Preview Newsletter
NI - ACC PM Oct 27
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(ACC Blog) Polyurethane Highlighted on Home Improvement Radio Show
Oct 27, 2015 | American Chemistry Matters
Whether we listen for today’s hit music, the most up-to-date news coverage or to make our commutes more bearable, many of us spend time each day tuning into our favorite radio stations. -
New York City's Microbead Moment
Oct 26, 2015 | Huffington Post
By John F. Calvelli
If New Yorkers knew they were sending toxic plastic pollutants down their drains and into our waterways every time they washed their faces, most would be appalled. -
US Lawmaker to Draft Legislation to Update Cosmetics Law
Oct 27, 2015 | Chemical Watch
Representative Frank Pallone (D-New Jersey) says he wants to work with colleagues in Congress to draft bipartisan legislation that will “finally allow the Food and Drug Administration (FDA) to ensure that cosmetics, used every single day, are not harmful.” -
Under Pressure, Feminine Product Makers Disclose Ingredients
Oct 26, 2015 | New York Times
By Rachel Abrams
Dressed as a box of Tampax tampons, Stephanie Phillips, a 30-year-old vegan chef, danced on the sidewalk outside Procter & Gamble’s headquarters in Cincinnati. -
Feminine Product Makers Disclose Ingredients
Oct 27, 2015 | E&E - Greenwire
Increased pressure from health advocates at protests and on social media has led several feminine product manufacturers to begin posting full lists of the materials in their products online. -
A Cyber Defense Bill, At Last
Oct 27, 2015 | Wall Street Journal
By Editorial board
By now everyone knows the threat from cyber attacks on American individuals and business, and Congress finally seems poised to do something about it. -
House to Pass Short-Term Policy Patch
Oct 27, 2015 | Politico - Morning Transportation
By Jennifer Scholtes
With just three days left until transportation authority runs out, House lawmakers are set to vote today on their latest short-term extension — this time attempting to kick the can for another 22 days. -
Senators Form Bipartisan Caucus to Reform Rulemaking
Oct 27, 2015 | E&E - Greenwire
By Ariel Wittenberg
Citing what they call an "out of control" regulatory system, senators from both sides of the aisle have joined forces to create a new Senate Regulations Caucus aimed at revamping the rulemaking process. -
Congressional Review Act Effort Launched in Both Chambers
Oct 27, 2015 | E&E - Greenwire
By Jean Chemnick
Senate opponents of U.S. EPA's power sector rules have joined their House counterparts in using the Congressional Review Act to target them. -
EPA Protects People by Enforcing the Law
Oct 27, 2015 | The Hill - Congress Blog
By Gina McCarthy
America has come a long way in protecting public health and the environment over the past 45 years. Since 1970, we've cut air pollution by nearly 70 percent, while our economy has tripled in size. -
Heitkamp to Support McConnell Resolution Opposing Climate Rule
Oct 27, 2015 | Politico Pro - Whiteboard
By Andrew Restuccia
Sen. Heidi Heitkamp plans to vote for Senate Majority Leader Mitch McConnell's disapproval resolutionaimed at overturning EPA's final climate regulation for new and modified power plants even though she did not sign on as an original co-sponsor of the measure, an aide said today. -
Noise Trumps Logic in Clean Power Plan Lawsuits
Oct 27, 2015 | The Hill - Contributors
By Denise Grab and Richard L. Revesz
Last Friday, moments after the Environmental Protection Agency (EPA) formally published its Clean Power Plan, which regulates carbon dioxide emissions from the power sector, opponents of the rule filed suit to strike it down, and, in the meantime, to stay its application. -
D.C. Circuit Utility MACT Decision Will Test Handling Of Flawed EPA Rules
Oct 27, 2015 | InsideEPA
By David LaRoss
A former top Department of Justice (DOJ) official says the U.S. Court of Appeals for the District of Columbia Circuit’s impending decision on whether to vacate EPA’s utility air toxics rule after the Supreme Court found flaws... -
Okla., Texas Show Signs of Veering from 'Just Say No' Approach
Oct 27, 2015 | E&E - Energywire
By Elizabeth Harball and Edward Klump
Many right-leaning states have been fighting U.S. EPA's Clean Power Plan since it was proposed, and some of the rule's most ardent opponents, including Texas and Oklahoma, signaled they might do nothing to comply. -
EPA to Propose Reporting Rule for Natural Gas Plants
Oct 27, 2015 | E&E - Greenwire
By Amanda Reilly
U.S. EPA plans to propose a regulation requiring natural gas processing plants to report releases of toxic chemicals to the air, water and soil, the agency told environmentalists in a letter released today. -
Southern Kansas Sees Sudden Spike in Earthquakes
Oct 27, 2015 | Washington Post
By Ryan Schuessler
A sudden spike of earthquakes in southern Kansas is raising eyebrows in the region, where there have been more earthquakes in the past two weeks than there were in the years between 1990 and 2013. -
Industry Objects to EPA Updates to Regional Consistency Regs
Oct 27, 2015 | E&E - Greenwire
By Amanda Reilly
Industry is raising concerns about a U.S. EPA bid to provide for exemptions from federal court decisions on air rules. -
Should the Ban on U.S. Oil Exports Be Lifted?
Oct 27, 2015 | New York Times
By Thomas Pyle and Michael Brune
Swapping the oil export ban for renewable energy tax credits, as your editorial suggests, is righting one wrong by replacing it with another. -
It Isn't 1975, So Why Are We Still Banning Oil Exports?
Oct 27, 2015 | Forbes
By Senator Bill Cassidy and Dillon Weber
In the early 1970s the United States was an oil superpower. Our fields produced over 9 million barrels of oil per day (bbl/d), accounting for more than 15% of the global marketplace. However, our energy consumption at the time still required us to import oil... -
Science Behind ‘Waters’ Rule Could Impact NRD Liability, Attorney Says
Oct 27, 2015 | InsideEPA
By Suzanne Yohanna
A private-sector attorney is predicting federal natural resource trustees may apply the science underlying EPA’s much-disputed Clean Water Act (CWA) jurisdiction rule to natural resource damages (NRD) cases to argue discharges into isolated waters...
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(ACC Blog) Polyurethane Highlighted on Home Improvement Radio Show
Oct 27, 2015 | American Chemistry Matters
Whether we listen for today’s hit music, the most up-to-date news coverage or to make our commutes more bearable, many of us spend time each day tuning into our favorite radio stations.
Mighty House Radio listeners recently heard about the many benefits of polyurethane and spray polyurethane foam.
Lee Salamone, senior director of the Center for the Polyurethanes Industry, and Justin Koscher, director of the Spray Foam Coalition, spoke with the Mighty House Radio hosts about how polyurethane is present in many of the products that make our homes comfortable and stylish, including furniture, mattresses, appliances, carpet underlay and flooring.
They also discussed how spray polyurethane foam can play a major role in insulating and air-sealing homes and buildings – helping to reduce air leakage, which can result in lower utility bills*, reduced greenhouse gas emissions and improved indoor air quality by helping to eliminate the infiltration of dust and allergens.
Mighty House Radio is a weekly radio show, which is broadcast in several cities throughout the nation. Hosts Ron Cowgill and Rich Cowgill, along with producer Robbie Erhardt, are on the airwaves each Saturday morning to discuss many topics involving home improvement and repair.
Listen here: https://soundcloud.com/mighty-house-radio-show/acc-polyurethane-interview-17-oct-15.
At home with polyurethane
Home builders often need high-performance materials that are strong and durable, yet lightweight and easy to install. With its impressive strength-to-weight ratio, insulation properties, durability and versatility, polyurethane is a common component in building and construction. Polyurethane products can also enhance the aesthetic design of homes and buildings.
Appliance manufacturers also use polyurethane for many parts and components. The most common use of polyurethanes in major appliances is the rigid foam used in refrigerator and freezer thermal insulations systems, which helps keep food cold and fresh.
Because it is comfortable and durable, polyurethane – in the form of flexible foam and bonding adhesives – is one of the most common materials in upholstered furniture, bedding and carpet underlay.
* Savings vary. Find out why in the seller’s fact sheet on R-values. Higher R-values mean greater insulating power.
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New York City's Microbead Moment
Oct 26, 2015 | Huffington Post
By John F. Calvelli
If New Yorkers knew they were sending toxic plastic pollutants down their drains and into our waterways every time they washed their faces, most would be appalled. But it isn't apparent to most citizens that "microbeads," the tiny plastic pieces designed to increase abrasion in face washes and other consumer products, are highly damaging to the natural environment and the wildlife that live there.
We should know better.That is why WCS (the Wildlife Conservation Society) testified today in support of New York City Waterway Protection Act of 2015, which would address the concerns of plastic pollution in our waters, specifically microbeads.
Microbeads are so small, often measuring at a millimeter or smaller, that many wastewater treatment plants are not able to filter them out. Thus, microbeads make it through the treatment plants and into our waterways. Two-thirds of New York's sewage treatment plants do not have advanced treatment technology needed to remove microbeads. Researchers estimate that a single product can contain as many as 350,000 plastic microbeads.
Scientists have discovered high levels of microbeads in waterways throughout New York and the country, which means trouble for wildlife and humans. In New York State alone, 19 tons of microbeads are washed down the drain every year. By their nature, microbeads have chemicals in the plastic. Additionally, chemicals also collect other pollutants on their surfaces from the waters they are submerged in, including DDT and polychlorinated biphenyls (PCBs), which are highly toxic to living organisms. The particles are then ingested by wildlife, which mistake the microbeads for food, and become part of the food chain as larger animals eat the smaller ones.
everal large companies such as Procter & Gamble, Johnson & Johnson, and L'Oreal have already or are beginning to phase out the use of microbeads in their products, which means that the smart corporations already recognize the negative impact and are developing safe alternatives. A strong ban, like that contained in the New York City legislation, is still necessary to make sure microbead-laden products are completely off the shelves and that there are no loopholes that will still allow for microbeads to enter New York's waters.
