Preview Newsletter
ACC AM oct 28
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(ACC Mentioned) EPA Denies Petition to Remove EGBE From List of TRI Form R Chemicals
Oct 28, 2015 | JD Supra Business Advisor
By Ethan Ware
Ethylene glycol monobutyl ether (EGBE) is a solvent used primarily in the production of paints, coatings, and metal and household cleaners. It’s also used in the production of other chemicals. Facilities that manufacture, process, or otherwise use EGBE above reporting thresholds within a calendar year are required to file ... -
Some Energy Companies Would Report Toxics, EPA Says
Oct 28, 2015 | BNA Daily Environment Report
By Pat Ware
The Environmental Protection Agency will propose regulations requiring some natural gas processing plants to start reporting the toxic chemicals they release, according to a letter from the agency's administrator. Gina McCarthy said the EPA has determined that natural gas processing facilities may be appropriate to add to the Toxics Release... -
Attorney Highlights Chemical Data Reporting Lapses
Oct 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies' incorrect conclusions about which entity in their supply chain officially imported a chemical are a common cause of noncompliance with the Chemical Data Reporting rule, an attorney said Oct. 27. Tom Berger, an attorney with Keller and Heckman, LLP, discussed the Chemical Data Reporting (CDR) rule in anticipation ... -
Methylene Chloride Alternatives for Paint Stripper Analyzed
Oct 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Nine chemicals are possible alternatives to methylene chloride's use in paint strippers, according to an alternatives analysis released Oct. 27 by a business and environmental groups organization called BizNGO. The group prepared the alternatives analysis in light of California's Safer Consumer Products Regulations 2014 announcement... -
Pipeline Safety Plans Miss The Leak
Oct 28, 2015 | PoliticoPro
By Elana Schor and Andrew Restuccia
An overhaul of federal oil pipeline safety regulations was finally made public this month after five years of stops and starts, but the proposal makes no effort to set any standards for the industry's technology to spot leaks. Better leak detection systems could have helped avert disasters like the 2010 Michigan pipeline rupture that went unnoticed... -
Online Threat Info-Sharing Legislation Clears Senate
Oct 28, 2015 | E&E Daily News
By Blake Sobczak
The Senate passed a cybersecurity bill yesterday that would ease the flow of online threat information between U.S. agencies and the private sector, overriding concerns from civil liberties groups over NSA spying. The "Cybersecurity Information Sharing Act" (CISA), sponsored by Sen. Richard Burr (R-N.C.), offers legal protection... -
(ACC Mentioned) House Passes Deadline Extension for Rail Safety System
Oct 27, 2015 | The New York Times
By Ron Nixon
The House on Tuesday passed legislation that would give railroads an additional three years to install technology intended to prevent train crashes, potentially averting major disruptions in the nation’s freight and commuter rail systems. The rail industry and its customers have long sought an extension to the year-end deadline... -
(ACC Mentioned) No Train Today? Ask Congress Why
Oct 28, 2015 | The New York Times - Opinion Pages
By Andrew N. Liveris and Matthew K. Rose
Untreated drinking water, empty store shelves, manufacturing plants sitting idle, and a million more cars on the roads because America’s rail network effectively comes to a halt. Sound unbelievable? Unless Congress acts quickly, this will begin to be reality in the United States as soon as January because of a law that many people -
Feinberg Nomination Advances
Oct 28, 2015 | E&E Daily News
By Sean Reilly
A Senate panel handily approved Sarah Feinberg's nomination to head the Federal Railroad Administration yesterday, setting her up for a final confirmation vote by the full Senate. In a hastily scheduled meeting off the Senate floor, the Senate Commerce, Science and Transportation Committee voted 19-1 in Feinberg's favor. -
House Passes Highway, Hazmat Extension Bill
Oct 28, 2015 | BNA Daily Environment Report
The House passed by a voice vote Oct. 27 a highway bill that extends through Nov. 20 authorization for hazardous materials transportation programs. The bill (H.R. 3819), which also would extend by three years the positive train control installation deadline for railroads, now moves to the Senate. Sen. Jim Inhofe (R-Okla.)... -
