Barack Obama's landmark climate rule vindicates their view that support for such policies will be a winning issue in the general election next year.

    Ayotte on Sunday became the first Senate Republican to embrace the Clean Power Plan, when she told New Hampshire's WMUR that the Granite State was well on its way to achieving the required reductions in power plants' carbon dioxide emissions. While her position is unlikely to usher in widespread GOP acceptance of the rule, it bolsters arguments from Democrats and environmentalists that general election voters want candidates who acknowledge the reality of climate change and support policies to address it.

    Without a primary challenger, Ayotte is freer to focus on the swing voters she would need to attract in her neck-and-neck race against Democratic Gov. Maggie Hassan, who has campaigned on her support for the climate rules. Ayotte's decision gives her some extra wiggle room and denies ammunition to Democrats — and their supporters such as the League of Conservation Voters and billionaire climate activist and donor Tom Steyer.

    Ayotte “recognized a simple political fact: New Hampshire voters overwhelmingly support policies like the Clean Power Plan to save lives, lower energy costs and address climate change,” said Mike Padmore, New Hampshire state director for Steyer's NextGen Climate.

    LCV state director Rob Werner credited Ayotte's support of the rule to thousands of phone calls and letters to her office from its members. LCV has not yet decided whether to actively oppose Ayotte next year, Werner said. It is "much, much too early to even consider" how the group would approach the race.

    "It definitely does benefit her to do so," Werner said of her support for the Clean Power Plan. "She's reflecting what the people of her state would like her to do."

    None of the Republican presidential candidates vying for support of New Hampshire Republicans ahead of the first-in-the-nation primary have embraced the EPA rule.

    Jeb Bush, who green-minded Republicans say has left himself the most wiggle room to pivot to a more moderate view on climate change in a general election, has called the EPA rules “irresponsible and overreaching” and said they are “going to be a disaster and we should fight it.” But he has not said what, if anything, he would replace the Clean Power Plan with. Fellow Florida Republican Marco Rubio has vowed to “stop President Obama’s carbon mandates” and Ohio Gov. John Kasich has similarly said the EPA power plant rules “must be scrapped and not replaced.”

    Florida and Ohio are among the more than two-dozen states suing EPA over the new rule, which was formally promulgated Friday. New Hampshire has sided with EPA in previous challenges to its rules but has not formally intervened in the new case.
    
    “I expect she did her homework on this like every other issue and feels that there’s support for it here in New Hampshire,” said Jeb Bradley, the Republican majority leader in the state Senate, pointing to the state's history of strong environmental laws.

    A July poll from LCV and the Natural Resources Defense Council Action Fund found 50 percent of likely Republican primary voters in New Hampshire supported EPA carbon controls for existing power plants.

    Ayotte's decision is in line with her moderate record on green issues, relative to her GOP peers. She was one of only six Republicans in 2011 to oppose killing EPA’s Cross-State Air Pollution rule and one of five Republicans in 2012 to oppose trumping EPA’s mercury and air toxics controls for power plants. Earlier this year, she was one of five GOP senators to support a nonbinding budget amendment declaring that climate change is real and "Congress needs to take action to cut carbon pollution."

    Her support for the EPA rule further dampens the prospects for resolutions congressional Republicans are pursuing to block the rule through the Congressional Review Act, a seldom-used 1996 law that allows lawmakers to overturn recently finalized rules with a simple majority vote.

    While Obama would veto the resolutions, making their consideration a mostly symbolic exercise, Ayotte's opposition would add provide some bipartisan backing for EPA defenders. The CRA resolutions already count two Democrats as supporters, West Virginia's Joe Manchin and Heidi Heitkamp of North Dakota.

    “The CRA is nothing more than a political drama, everyone knows where it’s going,” said Jeremy Symons, an associate vice president at Environmental Defense Fund and former Senate Democratic aide.