Some states have passed bills that exempt so-called "biodegradable" microbeads. However, WCS scientist Dr. Emily Darling argues against this exemption in a paper she completed with several other colleagues entitled, "Scientific Evidence Supports a Ban on Microbeads." Studies have shown that depending on the environment that these supposedly biodegradable products end up, the rate at which they actually break down is very uncertain. We do know that it is difficult for plastics to break down in aquatic environments. For these reasons, New York needs a strong ban without such loopholes.
WCS hopes to help New Yorkers recognize and appreciate the wonders of the New York Seascape, and as part of that effort recently launched the Blue York Campaignwhich strives to develop an ocean ethic for the waters surrounding New York City; protect our ocean wildlife and wild places; and decrease pollution in these waters. Perhaps that awareness will help New Yorkers think twice about what they are sending down their drains.Until then, through this legislation, New York City has the opportunity to increase the health of its waterways and take a strong, uncompromising stand to ban the sale of products containing microbeads. The City Council should pass this strong ban so we can set a precedent in New York City that can be emulated in Albany and across the country.
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US Lawmaker to Draft Legislation to Update Cosmetics Law
Oct 27, 2015 | Chemical Watch
Representative Frank Pallone (D-New Jersey) says he wants to work with colleagues in Congress to draft bipartisan legislation that will “finally allow the Food and Drug Administration (FDA) to ensure that cosmetics, used every single day, are not harmful.”
Mr Pallone, who is the lead Democrat on the influential House Energy and Commerce Committee, referred to a recent study that found that women have higher levels of triphenyl phosphate (TPHP), a chemical used in popular nail polish brands, in their bodies just 10 to 14 hours after painting their nails. The study was done jointly by Duke University and the Environmental Working Group (EWG).
TPHP, which has not been reviewed by the FDA for use in cosmetics, is a suspected endocrine disruptor, said Mr Pallone.
“Millions of Americans assume that the cosmetics they are using on a daily basis are considered safe, but that is a myth,” the congressman said. “This latest study shows that these products can contain harmful chemicals, and that they are being absorbed into the body and putting consumers’ health at risk.”
Popular cosmetics and other personal care products continue to be largely unregulated, despite the fact that they can be found in almost every drugstore and nail salon across the country, he said.
That is because the FDA does not have the “framework or resources to review or approve the chemicals used in cosmetic products before they are sold to consumers, or even regulate cosmetic products until after they have already reached the marketplace,” Mr Pallone said.
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Under Pressure, Feminine Product Makers Disclose Ingredients
Oct 26, 2015 | New York Times
By Rachel Abrams
Dressed as a box of Tampax tampons, Stephanie Phillips, a 30-year-old vegan chef, danced on the sidewalk outside Procter & Gamble’s headquarters in Cincinnati.
Ms. Phillips and a small group of demonstrators were protesting the company’s use of chemicals in its feminine care products, much to the chagrin of the investors who were filing into the annual shareholder meeting.
“I think it’s really messed up thatProcter & Gamble’s putting chemicals in feminine products and not letting anyone know about it,” Ms. Phillips said.
Consumer products companies may have been able to ignore these kinds of displays in the not-so-distant past. Now, however, health advocates can use social media platforms and other tools to galvanize public support — not just from demonstrators like Ms. Phillips, but from customers who can boycott a company’s products.
The increased pressure to respond to public concern has yielded some results.
Within the last few weeks, P.&G. and its rival Kimberly-Clark, the maker of Kotex pads and tampons, began posting online the ingredients in their feminine hygiene products. While both companies list tampon ingredients on their packages, neither lists the ingredients for their pads on the packaging. P.&G. expanded the information it offered about the inclusion of synthetic materials, while Kimberly-Clark disclosed ingredients in its tampon applicators.
P.&G. also agreed to meet with Women’s Voices for the Earth after the group’s protest outside the shareholder meeting on Oct. 13.
The group had come armed with more than just costumes and banners: 35,000 people had signed a petition demanding that P.&.G. disclose feminine care ingredients and remove certain chemicals. The group had also created a spoof video as part of its campaign that has garnered more than 60,000 views online, according to its executive director, Erin Switalski.
“We had been trying to get a meeting with the company for a couple of years and they hadn’t been responding to our requests,” Ms. Switalski said. “If we aren’t able to get a dialogue, then we have to use some of these public pressure tactics to get these meetings to take place.”
Blogs, Facebook and Twitter have helped advocates like Ms. Switalski spread the word about their concerns. But manufacturers often grumble that public criticism of individual ingredients is not always justified, and forces them to make costly and time-consuming changes.
P.&G. and Kimberly-Clark say that their products are safe, and undergo rigorous scientific testing before they reach store shelves. And both companies say that transparency is a priority.
“Everything we do starts with the consumer,” a P.&G. spokesman, Damon Jones, said in an email. “It’s a balancing act — sharing enough to be helpful, but not too much that it is confusing.
P.&.G. and Kimberly-Clark together account for the largest share of the more than $3 billion worth of tampons, panty liners and feminine wipes sold in North America last year, according to data from Euromonitor, a market research firm.
While toxic shock syndrome is the best-known illness associated with tampons, advocates like Ms. Switalski are now more concerned with chemicals linked to cancer and allergies. Manufacturers have largely moved away from the ingredients linked to toxic shock syndrome since so-called superabsorbent products created a public health concern in the 1970s and 1980s.
The Food and Drug Administration still receives reports of illness relating to tampons, but says that instances of toxic shock syndrome are “rare.”
Some experts, like Dr. Philip M. Tierno, a professor of microbiology and pathology at New York University School of Medicine, argue that cotton tampons are preferable to those that use viscose rayon in the core. “Rayon” and “rayon fibers” are listed among the ingredients in some products on P.&G. and Kimberly-Clark’s websites.
“Even though viscose was the least of the bad superabsorbent ingredients, it’s still significant to some people,” he said. About four years ago, Dr. Tierno said he testified against a manufacturer in court in the case of a woman who lost all of her limbs because of toxic shock syndrome.
On its website, the F.D.A. says that “tampons made with rayon do not appear to have a higher risk of T.S.S. than cotton tampons of similar absorbency.”
But while the agency monitors certain chemicals linked to toxic shock syndrome and other ingredients, health advocates say that more oversight is needed, in part because companies are not required to disclose all the components that go into their raw materials.
Fragrances can be particularly problematic for consumers seeking more detailed information about their personal care products. Many personal care products companies simply list “fragrance” as an ingredient. (P.&G. describes it as “like those found in other women’s products.”)
Fragrances, however, can be made up of dozens of undisclosed chemicals that worry consumer advocates. Women’s Voices for the Earth says it found chemicals including styrene and chloroform in several of P.&G.’s feminine napkins.
Mr. Jones, the P.&G. spokesman, said the company disputed the group’s testing methodology, and he said that many of the chemicals listed in the report were commonly found in the environment.
Manufacturers say that their use of chemicals always falls well within safe exposure limits. But Ms. Switalski and others say that certain chemicals should not be included in products at all.
Complicating matters is the fact that companies often source fragrances from third-party suppliers, who guard their formulations closely.
Still, some companies have gone further than others: In June, SC Johnson, the maker of Glade, disclosed some of the most common fragrance ingredients used in more than 200 of its air fresheners, candles and scented oils.
“The new disclosures from Procter & Gamble and Kimberly-Clark are a step in the right direction, and show that the concerns expressed by millions of women are being heard,” Representative Carolyn B. Maloney, a Democrat from New York, said in a statement. “But these disclosures are still very limited.”
For more than a decade, Ms. Maloney has pushed Congress to approve further research on feminine hygiene products. This year, she reintroduced a version of the same bill she introduced in 1997, that would direct the National Institutes of Health to study ingredients in tampons and other products.
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Feminine Product Makers Disclose Ingredients
Oct 27, 2015 | E&E - Greenwire
Increased pressure from health advocates at protests and on social media has led several feminine product manufacturers to begin posting full lists of the materials in their products online.
Procter & Gamble Co. and Kimberly Clark Corp., maker of Kotex products, have begun posting the feminine hygiene products' ingredients online in the last few weeks. P&G also agreed to meet with Women's Voices for the Earth, which had protested outside its annual shareholder meeting earlier this month.
"I think it's really messed up that Procter & Gamble's putting chemicals in feminine products and not letting anyone know about it," protester Stephanie Phillips, dressed as a box of Tampax tampons, said outside the meeting.
The group of demonstrators outside P&G's Cincinnati headquarters was small, but it came with a petition signed by 35,000 people asking the company to disclose its product ingredients and remove some chemicals.
"We had been trying to get a meeting with the company for a couple of years, and they hadn't been responding to our requests," Women's Voices for the Earth Executive Director Erin Switalski said. "If we aren't able to get a dialogue, then we have to use some of these public pressure tactics to get these meetings to take place" (Rachel Abrams, New York Times, Oct. 26).
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Oct 27, 2015 | Wall Street Journal
By Editorial board
By now everyone knows the threat from cyber attacks on American individuals and business, and Congress finally seems poised to do something about it. As early as Tuesday the Senate may vote on a bill that would let businesses and the government cooperate to shore up U.S. cyber defenses.
This should have been done long ago, but Democrats blocked a bipartisan bill while they controlled the Senate and President Obama insisted on imposing costly new cyber-security mandates on business. The GOP Senate takeover in 2014 has broken the logjam, helped by high-profile attacks against the likes of Sony, Home Depot, Ashley Madison and the federal Office of Personnel Management.