House Delays Mandate for Railroads to Install Safety Measure
Oct 27, 2015 | AP (in the Wall Street Journal)
he House passed a bill Tuesday that delays for three to five years the mandate for railroads to put long-sought safety technology in place. Federal accident investigators say the technology, known as positive train control, would have prevented an Amtrak derailment in Philadelphia last May that killed eight people and injured about 200 others... -
Rail-Safety Deadline Extension Hitched To Must-Pass Bill On Transit Funding
Oct 27, 2015 | The Washington Post
By Ashley Halsey III and Michael Laris
The House on Tuesday appended a deadline extension being sought by the railroad industry to a must-pass highway funding bill and approved both, delaying for at least three years a safety measure that could have prevented the Amtrak derailment that killed eight people and injured more than 200 in May. -
EPA Agrees To Add Gas Processors To TRI But Rejects Broader Rulemaking
Oct 27, 2015 | InsideEPA
By Jaclyn Brandt
EPA has agreed to launch a rulemaking to add natural gas processing plants to the industry sectors required to report their chemical releases to the agency's Toxics Release Inventory (TRI), responding in part to a push by environmentalists, but is rejecting advocates' efforts to expand the TRI rules to include oil and gas facilities, -
EPA Sets Hearings on Power Plant Emissions Plan
Oct 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency scheduled eight days of public hearings on a proposed federal implementation plan for its Clean Power Plan, according to a notice to be published in the Oct. 28 Federal Register.. The EPA Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state... -
Green Groups Move To Help EPA Defend Climate Rule
Oct 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Nine environmental and health groups are asking a federal court to let them help the Obama administration defend its climate change regulation for power plants. The groups, led by the Environmental Defense Fund (EDF), petitioned the federal Court of Appeals for the District of Columbia Tuesday to be designated as interveners in the lawsuits... -
Nearly Half of Senate Pledges to Fight EPA Carbon Rules
Oct 28, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
The Senate moved swiftly to push back against Environmental Protection Agency carbon pollution rules with nearly half the chamber backing separate resolutions to overturn the Clean Power Plan and carbon dioxide limits for new and modified power plants. -
Senators Dare Obama To Veto Climate Rule Bills
Oct 27, 2015 | The Hill - E2 Wire
By Devin Henry
A bipartisan group of senators opposed to the EPA's new climate rule for power plants said Tuesday they’ll push forward with resolutions to undo it despite a certain veto from President Obama. Senate Majority Leader Mitch McConnell (R-Ky.) led a group of members in introducing two Congressional Review Act resolutions against new... -
Five States Challenge EPA Ozone Standards
Oct 28, 2015 | BNA Daily Environment Report
Five states are challenging the Environmental Protection Agency's decision to set more stringent federal air quality standards for ozone (Arizona v. EPA, D.C. Cir., No. 15-1392, 10/27/15). Arizona, Arkansas, New Mexico, North Dakota and Oklahoma filed the lawsuit Oct. 27 in the U.S. Court of Appeals for the District of Columbia Circuit. -
EPA Schedules Hearings On Carbon Rule FIP
Oct 27, 2015 | PoliticoPro - Afternoon Energy
EPA will hold four two-day public hearings next month on the proposed federal implementation plan for the Clean Power Plan - aka the plan that would be imposed on states that do not implement their own plan. The hearings will take place in relatively friendly states. EPA will be in Pittsburgh Nov. 12-13; Pennsylvania plans to comply...
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(ACC Mentioned) EPA Denies Petition to Remove EGBE From List of TRI Form R Chemicals
Oct 28, 2015 | JD Supra Business Advisor
By Ethan Ware
Ethylene glycol monobutyl ether (EGBE) is a solvent used primarily in the production of paints, coatings, and metal and household cleaners. It’s also used in the production of other chemicals. Facilities that manufacture, process, or otherwise use EGBE above reporting thresholds within a calendar year are required to file an annual Form R report under the Emergency Planning and Community Right-to-Know Act (EPCRA) disclosing their permitted and unpermitted releases of EGBE to the environment.