    It remains to be seen whether other moderate Republicans join Ayotte. For example, Sen. Susan Collins (R-Maine) also has a history of siding with Democrats on many environmental votes. Sen. Mark Kirk (R-Ill.), another moderate up for reelection, is another Republican to keep an eye on as a possible opponent to the GOP CRA challenges.

    As a House member, Kirk was one of only eight Republicans to support a 2009 House cap-and-trade bill, but earlier this year he backed an appropriations rider that would block funding to implement the Clean Power Plan. That move sparked a digital ad campaign against the Illinois Republican by LCV. Collins' and Kirk's offices did not immediately respond to requests for comment.

    Ayotte’s opposition is “another sign that the partisan polarization on climate change is beginning to thaw,” Symons said.

    But her opponent is will continue to paint Ayotte as an enemy of greens. Hassan campaign spokesman Aaron Jacobs Monday said Ayotte still has a lifetime League of Conservation Voters score of 23 percent. “New Hampshire voters will see right through Ayotte’s blatant attempt to rewrite her dismal record on the environment,” Jacobs said in an email.

    Hassan sent a letter Friday to the state’s congressional delegation asking them to support the rule.

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23. Facing High Bar, Critics Emphasize ESPS' Immediate Harm In Seeking Stay

    Oct 26, 2015 | InsideEPA

    By Dawn Reeves

    Opponents of EPA's greenhouse gas rule for existing power plants, who filed motions to stay the measure within hours of its promulgation, are emphasizing the rule's immediate and “irreparable” harm, an effort intended to overcome likely agency arguments that the rule's lengthy compliance and other deadlines will obviate the need for a stay.

    “While actual compliance with the Rule is not due to begin until 2022, the final decisionmaking needed to enable compliance by that time must take place immediately,” the National Mining Association and several other coal sector groups argued in an Oct. 23 motion.

    “EPA also understands that once the industry transformation is firmly underway, it becomes irreversible even if this Court overturns the agency’s action through the normal appellate process,” the motion adds.

    The industry stay motion is one of several that critics of the existing source performance standards (ESPS) filed in the U.S. Court of Appeals for the District of Columbia Circuit in response to the rules' promulgation in the Federal Register.

    Such stay motions are considered crucial for critics, who fear that state regulators and utilities will begin preparing for the rule's implementation before the Supreme Court decides years from now on the regulation's merits. “We could have essentially what amounts to a Pyrrhic victory,” West Virginia Solicitor General Elbert Lin -- lead litigator for the coalition of states that was the first to challenge the rule -- told a House Energy and Commerce Committee panel hearing Oct. 22.

    But opponents face a high bar to winning a stay, including that they must show they face irreparable harm and that they are likely to prevail on the merits. Legal observers have said that task was difficult because the rule's final compliance time is in 2030 though the task may have become more difficult after EPA -- in the final version of the rule -- delayed the initial compliance period from 2020 to 2022.

    EPA has already made such an argument when it successfully defended the final rule from efforts to block the pre-publication version. For example, the Department of Justice (DOJ) on EPA's behalf successfully urged the D.C. Circuit to reject early stay requests from West Virginia and others after arguing that the critics cannot point to the state planning process to justify their irreparable harm arguments.

    “Although the Rule instructs the states to submit plans to implement [GHG] standards, and imposes a September 2016 deadline for the submission of a state plan, a state may obtain a two-year extension of that deadline by submitting, by that same date, a minimal initial submittal.”

    Even some power industry representatives have acknowledged the difficulty of winning a stay because of the difficulty in showing “irreparable” harm. Kyle Danish, a lawyer at VanNess Feldman, said earlier this month that stay requests face an “uphill battle.”

    Other observers have said that EPA's rule is also more secure from stay requests because of other changes the agency made, which will help overcome industry arguments that they are likely to succeed on the merits. For example, the agency dropped its proposed use of energy efficiency as one measure it had proposed to use for setting state targets because of fears that it may lack legal authority to regulate in that area.