Special thanks to WikiLeaks, the anti-American operation that last week announced that its latest public offering would be information hacked from the private email account of CIA chief John Brennan. We assume Mr. Brennan’s government email is better protected, but then this is the same government that let Hillary Clinton send top-secret communications on her private email server.
Democrats have decided it’s now bad politics to keep resisting a compromise, and last week the Cybersecurity Information Sharing Act co-sponsored by North Carolina Republican Richard Burr and California Democrat Dianne Feinstein passed the filibuster hurdle. A similar bill passed the House in April 307-106.
The idea behind the legislation is simple: Let private businesses share information with each other, and with the government, to better fight an escalating and constantly evolving cyber threat. This shared data might be the footprint of hackers that the government has seen but private companies haven’t. Or it might include more advanced technology that private companies have developed as a defense.
Since hackers can strike fast, real-time cooperation is essential. A crucial provision would shield companies from private lawsuits and antitrust laws if they seek help or cooperate with one another. Democrats had long resisted this legal safe harbor at the behest of plaintiffs lawyers who view corporate victims of cyber attack as another source of plunder.
The plaintiffs bar aside, the bill’s main opponents now are big tech companies that are still traumatized by the fallout from the Edward Snowden data theft. Apple, Dropbox and Twitter, among others, say the bill doesn’t do enough to protect individual privacy and might even allow government snooping.
Everyone knows government makes mistakes, but the far larger threat to privacy is from criminal or foreign-government hackers who aren’t burdened by U.S. due-process protections. Cooperation is voluntary, and the bill includes penalties if government misuses the information. Before either side can share data, personal information that might jeopardize customer privacy must be scrubbed.
The tech giants are the outliers in this debate, while nearly all of the rest of American business supports the bill. The White House has said Mr. Obama will sign the legislation, which would make it a rare example of bipartisan cooperation. The security-privacy debate is often portrayed as a zero-sum trade-off, but this bill looks like a win for both: Helping companies better protect their data from cyber thieves will enhance American privacy.
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House to Pass Short-Term Policy Patch
Oct 27, 2015 | Politico - Morning Transportation
By Jennifer Scholtes
HOUSE TO PASS SHORT-TERM POLICY PATCH: With just three days left until transportation authority runs out, House lawmakers are set to vote today on their latest short-term extension — this time attempting to kick the can for another 22 days. But getting this thing through the lower chamber isn’t expected to be the hard part. In the Senate, Barbara Boxer is still opposing the inclusion of a multiyear extension of the deadline for railroads to implement positive train control technology. And our Lauren Gardner reports that the senator is insisting she can forge a deal with Republicans to extend the PTC deadline for “months,” rather than through 2018.
Boxer says she’s confident she can negotiate a deal in the two days the Senate will have to consider the patch. “I’m trying to resolve it and give a reasonable extension — months, not years,” she told reporters on Monday. “Why pull this out? It’s because they don’t want the scrutiny, and it’s a special-interest earmark.” But if the California Democrat gets her way, the Senate will have to amend the legislation, sending it back to the House for another vote, almost certainly leading to a lapse in contract authority after Thursday.
‘By herself’: Although Boxer seems sure she can get others on board with blocking what she says amounts to a sweetheart carve-out, her GOP counterpart and one key Democrat aren’t buying her offer. “I think Barbara’s kind of by herself on this,” Senate EPW Chairman Jim Inhofe said Monday. And while top Senate Commerce Democrat Bill Nelson acknowledges that holding off on the PTC extension would give the “extra impetus” for enacting a long-term transportation bill this year, he says the threat of a nationwide rail shutdown is an “emergency” that warrants immediate action. “We’ve got to be practical about this and work this phased deal.”
SENATORS TEE UP FEINBERG NOMINATION FOR FLOOR ACTION: Fill-in FRA chief Sarah Feinberg is expected to move one step closer today to officially calling the post her own. Our Heather Caygle was the first to report that Senate Commerce lawmakers are expected to pop into a quick, off-the-floor markup this afternoon to give the railroad agency head their approval. Despite the stresses of watchdogging the rail industry during an especially turbulent tenure, Feinberg has earned the praise of lawmakers on both sides of the aisle and is expected to skate through to confirmation without any drama.
Congressional cred: Heather notes that Feinberg has held the “acting” role for more than nine months, having to guide the agency “through a tumultuous year that has included several fiery oil train derailments, fatal grade crossing accidents and May’s high-profile Amtrak derailment that killed eight people. She has also been the person-in-charge as the FRA rolled out its much anticipated tank car rules earlier this year and continues to face questions about agency oversight of railroads required to implement positive train control.”
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Senators Form Bipartisan Caucus to Reform Rulemaking
Oct 27, 2015 | E&E - Greenwire
By Ariel Wittenberg
Citing what they call an "out of control" regulatory system, senators from both sides of the aisle have joined forces to create a new Senate Regulations Caucus aimed at revamping the rulemaking process.
Formed by Sens. Mike Rounds (R-S.D.), Ron Johnson (R-Wis.), Angus King (I-Maine) and Joe Manchin (D-W.Va.), the new group is meant to unify efforts to revamp federal rulemaking.
All four senators have long been advocates of regulatory reform and have been critics of recent U.S. EPA rules setting stricter standards for ozone as well as the agency's Clean Power Plan.
In May, Rounds introduced a resolution calling on House and Senate lawmakers to create a joint committee to review regulations crafted by federal agencies. That committee would also be charged with designing a congressional process for reviewing federal rules (E&E Daily, May 22).
"With more than 1 million federal regulations on the books today, the need for a common sense approach to address unneeded, outdated and unnecessary federal regulations is as important as ever," Rounds said in a statement today.
King, who sits on the Senate Homeland Security and Governmental Affairs Committee, has been working on a bill that would set up an independent commission to review agency regulations that already have been enacted. The nine-member panel established under the bill would be charged with recommending regulations that should be repealed (E&E Daily, Oct. 8).
"With thousands of new regulations taking effect every year, it's far past time that Congress got a better handle on the regulatory system that impedes American businesses and hampers vital growth and innovation," King said in a statement. "The Senate Regulations Caucus can lead that effort and spearhead an overhaul of ineffective, duplicative, or outdated regulations so that businesses in Maine and across the country can do what they do best -- create jobs and grow the economy."
Johnson, who chairs the Homeland Security and Governmental Affairs Committee, has been supportive of King's role. The panel passed four other regulatory reform bills earlier this month that would require agencies to perform more retrospective reviews of rules and provide more public notice of rulemaking initiatives, among other things (E&E Daily, Oct. 8).
"Unfortunately, Washington is all about addition," Johnson said in a statement. "As a result, layer upon layer of regulation has built up over the years that significantly hampers economic growth and success. Easing the burden of this regulatory burden has been one of my top priorities since coming to the Senate. I'm proud to be part of this bipartisan effort to identify commonsense regulatory reforms. For my part, I will earnestly concentrate on areas of agreement that unite us and that can lead to real results."
Manchin has joined legislative efforts to stop rules from being implemented, most recently co-sponsoring a bill in the Senate to stop U.S. EPA from enforcing its newly tightened ozone limit (E&E Daily, Oct. 7).
He said in a statement today that his state has "seen firsthand how federal regulations can stifle industry and destroy jobs."
"It is past time to significantly reform the federal regulatory process and reduce unnecessary red tape for job creators," Manchin said. "I'm truly proud to work with my colleagues from both parties to address regulatory reform and create a balance between beneficial federal regulations and a thriving job market."
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Congressional Review Act Effort Launched in Both Chambers
Oct 27, 2015 | E&E - Greenwire
By Jean Chemnick
Senate opponents of U.S. EPA's power sector rules have joined their House counterparts in using the Congressional Review Act to target them.
Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Joe Manchin (D-W.Va.) introduced the resolution, S.J. Res. 23, to veto EPA's new power plant rule, while Sens. Shelley Moore Capito (R-W.Va.) and Heidi Heitkamp (D-N.D.) sponsored a resolution S.J. Res. 24, to kill the Clean Power Plan for existing units.
Both resolutions have a list of co-sponsors that is nominally bipartisan, but Manchin is the only Democrat who appears on both. Heitkamp is not a co-sponsor of the resolution to knock down EPA's mandate that new coal-fired power plants use carbon capture and storage to reduce a share of their emissions.
The North Dakota Democrat said in a statement that the rule is "totally unworkable as written for North Dakota's utilities and regulators without causing severe reliability issues and massive rate increases."
Heitkamp told reporters last night that EPA does not take into account the prevalence of lignite in her state's power mix. North Dakota would need more flexibility than the rule now allows, she said.
"I believe when they tell me it's virtually impossible to meet these deadlines," she said.
The resolutions have 47 and 48 co-sponsors, respectively, putting them within striking distance of the simple majority of the vote needed to clear the Senate. Since resolutions by Rep. Ed Whitfield (R-Ky.) are certain to clear the House, a few senators will decide whether resolutions to scuttle President Obama's flagship achievements on climate change arrive on his desk just before Thanksgiving (E&E Daily, Oct. 27).
The president would be sure to veto them, however, and neither chamber of Congress has the votes to override -- so it is certain that the resolutions will not go into effect.
But the timing is intended to embarrass Obama just as the State Department prepares to send officials to Paris to negotiate an international deal on emissions. The Clean Power Plan is the core of the White House's pledge that the United States will cut emissions between 26 and 28 percent below 2005 levels by 2025.
McConnell said on the Senate floor this morning that last week's publication of the rule in theFederal Register "does not represent an end, but a beginning."
"It's the beginning of a new front to defend hardworking middle-class Americans from massive regulations that target them," he said. "That front is opening here in Congress, and it's opening across the country as states file lawsuits and governors stand up for their own middle-class constituents."