EPCRA authorizes EPA to add and delete chemicals from the list of chemicals subject to Form R reporting. Last December, the American Chemistry Council (ACC) petitioned EPA to remove EGBE from the list on the grounds that available scientific data shows EGBE poses low potential hazards to human health and the environment. Among other things, ACC pointed out that EPA removed EGBE from the Clean Air Act’s list of Hazardous Air Pollutants in 2004. In doing so, EPA said then that there is a “reasonable assurance” any potential adverse human health and environmental effects “will not occur” from EGBE facility releases (68 FR 65660). EPA said it was able to conclude “with confidence” that releases of EGBE would “not reasonably be anticipated to cause any adverse effects….”
Despite this prior action under the Clean Air Act, EPA denied the petition. ACC had argued the agency should take into account more realistic assumptions about exposure levels and the fate and transport of EGBE in environmental media. Instead, EPA focused only on EGBE’s toxicity. The Notice announcing the denial said:
This denial is based on EPA’s conclusion that EGBE can reasonably be anticipated to cause serious or irreversible chronic health effects in humans….While EPA acknowledges that there is evidence to indicate that humans are less sensitive than rodents to the hematological effects associated with acute or short term exposure to EGBE, little is known of the long-term or repeated exposure responses in humans to EGBE.
(Emphasis added.)
The greatest concern over EPA’s action is not necessarily its decision to deny the petition, but its refusal to investigate ACC’s claims. ACC’s delisting petition was incredibly detailed and full of scientific information. Ultimately, EPA’s decision not to conduct the exposure assessments necessary to verify ACC’s claims was a decision not to do the work required to properly assess the effects of EGBE.
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Some Energy Companies Would Report Toxics, EPA Says
Oct 28, 2015 | BNA Daily Environment Report
By Pat Ware
The Environmental Protection Agency will propose regulations requiring some natural gas processing plants to start reporting the toxic chemicals they release, according to a letter from the agency's administrator.
Gina McCarthy said the EPA has determined that natural gas processing facilities may be appropriate to add to the Toxics Release Inventory, an online public database.
As of 2012, there were about 517 natural gas processing plants in the lower 48 states, McCarthy said. EPA estimates that more than half of these would annually meet TRI reporting thresholds and may be required to submit TRI information to the agency, McCarthy said in the letter addressed to Eric Schaeffer, executive director of the Environmental Integrity Project, and Adam Kron, an attorney with the organization.
McCarthy's Oct. 22 letter was in response to a lawsuit filed in January by EIP and nine other groups, and a petition submitted in 2012 by EIP and 16 other organizations (05 DEN A-11, 1/8/15)
“The oil and gas industry releases an enormous amount of toxic pollutants every year, second only to power plants in emissions,” Kron said in a statement. “With this decision, EPA is taking an important step in the right direction,” he said.
Public reporting to the TRI “allows communities to measure environmental impacts and plan for their future,” Kron said. “It also motivates companies to reduce their toxic footprint, and provides insight into how well how environmental laws are working.”
Under the EPA's upcoming proposed rules, gas processing plants would have to start reporting their emissions of toxic chemicals, including xylenes, formaldehyde and benzene.
The EPA denied part of the petition, saying it will not include well sites, compressor stations, pipelines and other smaller facilities that employ fewer than 10 people, in the rules.
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Attorney Highlights Chemical Data Reporting Lapses
Oct 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies' incorrect conclusions about which entity in their supply chain officially imported a chemical are a common cause of noncompliance with the Chemical Data Reporting rule, an attorney said Oct. 27.
Tom Berger, an attorney with Keller and Heckman, LLP, discussed the Chemical Data Reporting (CDR) rule in anticipation of submissions that thousands of chemical manufacturers, formulators and other companies will have to provide the Environmental Protection Agency in 2016. He spoke during the law firm's annual Chemical Regulatory Law seminar.
Under the CDR rule, manufacturers, including importers, of chemicals will have to provide the EPA with production volume and often processing and use information about the chemicals they make. The information must be reported from June 1, 2016, to Sept. 30, 2016. Production volume will be required for 2012, 2013, 2014 and 2015.
If triggered by particular production volumes, companies also will have to provide detailed process and use information for the chemicals they made or imported in 2015.
The EPA has issued two fact sheets and one guidance for reporting for the 2016 reporting period, but it has said it will issue more extensive information as the reporting deadline approaches.
The common mistakes companies have made in CDR submissions were drawn from previous years' experience, Berger said.