    Manufacturers' Motion

    In an effort to overcome such hurdles, the stay requests filed with the D.C. Circuit strongly emphasize the immediate and irreparable harm that will result if the rule is allowed to remain in effect over the course of the litigation.

    The U.S. Chamber of Commerce and a dozen other major business groups argue in their stay motion that the rule's “seismic change to the power industry -- and the national economy” means that “Never before in the [Clean Air Act's] history have the States and industry been ordered to do so much in so little time.”

    This “warrants the exercise of this Court's extraordinary authority so it can review the petitions before these fundamental changes to the economy occur and cannot be undone.”

    The Chamber said in a statement that even though the rule does not formally take effect until 2022, EPA predicts that “numerous electricity plants will be forced to shut down within the next year, causing job losses in communities throughout the country.”

    The motion argues that, “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 motion also argues that the costs the ESPS will impose are “immediate and unrecoverable,” not only for States “but also on Movants' member companies.”

    The motion includes a declaration by Karen Harbert, president and CEO of the Institute for 21st Century Energy who says the rule will impair a broad cross section of American industry. “Absent a stay, thousands of companies must also begin compliance efforts immediately. The changes the Rule demands require many years of lead time. Some companies must begin immediately constructing new infrastructure” she says, citing one utility that must spend $72 million in infrastructure improvements in 2016 and 2017 to replace generation that EPA projects will close next year under the rule.

    Also because states have not yet proposed compliance plans, “companies are forced to undertake these compliance measures in the dark, without knowing whether their measures will satisfy the implementation plans finalized by the state or states in which those companies operate. This uncertainty may last for years” because state plans are unlikely to be final until 2019.

    “Absent a stay, companies are thus caught on the horns of a dilemma: If they do not begin compliance measures now, they will not be able to comply when the Rule becomes effective. But if they do begin compliance measures now, they cannot know if their measures will ultimately comport with whatever implementation plans EPA approves.”

    Other harms Harbert cites include immediate impacts to coal utilities and mines, including widespread job losses in 2016.

    NMA and the other coal groups reiterated that point, arguing that the agency manipulated data in developing its base case or business-as-usual scenario to try to limit the expected impact on the coal sector.

    The groups charged that EPA “arbitrarily” reduced the amount of coal generation assumed to be in existence at the beginning of 2016 “so as to make it seem as if the rule causes fewer coal retirements that it really does.” Unlike the unbiased assessments of the Energy Information Administration, EPA's modeling shows that “a large number of coal generating units that have not announced that they intend to retire nevertheless will do so a few months from now.”

    But the coal groups added that “even with this manipulation,” EPA's projections demonstrate that operators plan to retire coal plants early to avoid near-term investments necessary to maintain operation, including to comply with other regulations with pending compliance deadlines given that they will be forced to close in 2022 to comply with the rule.

    Success on Merits

    The Chamber motion also tees up industry claims that petitioners are likely to succeed on the merits, arguing that the Clean Air Act text and structure “is more than sufficient to foreclose EPA's 'capacious' reading” of the air law's section 111(d), under which EPA issued the ESPS, but “even if there were some ambiguity on this score, controlling canons of construction preclude EPA's assertion of authority to fundamentally restructure the power sector.”

    The motion cites the Supreme Court's health care ruling from last term in King v. Burwell and its 2014 ruling in Utility Air Regulatory Group (UARG) v. EPA, which limited EPA's GHG permitting power. King v. Burwell holds that when Congress wishes to assign a question of deep significance to an agency it speaks “expressly” on that issue, the motion says.

    “Such a clear statement is doubly necessary in this case, where EPA claims to discover for the first time vast powers 'in a long-extant statute' -- a claim courts greet with well-deserved skepticism,” it adds, citing UARG. West Virginia Attorney General Patrick Morrisey (R) has also submitted a stay request that reiterates the states' longstanding position that the Clean Air Act bars EPA from regulating power plants under section 111 at all because it already regulates their air toxic emissions under section 112.

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