Environmentalist supporters of the rules, meanwhile, pledged to fight to ensure that the CRA resolutions do not clear the Senate. There are a handful of Democrats and Republicans who could be swing votes, though Sen. Kelly Ayotte (R-N.H.) seemed to take herself off that list over the weekend when she endorsed the Clean Power Plan (Greenwire, Oct. 26).
Melinda Pierce of the Sierra Club said activists in states with moderate senators and House members of both parties would keep up a campaign of in-district meetings, volunteer phone banks, and paid and earned media to press them to oppose the CRA efforts. Republican senators would be a special focus.
"We feel much more optimistic about our ability to keep Democratic swings on board with the president's Clean Power Plan," she said.
With Ayotte presumably off the list of possible supporters of either resolution, the other Republican swing votes are Republican Sens. Susan Collins of Maine, Mark Kirk of Illinois and Rob Portman of Ohio. None of the three co-sponsored the resolutions. Collins, who acknowledges man-made climate change, released a statement in August that stopped just short of endorsing the Clean Power Plan. Kirk and Portman have more mixed voting histories that include some opposition to past EPA air rules.
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EPA Protects People by Enforcing the Law
Oct 27, 2015 | The Hill - Congress Blog
By Gina McCarthy
America has come a long way in protecting public health and the environment over the past 45 years. Since 1970, we've cut air pollution by nearly 70 percent, while our economy has tripled in size. America’s environmental laws have provided a solid foundation for success, but they’re only part of the equation. Without resources to work hand-in-hand with state, local, and tribal partners to enforce these laws, progress isn’t possible. Laws talk the talk; but enforcement walks the walk.
When rules under the Clean Air Act, Clean Water Act, and other laws are not followed, people suffer. Neighborhoods become polluted, livelihoods become threatened, and the health of kids and families are put at risk.
Enforcement programs keep dangerous illegal activity in check. They hold violators accountable and deter bad actors. They level the playing field for businesses that play by the rules. And most of all, they provide security and protection to people across America, who depend on clean air, water, and land to live healthy, productive lives.
Responsible businesses across the country prove every day that complying with the law actually protects their bottom lines. But even with clear rules and standards, major violations still occur. That’s why EPA’s enforcement office is essential.
Volkswagen, the world’s largest automaker, recently admitted that some of its diesel cars are emitting up to 40 times the allowable amount of nitrogen oxide. Companies that cheat on pollution control requirements threaten the health of children and the elderly. They violate consumer trust. And they skew the playing field for businesses that follow the law. Working with the California Air Resources Board, we are investigating this very serious matter and are committed to making sure that all automakers play by the rules.
Years ago, EPA inspections uncovered piles of hazardous waste that were improperly managed by one of the world’s largest fertilizer companies. EPA, in partnership with the affected states, began building a strong case for legal action. Earlier this month, a settlement was reached requiring the company, Mosaic, to set up a trust that will total $1.8 billion to properly dispose of nearly 60 billion pounds of hazardous waste at facilities across Florida and Louisiana. Mismanaged waste can pose serious risks to groundwater and waterways. That’s why we have Federal laws like the Resource Conservation and Recovery Act, and why we must remain vigilant in tracking waste from cradle to grave. With the Mosaic settlement, communities are gaining security, piece of mind, and protection over the long term.
Also this month, EPA along with states, the Justice Department, and other federal agencies, reached a $20 billion settlement with BP over the 2010 Deepwater Horizon oil spill – a tragedy that ended lives and inflicted damage along the Gulf Coast. This is the largest settlement with a single entity in U.S. history. But more importantly, nearly all of the settlement money will be put to work strengthening the Gulf Coast through a 15-year restoration plan. The remainder will go to a fund that pays for responses to future spills. Thanks to a dogged enforcement effort by EPA and partners, BP is being held accountable for what the District Court judge deemed “gross negligence”, and Gulf communities will directly benefit from a long-term, well-funded plan to restore and rebuild.
That’s what justice and accountability look like.
Environmental enforcement promotes cross-sector collaboration with affected communities and it unlocks opportunities to innovate. EPA is pushing forward on a range of advanced monitoring technologies that could both help entities stay in compliance with the law, and make it easier to identify violators. Our economy benefits when American businesses compete to create these technologies—whether it’s infrared cameras that detect emissions leaks, fence-line monitors that track air quality around refineries in real-time, or online data portals that allow anyone to track the pollution status of facilities near them.
The bottom line is, strong standards are a key step—but it’s our ability to implement those standards that turns promises of protection into a healthy reality for Americans. That’s where the rubber meets the road.
Only when we invest to make sure our standards are well understood and fully met, can we ensure that our children’s health is protected, environmental resources are sustained, and responsible businesses get a fair shot at success.
Recent high-profile cases only reinforce that America still needs an environmental watchdog with grit and teeth.McCarthy is the 13th administrator of the Environmental Protection Agency, serving since 2013.
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Heitkamp to Support McConnell Resolution Opposing Climate Rule
Oct 27, 2015 | Politico Pro - Whiteboard
By Andrew Restuccia
Sen. Heidi Heitkamp plans to vote for Senate Majority Leader Mitch McConnell's disapproval resolutionaimed at overturning EPA's final climate regulation for new and modified power plants even though she did not sign on as an original co-sponsor of the measure, an aide said today.
Heitkamp, a Democrat, is co-sponsoring a separate disapproval resolution led by Sen. Shelley Moore Capito to kill the EPA's climate rule for existing power plants. A Heitkamp aide said she co-sponsored that resolution because the existing plant rule "would have the most immediate and direct impact on energy reliability and affordability for North Dakotans and would potentially impact thousands of workers in her state who keep the lights on throughout the Upper Great Plains."
But the aide clarified in an email to POLITICO that Heitkamp is "also supportive" of McConnell's resolution and would vote in favor of it.
That means both McConnell and Capito's resolutions have support from 49 senators, just shy of the simple majority required. But even if the resolutions pass, they will be vetoed by President Barack Obama and lawmakers do not have enough support to override the veto.
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Noise Trumps Logic in Clean Power Plan Lawsuits
Oct 27, 2015 | The Hill - Contributors
By Denise Grab and Richard L. Revesz
Last Friday, moments after the Environmental Protection Agency (EPA) formally published its Clean Power Plan, which regulates carbon dioxide emissions from the power sector, opponents of the rule filed suit to strike it down, and, in the meantime, to stay its application. In the press and in last week's congressional hearing (disclosure: one of us was a witness at this hearing), the EPA's critics continued to make unwarranted claims about overreach, economic catastrophe and unconstitutionality. They're hoping that this clamor will provide cover for state policymakers who want to resist complying with the rule.
But these claims should be taken for what they are: noise. The EPA's flexible, cost-minimizing approach to reducing carbon pollution from existing power plants is consistent with the Clean Air Act and the Constitution. It is not, as opponents argue, an unprecedented approach that will wreck our economy, but rather just another example of the EPA doing its job to ensure that polluters account for the cost of their pollution, resulting in substantial net economic benefits to the public.
The industry groups and fossil-fuel-heavy states attacking this rule want to preserve the status quo, which ignores dangerous carbon pollution and the costly threat of climate change. Since Congress amended the Clean Air Act in 1990, every president — whether Democratic or Republican — has worked to modernize flawed policies from the 1970 Clean Air Act that allow excessive pollution from existing power plants. The Clean Power Plan is the latest step in this methodical process. Along the way, industry opponents have sued to stop nearly every new environmental regulation, but they've failed to halt this progress. Opponents of the Clean Power Plan have already sued twice before to strike down this rule, only to have their challenges thrown out as premature. This time, judges will hear their arguments, but the arguments hold little legal merit.
Those challenging the rule will make complicated claims about EPA overreach, playing fast and loose with the language of the Clean Air Act. When Congress passed the 1990 amendments to the act, the House and Senate used different language in the section that governs regulations for existing power plants. Both amendments were approved by both chambers and signed by President George H.W. Bush, and both amendments appear in the U.S. Statutes at Large, making them both the law of the land.
Opponents of the rule claim, without plausible support, that the Senate amendment should be ignored. They cite the actions of an obscure bureaucrat who included only the House-originated amendment in the U.S. Code. But the Supreme Court has made clear that allowing an action of this sort to supplant the will of Congress and the president would violate the Constitution. Furthermore, Clean Power Plan opponents argue that the ambiguously worded House amendment should be interpreted in a specific manner that disallows the rule. But legal precedent dictates that the EPA should have deference to interpret a statutory ambiguity of this sort. Opponents are asking the courts not only to ignore this precedent, but also to overlook several other interpretations of the text in favor of the single reading they choose.
Lawsuits against the rule will also claim that the Clean Power Plan's flexible design, which allows states to reduce emissions through any manner they choose, is invalid because the EPA considered pollution reductions "outside the fenceline" of power plants when setting emissions-reduction targets. But the plan does not require any power plant to reduce emissions that it cannot control. Moreover, the rule focuses on reducing emissions from the production of electricity, not just electricity from coal. Decades of agency practice have shown that EPA performance standards can involve shifting from a dirtier method of producing a product to a cleaner method of producing the same product. Consistent with this longstanding approach, the EPA rule requires a shift from more carbon-intensive to less carbon-intensive ways of producing electricity.
With the costs of natural gas and renewables falling significantly, dozens of outdated coal plants have been closing independently of the Clean Power Plan. The energy sector is evolving rapidly, and the EPA designed this rule so that states can harness these changes and reduce emissions cost-effectively. Far from hampering our economy, the plan will create incentives for energy efficiency programs that save consumers money and boost the clean energy sector, which continues to create jobs around the country.