In addition to not reporting an imported chemical, because a company assumed another part of its supply chain had done so, common causes of noncompliance, he said, include:
• inaccurate manufacture and import volume tracking;
• failure to report or file all or some chemicals;
• incorrect chemical identification (nomenclature issues); and
• inaccurate assumptions about being exempted from reporting requirements.
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Methylene Chloride Alternatives for Paint Stripper Analyzed
Oct 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Nine chemicals are possible alternatives to methylene chloride's use in paint strippers, according to an alternatives analysis released Oct. 27 by a business and environmental groups organization called BizNGO.
The group prepared the alternatives analysis in light of California's Safer Consumer Products Regulations 2014 announcement that methylene chloride's use as a solvent in paint/varnish strippers was one of three product-chemical combinations proposed for possible regulation (75 DEN A-4, 4/20/15).
At least 14 worker deaths in the U.S. between 2000 and 2011 were attributed to methylene chloride's use to refinish bathtubs, California said in proposing that product-chemical combination.
If methylene chloride's use to strip paints and varnishes is placed on California's final Priority Products list, manufacturers will have to perform an alternatives analysis to determine how best to limit exposures to the solvent.
The state's Department of Toxic Substances Control has not released final guidance on how alternative assessments will have to be conducted, but has said they will be done in two phases, Molly Jacobs, one of the authors of BizNGO's analysis, said in an Oct. 27 webinar on the document.
The analysis addresses the first, or hazard, portion of that assessment, she said.
BizNGO's analysis does not designate any alternative as the “best” substitute for methylene chloride, but shows how the first phase of an alternatives analysis could be conducted and challenges that arise in preparing them.
Five Lessons Learned
The analysis provided five “lessons learned,” BizNGO said:
• Information is readily available about functional requirements, performance requirements, and potential alternatives for methylene chloride based paint strippers.
• Safer alternatives to methylene chloride for use in chemical paint strippers are widely available based on assessing the hazards of 11 chemical alternatives.
• The type and range of alternatives to consider should be informed by a business entity's capacity to adopt those alternatives.
• Whether or not a commonly used alternative analysis tool, GreenScreen®, would be sufficient to meet California's requirements remains to be determined.
• The hazards of other chemicals in the formulation should also be considered when conducting an alternatives assessment on formulated chemical products.
If a company were to reformulate its paint or varnish stripper to eliminate methylene chloride, the new formulation may have new types of hazards that the manufacturer would have to consider, Jacobs said during BizNGO's webinar.
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Pipeline Safety Plans Miss The Leak
Oct 28, 2015 | PoliticoPro
By Elana Schor and Andrew Restuccia
An overhaul of federal oil pipeline safety regulations was finally made public this month after five years of stops and starts, but the proposal makes no effort to set any standards for the industry's technology to spot leaks.
Better leak detection systems could have helped avert disasters like the 2010 Michigan pipeline rupture that went unnoticed for 17 hours, allowing it to spew more than 800,000 gallons of oil into the Kalamazoo River, and a 2013 Arkansas pipeline breach that spilled 210,000 gallons. A subsequent congressionally mandated investigation found that the federal government has no enforceable standards for leak detection.
The Pipeline and Hazardous Materials Safety Administration's critics say they’re dumbfounded that the federal regulator hasn't set minimum standards for detecting leaks.
"PHMSA is leaving it up to individual companies to make the determination of how well their leak detection can perform" said Carl Weimer, the executive director of the Pipeline Safety Trust, the country's leading watchdog group. "And we have seen multiple times that while many companies may do a good job under such a rule, there are enough others that will not."
Despite praise for the pipeline regulator's renewed urgency under a new chief who joined in August, safety advocates wonder whether an agency that has long faced criticism for not doing enough to prevent pipeline incidents — and for a culture that even some of its allies admit is dominated by the oil and gas pipeline industry, as a POLITICO investigation published in April showed — is up to the task.
Meanwhile, lawmakers have little bandwidth to prod the agency to move faster while they also undertake major rewrites of highway and hazardous materials policies.
PHMSA told POLITICO it plans to release a separate regulation on leak detection soon, perhaps as early as the spring. But the proposed safety rules for oil pipelines that were proposed earlier this month represent a first test of the agency’s ability to take a harder regulatory line, and they underscore the immense challenges facing PHMSA.