Conservative politicians and coal companies also regularly claim this rule is unconstitutional. Their most frequent argument is that the rule runs afoul of the 10th Amendment's prohibition against the commandeering of state institutions by the federal government. This flawed argument would also invalidate many of the core provisions of the Clean Air Act, which have saved hundreds of thousands of lives over a 45-year period, not just the section on which the Clean Power Plan rests. The standard approach of the Clean Air Act is for the federal government to establish statewide pollution reduction requirements, and for states to then allocate reductions among sources in their jurisdiction. And if a state declines to take action, the federal government imposes requirements directly on polluters within the state. As a result, no state institution is commandeered. This is textbook "cooperative federalism," not some unconstitutional invention of the Obama administration.
It is no surprise that those with a financial stake in protecting retrograde policies are grasping at straws to fight this rule in the courts. But it is telling that most electric utilities, and many major corporations, are embracing the plan rather than suing to stop it. The United States and other countries are making significant progress toward cleaner energy, and the Clean Power Plan has helped pave the way for a potential international climate change agreement in Paris this December. The legal and public battles against this rule are a cynical attempt to undermine this progress.
Grab is a senior attorney at the Institute for Policy Integrity at New York University School of Law. Revesz is dean emeritus and Lawrence King Professor of Law at New York University School of Law, and director of the Institute for Policy Integrity. He is the co-author of the forthcoming bookStruggling for Air: Power Plants and the "War on Coal."
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D.C. Circuit Utility MACT Decision Will Test Handling Of Flawed EPA Rules
Oct 27, 2015 | InsideEPA
By David LaRoss
A former top Department of Justice (DOJ) official says the U.S. Court of Appeals for the District of Columbia Circuit’s impending decision on whether to vacate EPA’s utility air toxics rule after the Supreme Court found flaws in how EPA crafted it will be a major test for how the D.C. Circuit handles rules found partially, but not fully, unlawful.
Thomas A. Lorenzen -- a former assistant chief of DOJ’s environmental defense section -- said during an Oct. 15 Environmental Law Institute (ELI) panel discussion that the appellate court’s long-awaited decision poses “an interesting test” for when the D.C. Circuit will remand a rule to the agency for revision without vacatur. The Supreme Court faulted EPA for not considering costs in deciding to craft the rule, but did not weigh in on the merits of the rule.
Unlike most situations where EPA seeks to keep a rule in effect during remand, Lorenzen said EPA’s finding that the rule was “appropriate and necessary” that the Supreme Court struck down is a “threshold question for the rule,” meaning that if EPA cannot satisfy the high court’s mandate the entire rule would have to be withdrawn. That differentiates the case from other situations where courts overturn a more limited aspect of a contested rule, he said.
EPA in filings in the ongoing D.C. Circuit litigation over the utility maximum achievable control technology (MACT) air toxics rule is urging the court to reject calls from some states and industry groups to vacate the regulation. Critics argue that rule is now unlawful as the high court scrapped the basis for the appropriate finding, but the agency counters that the D.C. Circuit routinely leaves flawed rules in place while EPA amends them.
The high court’s 5-4 ruling June 29 in Michigan v. EPA found that the agency erred by not assessing costs in its initial finding that a utility MACT was appropriate and necessary under the Clean Air Act. However, it did not say what the ultimate fate of the rule should be, nor did it say whether the rule was flawed on its merits.
In Michigan, the justices rejected EPA’s reading of the air law that costs should only be considered when setting a specific standard, which speakers on the ELI panel said could signal a shift in how they will apply the landmark 1984 Supreme Court deference ruling Chevron v. Natural Resources Defense Council. UnderChevron, judges are supposed to defer to an agency’s “reasonable” interpretation of ambiguous statutory text even when other interpretations are valid, based on the principle that each agency is expert in the areas it regulates.
EPA is now asking the D.C. Circuit not to vacate the utility MACT, arguing instead that it should remain in effect while the agency crafts a new appropriate finding that includes cost considerations. EPA has argued that it expects to find that the rule as it exists today is still justified even when costs are considered.
Several states and industry organizations, however, argued in a Sept. 24 joint brief and subsequent Oct. 21 response brief that the Michigan decision requires invalidating the entire rule, in part to avoid forcing industry to comply with its $158 million annual recordkeeping mandate.
Remanded Regulations
But ELI panelist and industry attorney Shannon S. Broome said that argument appears less likely to succeed than it would have in past years.
“The norm is supposed to be that regulations are vacated, but now we are increasingly seeing, in the D.C. Circuit, at least, that they are not vacated” but rather remain in effect during a remand, Broome said.
The arguments over vacating the MACT follow a ruling by a D.C. Circuit panel that backed EPA’s request for remand without vacatur of another air rule. In that suit, Conservation Law Foundation (CLF), et al. v. EPA, the court sided with EPA on the disposition of its rule granting a 50-hour exemption from air emissions regulations for reciprocating internal combustion engines (RICE) generators used in “non-emergency” demand response programs.
Following a separate panel’s decision to strike down a related RICE exemption, EPA sought remand without vacatur of the 50-hour rule, which the CLF court granted in an unsigned Sept. 23 order despite claims by environmentalists and their allies that only a complete vacatur would be appropriate.
Members of the ELI panel said the high court has recently focused on exceptions to Chevron, which could have major implications for its rulings on EPA’s statutory authority to craft its high-profile rules on power plants’ greenhouse gas (GHG) emissions, and the reach of the Clean Water Act (CWA).
Along with its Michigan decision, the high court also read Chevron narrowly in King v. Burwell, where it agreed with the Obama administration’s reading of the health care law in a 6-3 decision issued June 25 -- but pointedly declined to defer to regulators’ views and instead reached the same conclusion through its own analysis of the text.
Justices Antonin Scalia, Samuel Alito and Clarence Thomas also penned opinions in those cases and inPerez, et al., v. Mortgage Bankers Association, et al., dealing with agencies’ discretion to revise their interpretations of rules, that cast doubt on the Chevron framework.
Thomas in particular argued in his Perez concurrence that it violates the Constitutional separation of powers for judges to defer to agencies’ interpretation of the law rather than to reach their own conclusions.
At the ELI event, panelist Aditi Prabhu, an attorney with EPA’s Office of General Counsel, said, “I don’t think agencies are that worried about Chevron disappearing” because none of the other justices have signaled they might consider that step.
“There are no indications that there are really enough votes to overturn Chevron right now. Instead, what’s happening appears to be that Chevron is being chipped away. Recent decisions have either applied Chevronreluctantly or invoked exceptions,” she said.
How those decisions apply to EPA will be tested in the near future when the justices consider its CWA jurisdiction rule and the power plant GHG standards, known as the Clean Power Plan, panelists said. The CWA rule is already the subject of a host of suits in federal circuit and district courts thanks to confusion over provisions of the water law that assign review of some rules to appellate court but not others.
Decisions on which court should hear the cases are expected to reach the Supreme Court -- possibly in the near future, since the 6th and 11th Circuits are each poised to issue rulings on their authority over such challenges this fall.
Auer Deference
Meanwhile, critics of the Clean Power Plan are developing legal strategies for challenging that set of rules, with an eye toward a swift ruling on the agency’s authority to regulate the power sector’s GHG emissions at all.
Panelist Pamela Campos, an attorney for the Environmental Defense Fund, said environmentalists also expectChevron to remain in place but be treated more narrowly. “We should continue to expect that Chevrondeference is going to be the norm, but also continue to assess whether there are risks that would lead the justices away from a traditional application” of the precedent, she said.
Campos added that chief among those “risks” are “corner-case facts -- extreme, compelling, hit-you-in-the-gut facts that may frame and anchor the justices’ ideas as they turn to whether Congress intended to delegate interpretive authority to the agency and then the reasonability of the interpretation.”
Panelists also discussed justices’ critiques of deference to agencies on their readings of rules, as established in the 1997 case Auer v. Robbins. Scalia, Alito and Chief Justice John Roberts wrote in dissents to the 2013 CWA case Decker v. Northwest Environmental Defense Center that they would consider overturning Auer, and Alito and Thomas in Perez concurrences laid out legal arguments for doing so.
Scalia in particular argued in his Perez and Decker opinions that Auer encourages agencies to write vague rules they can interpret as they see fit. But during the panel discussion, Aditi sought to counter that claim, saying that agencies do not depend on Auer deference in writing regulations, in part because it would be difficult or impossible to reliably write rules vague enough to re-interpret under Auer but not so vague that they will be rejected as unworkable.
“Clear regulations increase compliance -- regulations can only be enforced if they’re clear. . . . and there’s the boundary on what counts as an interpretation and not a completely new legislative rule,” she said.
Broome agreed with Aditi’s argument. While industry has problems with how agencies conduct rulemakings, “I don’t think agency staff are sitting there when they’re writing rules saying, ‘Oh, let’s make this as vague as possible so we can screw somebody in an enforcement action 10 years down the line,’” she said.
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Okla., Texas Show Signs of Veering from 'Just Say No' Approach
Oct 27, 2015 | E&E - Energywire
By Elizabeth Harball and Edward Klump
Many right-leaning states have been fighting U.S. EPA's Clean Power Plan since it was proposed, and some of the rule's most ardent opponents, including Texas and Oklahoma, signaled they might do nothing to comply. Anger was especially apparent last week as 26 states sued in an attempt to halt the regulation.
Even so, some officials from states that embraced the "just say no" approach -- encouraged by hard-liners like Senate Majority Leader Mitch McConnell (R-Ky.) -- appear in recent weeks to be giving serious thought to what meeting EPA's climate targets might look like. Given the threat that EPA will impose a federal plan on states that don't submit at least an initial plan or update by early September 2016, officials from both Texas and Oklahoma have gone on the record to discuss potential compliance options.
And when pressed, regulators from Ohio and New Jersey also wouldn't say their states were refusing to submit a state compliance plan to EPA.
This gives credence to EPA's claim that most states are already working on complying with the Clean Power Plan, which aims to slash carbon dioxide emissions from the U.S. power sector by 32 percent by 2030 compared with 2005 levels. At the very least, states are examining the implications of seeking a two-year extension.
"Even those states that are going to sue, when you talk to their air quality person, they've clearly been having lots of conversations and are thinking through 'If we do need to comply, how would we do it?'" Malcolm Woolf, senior vice president for policy and government affairs at a business association called Advanced Energy Economy, said after attending two separate meetings of state environmental regulators last week in Washington, D.C.
"Politicians make rhetoric about the lawsuits, but at some point, they're going to turn to their professional staff and say, 'What's plan B?'" Woolf said. "Professional staff are getting ready for that."Keeping the feds at bay
Regulators from Oklahoma stand by the official line that the state is not going to write a compliance plan. Oklahoma Secretary of Energy and Environment Michael Teague reiterated this stance in a brief interview with E&E Publishing in Washington, D.C., last week.
But moments earlier, during a panel discussion held before an audience of state air regulators and EPA officials, Teauge seemed to indicate otherwise. He acknowledged that while states are challenging the rule in court, "we don't know what the answer is going to be."
"I will tell you that every one of the generators, co-ops and public power authorities in Oklahoma have come to us and said, '"Please, God, don't let us get FIPed,'" Teague said, meaning that the state's electric utilities are hoping to avoid a situation where EPA imposes a federal implementation plan (FIP) on the state -- an inevitability if Oklahoma doesn't submit an initial plan in September 2016.
"We are not going to have a FIP in Oklahoma," Teague said.
Teague, who was appointed to Gov. Mary Fallin's (R) Cabinet in 2013, said that based on the state power providers' current trajectories, Oklahoma is "pretty well-positioned" to comply with the rule, something utilities like OGE Energy Corp. claimed previously due to a series of planned coal plant closures.
Teague then outlined specific details of what an Oklahoma state plan to comply with the EPA rule might be. He floated the idea of mass-based carbon trading and a regional compliance plan, approaches recently deemed to be cost-effective by the Southwest Power Pool, a regional transmission organization that includes Oklahoma in its operations (Energywire, July 28).
Teague said he had recently visited Little Rock, Ark., to talk to the grid operator about compliance options.
"We are in think-tank mode," Teague concluded, adding, "I think markets probably are the direction that we'll head, but again, if you say 'mandatory cap and trade' in the state of Oklahoma, you'll probably get a very different response than you do in California."
Teague's words stand in contrast with an executive order Fallin issued in April, which calls the Clean Power Plan "a clear overreach of federal authority" and prohibits the Department of Environmental Quality from even "beginning efforts" to develop a state plan.Loophole in a 'just say no' order?
However, some in Oklahoma think Fallin's executive order may not limit state compliance with the EPA rule as effectively as legislation floated earlier this year would have.
S.B. 676, which Fallin vetoed when she issued the executive order, would have given state Attorney General Scott Pruitt (R) the power to reject the state's compliance plan. Some observers say the governor effectively maintained the power to reverse her executive order and write a state plan, if necessary.
"If you follow anything about the general flow of politics in Oklahoma ... the attorney general has been one of the most strident attorneys general in terms of opposition to federal mandates, period, but especially this," said Richard Johnson, who chairs the political science department at Oklahoma City University.
When the Clean Power Plan was officially published last week, Pruitt immediately filed a challenge at the U.S. Court of Appeals for the District of Columbia Circuit.
Johnson said, "Whether you look at this as a rivalry for credit from the very extreme right wing, or it's just a good policy decision from the governor's point of view not to involve the attorney general at this point -- I think you could make an argument for either one of those things."
But the politics in the state suggest Oklahoma won't be publicly announcing its compliance steps in the near future. Utilities in the state say they're taking a "wait and see" approach and haven't publicly urged Fallin to shift her stance.Looking 'at all options'
As it files suit and talks of economic damage, Texas also is mulling just how to respond to the Clean Power Plan.
The Texas Commission on Environmental Quality (TCEQ) is "looking at all options" as it considers legal and long-term implications, according to Chairman Bryan Shaw. He said TCEQ will study the issue and provide information to Texas Gov. Greg Abbott (R).
Under the Clean Power Plan, Texas would need to cut its power-sector carbon emissions rate about 33 percent below 2012 levels by 2030. In lieu of a rate-based plan, a state can look at a mass-based approach with a cap on emissions.
Shaw said a mass-based approach could have short-term advantages but added that it might affect future economic growth.
Another avenue could be to develop a state plan that includes only actions "inside the fence line," or just at power plants. But Shaw cautioned that potential improvements to generators wouldn't be easy to accomplish.
Members of the Public Utility Commission of Texas (PUC) also are tracking the carbon rule.
In an interview earlier this month, Commissioner Brandy Marty Marquez of the PUC said she viewed creation of a state plan as a waste of time and energy.
Mike Nasi, an Austin, Texas-based attorney and a prominent critic of the Clean Power Plan, said the best route could include seeking a two-year extension even as the state fights the rule in court.
"It is incumbent upon every state to seriously consider that option, given that it's all about how do you preserve your legal options and also not waste state resources," Nasi said.
EPA has cited three criteria a state would need to meet in seeking an extension next year: identifying approaches under consideration, including progress made to date; an explanation for why more time is needed; and demonstration of public engagement.
"By September of next year, we just need to articulate what process we are using," Nasi said. "We can come up with something potentially that can engage the public sufficient to make EPA satisfied."Political ping-pong
Environmental interests have argued that Texas needs to work to build its own plan. A collection of environmental groups, including the Sierra Club, Public Citizen and Environment Texas, issued a statement Friday to express disappointment with Texas leaders and said they would work with the U.S. government on a plan.
"If political leadership ever allows state agencies to construct a real state-based plan for Texas, we welcome the opportunity to work with them," the groups said.
Ken Paxton, Texas' Republican attorney general, spoke Friday on a conference call about a legal challenge to EPA's climate rule that now includes more than two dozen states.
"We're pretty confident that we're going to get a stay," Paxton said.
And what about that idea of submitting a plan based only on what's "inside the fence line"?
"That option would seemingly not be smart in the final rule," Nasi said, "because it's more than you need to do and it actually sounds like you're affirmatively saying you will never do anything more, which EPA could use as a basis to actually issue a federal plan."
Texas and Oklahoma aren't alone in fighting the EPA climate rule while quietly considering writing a state plan. Asked in September whether New Jersey will write a plan, Bob Considine, a spokesman for the New Jersey Department of Environmental Protection, said in an email, "Right now the state is focused on its administrative and legal options. ... We will determine later whether we will consider drafting a plan."
And asked the same question after a House Science, Space and Technology subcommittee hearing in September, Craig Butler, director of Ohio's Environmental Protection Agency, responded, "We're still looking at the rule."
"What I can't tell you now is how or if the EPA in the state of Ohio will develop a plan," Butler said. "It's just unclear at this point."
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EPA to Propose Reporting Rule for Natural Gas Plants
Oct 27, 2015 | E&E - Greenwire
By Amanda Reilly
U.S. EPA plans to propose a regulation requiring natural gas processing plants to report releases of toxic chemicals to the air, water and soil, the agency told environmentalists in a letter released today.
Gas facilities would be required to report releases under the Toxics Release Inventory, EPA said. But the agency rejected requests by environmentalists to require reporting at wells, compressor stations, pipelines and small facilities with fewer than 10 employees.
The Environmental Integrity Project, which released EPA's Oct. 22 letter, applauded the agency's decision.
"The oil and gas industry releases an enormous amount of toxic pollutants every year, second only to power plants in emissions," said Adam Kron, an attorney for the group. "With this decision, EPA is taking an important step in the right direction."
Through the Toxics Release Inventory, industrial facilities are required to report data on toxic chemicals released each year or managed through recycling and treatment. EPA collects the data and releases an annual report on emission trends.
Large manufacturing, metal mining, electric power generation, chemical manufacturing and hazardous waste treatment facilities are all required to report under the program.
Environmentalists have long urged EPA to extend the reporting requirements to oil and gas operations.
The Environmental Integrity Project was among almost 20 groups that petitioned in 2012 to have EPA add the oil and gas industry to the inventory. In January, the groups filed a lawsuit in the U.S. District Court for the District of Columbia over EPA's failure to respond to the petition.
The letter represents EPA's formal response to the 2012 petition.
EPA Administrator Gina McCarthy told the groups that the agency determined through an analysis of chemical data, plant operations and reporting thresholds that natural gas processing facilities likely meet the criteria to be included in the program.
"The addition of natural gas processing facilities to TRI would meaningfully increase the information available to the public," McCarthy wrote, "and further the purposes" of the Emergency Planning and Community Right-to-Know Act.
According to EPA, gas processing facilities manufacture, possess or use 25 chemicals for which reporting is required through the Toxics Release Inventory. Among those pollutants are xylenes, formaldehyde and benzene, all of which are linked to public health problems.
There are about 520 natural gas processing facilities in the United States; EPA says more than half would meet TRI reporting thresholds.
EPA didn't give a timeline but said it would propose a rulemaking to add natural gas processing plants to the inventory.
"EPA's decision today will help hold this industry accountable," said Aaron Mintzes, policy advocate for Earthworks. "While we prefer EPA require reporting industrywide, this step will provide the public a better understanding of the toxic contaminants in their communities."
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Southern Kansas Sees Sudden Spike in Earthquakes
Oct 27, 2015 | Washington Post
By Ryan Schuessler
A sudden spike of earthquakes in southern Kansas is raising eyebrows in the region, where there have been more earthquakes in the past two weeks than there were in the years between 1990 and 2013.
As of Oct. 26, there have been 52 earthquakes in Kansas since Oct. 15, most of a magnitude around 2.0 or 3.0. According to the Kansas Geological Survey, there were just 19 earthquakes in the state between 1990 and 2010. There were no recorded earthquakes in 2011 or 2012. The number of earthquakes in the state jumped from four in 2013 to 817 in 2014, according to the U.S. Geological Survey.
“In a typical year prior to 2013, we might have picked up one, two, three earthquakes,” said Rex Buchanan, interim director of the Kansas Geological Survey at the University of Kansas. “Obviously we’ve outdone that dramatically.”
All of the state’s earthquakes over the past stretch occurred in just two southern counties that run along the Kansas-Oklahoma border, raising questions about the quakes’ ties to hydraulic fracking in the region – although industry disputes the connection.
During the fracking process, a mixture of saltwater, sand and chemicals is blasted into the ground, breaking up rock formations to release oil and natural gas.
In 2000, there were just under 2,000 permitted wells in Kansas. By 2014, that number had grown to more than 7,000.
Fracking has been going on in Kansas since the 1940s, but the recent innovation of horizontal drilling – instead of vertical – requires more water. The wastewater is injected into disposal wells – “not exactly where it came from,” Buchanan said. He added that the earthquakes are likely being caused by the wastewater disposal wells, not the act of drilling itself.
“In Kansas, you produce a lot more saltwater than you do oil in the oil and gas production process,” Buchanan said. “We’re dealing with much greater volumes of water than ten years ago.”
A 2015 study from Stanford researchers came to similar conclusions. The study found that a spike in earthquakes in Oklahoma was caused by wastewater disposal wells, not drilling.
After a comparatively quiet summer, seismic events have picked back up in south-central Kansas. The largest quake over the past weeks occurred near the town of Caldwell in Sumner County where, on Oct. 27, there was a 3.6 magnitude earthquake.
In that same time period, there were just 11 earthquakes in the bordering counties to the south in Oklahoma.
Buchanan, who served on an earthquake task force appointed by Kansas Governor Sam Brownback, testified to state legislative committees earlier this year about fracking and earthquakes. In March, the Kansas Corporation Commission, the state agency that regulates the oil and gas industry, ordered hydraulic fracking operators in Harper and Sumner counties to reduce the amount of wastewater injected into disposal wells.
It is too early to tell if that move has any impact on the frequency of the earthquakes, Buchanan said.
“Linking a specific disposal well to a specific earthquake is very difficult,” Buchanan said. “Certainly we’ve got big disposal wells on our side of the border, and there are big disposal wells on the Oklahoma side. Finding how much influence with what’s happening in Oklahoma in terms of seismicity in Kansas, and vise versa, has been a challenge.”
Indeed, one representative of the industry challenged the proposed linkage.
“The likelihood that induced seismic events will occur in properly permitted and operated [disposal wells] is very small,” Edward Cross, president of the Kansas Independent Oil & Gas Association, said in an e-mailed statement. “Too often, the mere presence of nearby oil and gas wells or [disposal] wells results in allegations that they are the source.”
Cross added that seismic activity fluctuates naturally, and that it is too soon to tell if there is a relationship between wastewater disposal and seismic activity.
Tiffany Hartson, city clerk for the town of Harper, said she hadn’t felt any of the earthquakes this week, but that residents have noticed the increase over the past few years.
“A lot of people went out and got earthquake insurance they didn’t have before,” Hartson said. “It’s not really the topic of conversation. I don’t know if it’s because we’ve become so used to it, or what.”
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Industry Objects to EPA Updates to Regional Consistency Regs
Oct 27, 2015 | E&E - Greenwire
By Amanda Reilly
Industry is raising concerns about a U.S. EPA bid to provide for exemptions from federal court decisions on air rules.
EPA released the proposal to amend its "regional consistency" regulations in August. The proposal stems from a 2014 court ruling overturning a memorandum in which EPA stated it would not follow a court decision on air permitting outside the 6th Circuit.
In public comments to the agency, the refining and manufacturing sectors charge that EPA's proposal is an illegal attempt to avoid further negative court rulings on the permitting issue.
They say EPA's proposal would afford a competitive advantage to businesses in areas that are subject to less stringent standards.
"It is bad policy for regulatory agencies to give some companies an advantage over other companies, based solely on where those companies happen to be located," the Texas Pipeline Association said.
In 2012, the 6th U.S. Circuit Court of Appeals overturned a decision by EPA Region 5 to consider a natural gas plant and associated wells operated by Summit Petroleum Corp. as a single source of pollution for permitting.
The circuit court found that EPA couldn't consider the plant and wells as one air pollution source under the Clean Air Act's operating permit program if they weren't physically next to each other.
In response to the ruling, EPA issued a memo known as the "Summit Directive" that stated it would not follow the court decision outside the 6th Circuit.
Whether a facility's different operations are considered in aggregate matters as to whether that facility is considered a major source of pollution under the Clean Air Act. By law, major sources must obtain and renew operating permits that limit air pollution -- an often costly and time-consuming process.
The National Environmental Development Association's Clean Air Project, an industry coalition that includes Exxon Mobil Corp., Koch Industries Inc. and Phillips 66 Co., successfully challenged EPA's Summit Directive. Last year, the D.C. Circuit Court of Appeals overturned the policy.
At issue now: EPA's August proposal to update 1980 regulations that require agency regional offices to implement the Clean Air Act in a consistent manner nationwide. The proposal would allow EPA to provide exemptions from those regulations to accommodate court decisions that apply locally or regionally (Greenwire, Aug. 6).
The agency says that if the proposal would have been in place at the time of the 2012 decision, regions "would have known that this type of permit-specific, local and regional decision would only apply in the areas under the jurisdiction of the Sixth Circuit."
Other regions, EPA said, could continue the long-standing practice of considering interrelatedness in permitting decisions.
The Clean Air Project slammed the proposal as EPA's way of ignoring future unfavorable Clean Air Act decisions on the permitting issue.
In a public comment earlier this month, the association said EPA neglected to appeal the 6th Circuit permitting decision to the Supreme Court because it was afraid that the high court would definitively rule against its policy of considering interrelatedness.
EPA also worries, the industry group said, that the D.C. Circuit would overturn an agency rule that sets in stone the practice of considering operations that aren't adjacent as one source for permitting reasons. The D.C. Circuit's rulings apply nationwide.
"What EPA cannot do," the coalition says, "is tell the region and the states to ignore a court's decision altogether because the agency does not intend to appeal the case or amend its regulations or guidance in reaction to a holding that EPA is violating the plain language of its own regulations."
In public comments this month, several industry groups spanning the refining and manufacturing sectors also argued that the Clean Air Act specifically prohibits EPA from adopting "intercircuit nonacquiescence," the legal term for a federal court action that applies only in the area under the jurisdiction of the court.
The statute requires EPA officials to uniformly administer air programs -- in particular, permitting programs.
The language in the Clean Air Act is "clear and unambiguous," wrote a group of owners and operators of electric generating units. "It requires EPA to uniformly implement and enforce the CAA across the country."
EPA, for its part, argues that uniformity requirements written into law apply only to procedures for its regional officers and employees.
Some legal scholars see benefits in intercircuit nonacquiescence because it allows issues to percolate throughout the nation's legal system. The Supreme Court gets the benefit of having different court opinions on the same subject.
The agency has some industry support for its proposal.
The Edison Electric Institute, which represents investor-owned utilities, said it supports EPA's overall aim of fostering predictability about the scope of court decisions.
But the group said EPA should also be required to re-evaluate national policy whenever a court finds it is unlawful. EPA should explicitly tell regional offices to continue following national policy in the wake of court decisions until told otherwise, EEI said.
"EPA's goal of ensuring fairness, predictability and consistency would be undermined if regional offices are given unfettered discretion to choose between a court decision and EPA headquarters," EEI said.
EPA reopened a comment period on the proposal after a request from 16 trade and business organizations for more time. The agency is now accepting comments until Nov. 3.
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Should the Ban on U.S. Oil Exports Be Lifted?
Oct 27, 2015 | New York Times
By Thomas Pyle and Michael Brune
To the Editor:
Re “For Now, Keep the Ban on Oil Exports” (editorial, Oct. 12):
Swapping the oil export ban for renewable energy tax credits, as your editorial suggests, is righting one wrong by replacing it with another. Lifting the outdated ban on oil exports would bolster future American oil production, creating jobs and keeping gasoline prices low in the process.
But swapping the ban for subsidies like the wind and solar energy tax credits is a grave mistake. These handouts wallop Americans twice: They cost taxpayers billions of dollars and raise electricity prices by propping up expensive sources.
My organization has called on Congress to reject any deal that trades lifting the oil export ban for extending handouts to the renewable industry. Lifting the export ban puts American producers on a level playing field with the rest of the world, while ending energy subsidies forces wind and solar companies to stand on their own merits.
THOMAS PYLE
Washington
The writer is president of the American Energy Alliance, a nonprofit advocacy group that supports free-market policies.
To the Editor:
Although lifting the crude oil export ban would be a boon for the oil industry, it would be a blow to America’s wild places, the world’s climate, American jobs and our pocketbooks.
Lifting the ban would mean more drilling and put wild and vulnerable environments like the Arctic National Wildlife Refuge and the Atlantic coast at risk. A change of this magnitude would also mean more oil trains running through our neighborhoods and more pipelines bound to spill into our waterways.
The science overwhelmingly says that in order to prevent the most catastrophic effects of climate change, we must leave dirty fuels in the ground. Lifting the ban will increase the cost of oil, leading to more drilling, further worsening climate disruption.
It’s no secret that Big Oil values dollars more than it does people. Lifting the ban would allow the oil industry to export American jobs and raise prices at the pump.
Rather than using misinformation to betray our environment, our jobs and our wallets, Congress should listen to President Obama’s advice and focus its efforts on freeing our economy from carbon-based fuels. But linking a bad idea, like lifting the export ban, to a good one, like extending tax credits for clean energy, does not make sense.
MICHAEL BRUNE
Executive Director, Sierra Club
San Francisco
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It Isn't 1975, So Why Are We Still Banning Oil Exports?
Oct 27, 2015 | Forbes
By Senator Bill Cassidy and Dillon Weber
In the early 1970s the United States was an oil superpower. Our fields produced over 9 million barrels of oil per day (bbl/d), accounting for more than 15% of the global marketplace. However, our energy consumption at the time still required us to import oil from members of the Organization of the Petroleum Exporting Countries (OPEC) and other nations.
During the Yom Kippur war in 1973 the U.S. supplied arms to our ally and friend, Israel. In retaliation, the Arab members of OPEC placed an embargo on the sale of crude oil to the U.S. and the price for a barrel of oil quadrupled from $3 to $12, creating a broad energy and economic crisis. Families were hard-hit as they coped with long lines to purchase gas, and the economy stagnated. The OPEC embargo was lifted in March of the following year, but decisions made in the aftermath of the crisis are still shaping our nation’s energy policy more than four decades later.
One result was a ban on crude oil exports, implemented in 1975 as part of the Energy Policy and Conservation Act. The ban was meant to reduce or eliminate our reliance on imported crude oil from the Persian Gulf and to protect against another oil crisis. That ban remains on the books today.
Lifting the oil export ban would create a 1% rise in GDP
But 40 years later, the dynamics of the American oil industry have changed—as have the relevant political concerns. The export ban is outdated and fails to account for America’s new and expanding energy industry. Domestic crude production has increased dramatically in the past few years: from 5.3 million bbl/d in 2009 to 8.7 million bbl/d today. This has been paralleled by a huge increase in natural gas production due to advances in hydraulic fracturing, or “fracking.” Additionally, our main source of imported oil is no longer hostile or unstable regimes in the Persian Gulf, but instead our friendly northern neighbor, Canada.
The United States is once again the world’s largest producer of oil and natural gas. We are still finding new possibilities for integrating fracking into the economy and for expanding domestic oil and gas production.
The changing dynamics of our energy industry means that lifting the outdated export ban would be enormously beneficial for the nation. A 2014 study by the non-partisan Aspen Institute predicted that lifting the ban would create a 1% rise in GDP and 630,000 new American jobs by 2019. American families will see their household income increase while their fuel costs will decrease. Further, the Congressional Budget Office predicts $1.4 billion in new revenue, which can be spent on needed infrastructure improvements, education and shoring up our budget.
There are numerous geopolitical factors that have changed since 1975, most recently the (deeply misguided) diplomatic agreement with Iran. The Iran deal will lift current sanctions on Iran, putting them in a position to exert undue influence on the world’s oil markets. Permitting the export of American-produced crude onto the global market would reduce the leverage and market power of Iran and its allies and allow the United States to stand tall on firmer geopolitical footing.
The Offshore Production and Energizing National Security Act of 2015
This is why I’m joining Senator Lisa Murkowski (R-AK), chairwoman of the Senate Energy and Natural Resources Committee in sponsoring the Offshore Production and Energizing National Security Act of 2015 (OPENS), which lifts the ban on crude oil exports and improves the competitiveness of America’s crude oil. The OPENS Act would expand offshore oil and gas exploration in currently protected areas of Alaska, the Gulf of Mexico and Southern Atlantic. The OPENS Act would benefit the economy by making it possible for suppliers to ship globally, invest in infrastructure, and once again have an America that dominates the energy marketplace.
Lifting the crude oil export ban makes sense across the board. We have an opportunity to make the United States a global leader in energy production. Let’s not miss this chance.
Dr. Cassidy is a U.S. senator for Louisiana. Mr. Weber is a student at the University of Pennsylvania.
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Science Behind ‘Waters’ Rule Could Impact NRD Liability, Attorney Says
Oct 27, 2015 | InsideEPA
By Suzanne Yohanna
A private-sector attorney is predicting federal natural resource trustees may apply the science underlying EPA’s much-disputed Clean Water Act (CWA) jurisdiction rule to natural resource damages (NRD) cases to argue discharges into isolated waters are significantly impacting navigable waters potentially hundreds of miles away.
“[P]erhaps the one legacy of this rule, whether it’s overturned or not, may be the science” underlying it, Michael Giannotto, a partner with the law firm Goodwin Procter, said at an NRD forum Oct. 15. Giannotto spoke at the Natural Resources Symposium sponsored by the Ad-Hoc Industry Natural Resource Management Group and the Georgetown Environment Initiative in Washington, DC.
Giannotto spoke in part on how the jurisdictional waters rule that EPA released in June could have implications for the NRD arena.
The rule aims to clarify which waters are protected under the CWA following confusion resulting from competing tests that emerged due to the Supreme Court’s 2006 ruling in Rapanos v. United States, but its implementation is on hold as federal district and appellate courts determine where dozens of legal challenges to the rule should be heard.
The final rule adopts language from the test established by Justice Anthony Kennedy in a concurring opinion inRapanos, rather than Justice Antonin Scalia’s competing test. The rule finds that tributaries and “adjacent waters” share a significant nexus with downstream waters and are jurisdictional, identifying specific types of other waters, such as prairie potholes, that could share a significant nexus to be assessed on a case-by-case basis.
The rule says that waters have significant nexus and are therefore covered by the CWA if “any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity” of the nearest jurisdictional water, traditional navigable waters, interstate waters, or the territorial seas.
To further clarify how significant nexus determinations will be made, the rule offers a list of specific functions to be considered in those decisions, including sediment trapping, nutrient recycling, pollutant trapping, transformation, filtering, flood retention, provision of life cycle dependent aquatic habitat and others.
Giannotto, in a written response to follow-up questions, points to EPA and the Army Corps of Engineers’ Jan. 15 connectivity study as the science underlying the rule.
In a fact sheet accompanying release of the final study, “Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence,” EPA notes that, “Now final, this scientific report can be used to inform future policy and regulatory decisions, including” the proposed CWA rule.
The connectivity report finds that all tributaries as well as wetlands and waters located in floodplains and riparian areas are connected with downstream waters in ways that affect their “physical, chemical and biological integrity,” making the tributaries automatically jurisdictional under the CWA.
Connectivity Arguments
In his response to questions, Giannotto explained that a federal trustee who is seeking damages for injuries to fish or biota caused by discharges to a traditional navigable water (TNW) could use these connectivity study findings “to argue that persons who discharged to isolated waters, or ephemeral drainage, well upstream of a TNW are responsible for the harm to the resources.”
“And the question is in NRD cases in the future, whether or not this rule is upheld by the courts, the government or the trustees . . . will be using the science underlying this rule to say ‘you can be liable, you discharged something hundreds of miles away, but it does have a significant impact on this navigable water and its resources,” Giannotto told the forum.
Giannotto noted that the CWA rule does not change the definition of natural resources in the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) and the Oil Pollution Act (OPA) -- which already include all surface waters, not just navigable waters.
But, the CWA allows natural resource trustees “to pursue NRD claims for damages to resources caused by discharges of oil to ‘navigable waters,’” and the CWA rule’s definition of covered waters has now been changed to reflect the new, broader definition, he said in his follow-up response.
Giannotto said he expects this may trigger a requirement for a larger array of operators to prepare oil spill prevention, control and countermeasure plans “because of potential spills to some isolated or ephemeral/intermittent drainages that previously would not have been considered ‘navigable waters.’”
And while it may also technically provide trustees with “standing” to pursue damages for harm to resources affected by spills to such waters, absent an injury to a special resource such as an endangered species or a spill on federal lands, he says he doubts that federal trustees “would get involved” in such pursuits.
Air Emissions
Giannotto also pointed to an ongoing CERCLA court case in the U.S. Court of Appeals for the 9th Circuit over industrial air emissions that could have implications for wider NRD liability as well. In the case, Joseph Pakootas, et al. v. Teck Cominco Metals, the 9th Circuit is the first circuit court to address whether air emissions leading to disposal onto land or water are actionable under CERCLA.
In the case, the state of Washington and several tribes allege that air emissions, in addition to discharges that flowed into the Columbia River, from a lead and zinc smelter operated by Teck for more than 100 years just north of the U.S. border in British Columbia, Canada, resulted in the “disposal” of hazardous substances at the Upper Columbia River contaminated site in Washington.
At issue is whether “the definition of ‘disposal’ in CERCLA is satisfied by allegations that hazardous substances were emitted into the air and then transported by wind, eventually settling onto land or water,” says Teck’s brief to the appellate court, filed in August.
If those emissions land on an already-polluted site, “is the person who had the air emission potentially liable under CERCLA to clean up that whole polluted site and for NRD?” Giannotto said during at the symposium. He said for many years, “the government assumed that they were,” but says now the Teck case represents the first litigation to take up this issue.
“Depending on how it comes out, [the case] could have significant consequences,” Giannotto said. “If air emissions can lead to CERCLA liability, it means that someone who releases small quantities of hazardous substances in their emissions could end up jointly and severally liable at many places, hundreds of miles away,” if the particles land on contaminated property, he said at the symposium.
If there is no deep-pocket party at that site, the government or a trustee may pursue the emitter, he said. “There are a lot of headaches that are going to arise, depending on how this 9th Circuit case comes out,” he said, noting issues that likely would arise are proving that the substances came from a given site, determining whether the emission was a federally permitted release, and determining if the emitted substances contributed to NRD.
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