The number of advocates and activists who track pipeline safety issues remains small, even after the 2010 Michigan oil spill and five other subsequent major leaks that also made national headlines. Some of PHMSA’s Oct. 1 proposals won praise from those safety watchdogs, but its omissions were met with exasperation.
The pipeline proposal would increase the number of pipelines that must have monitoring systems in place to detect spills beyond those located in “high consequence areas," which represent an estimated 43 percent of the nation’s total oil-shipping mileage. The rule would also require companies to inspect their pipes within 72 hours of a natural disaster or extreme weather event, and require smaller "gathering" lines that previously went unregulated to submit annual reports to the federal government.
The rule took PHMSA nearly five years to develop, and throughout the process, industry officials and watchdog groups alike were left in the dark about what they should expect.
The absence of any minimum standards for leak detection was especially striking because Congress had told PHMSA in its bipartisan 2011 pipeline safety bill to issue stronger standards pending the outcome of an external audit. That audit found that a successful leak detection system “can easily pay for itself” in smaller spills and inspire “greater public confidence” in pipeline safety.
"We can't understand if PHMSA plans at some future date to take this on, why it is not in a rule that has taken five years to produce, especially after they spent lots of money on a large leak detection study," Weimer said.
Safety advocates say minimum leak detection standards have been successful in individual states, an indication that they could be expanded across the country.
At least two states — Washington and Alaska — have imposed regulations that set minimum regulatory standards for leak detection systems on intrastate pipelines. Weimer said his group has not heard anything about those regulations causing problems in the states.
Lois Epstein, Arctic program director at The Wilderness Society, pointed to a 2012 Alaska state report that urged companies to consider the ability to detect a leak representing 1 percent of a pipeline’s daily volume as “an absolute minimum level of performance.”
Epstein added by email that "it’s clear that operators could find products that meet leak detection performance standards, and that there doesn’t seem to be a good reason — technical or otherwise — why PHMSA did not include such standards in its proposed rule."
Pamela Miller of the Alaska-based green group Arctic Connections was one of about two dozen interested parties who spoke out while PHMSA was accepting public comment on its safety plans.
“I’m glad that the public will have transparency on spills that occur, but on the opportunity to ensure there’s a hammer, to make sure they don’t happen in the future, the regulation is very disappointing,” she said. “Especially considering how long it’s been in the works.”
The global market for pipeline leak detection systems is set to reach $1.8 billion by 2020, according to Canada-based consultancy TechSci Research. In the U.S., the most commonly used ones are SCADA systems, which collect data remotely from inside pipelines and transmit it to far-off control centers, and CPM, which uses an added layer on the pipeline to monitor factors that can warn of a spill, such as pressure or temperature.
Although the American Petroleum Institute and the Association of Oil Pipe Lines told PHMSA that "most operators already" use leak-catching systems on pipelines even outside of the higher-risk areas where they're currently required, the success of those two systems is questionable.
According to the 2012 outside audit written for PHMSA, a SCADA system was in place on 51 percent of the 795 liquid pipeline accident reports between 2010 and 2012 that were analyzed for the audit. CPM was in place on 25 percent of the accident reports.
In those accidents, the audit found that SCADA systems detected leaks less than one-quarter of the time, while the CPM system detection rate was less than 15 percent.
The pipelines that ruptured in the 2010 Michigan spill and the 2013 Arkansas spill both had SCADA systems in place but not CPM, according to incident reports. PHMSA had issued ExxonMobil a warning letter about faults in the SCADA on its Arkansas pipeline five months before the 2013 rupture.
API, the oil industry's main trade group, declined a request for an interview to discuss the PHMSA proposal, which it said is still under review. The industry's initial response to the pipeline safety plan indicated neither support nor opposition.
"We need a practical pipeline safety rule for hazardous liquids that will complement industry’s strong safety standards," API midstream director Robin Rorick said in a statement earlier this month.
After five years of work, several safety advocates say they were barely consulted as the rule was being written, and records show that only two meetings took place while the rule was being reviews by the White House — both with industry.
PHMSA spokeswoman Artealia Gilliard described the public comment period following its initial 2010 advanced notice of rulemaking as "a form of stakeholder engagement in advance."
And in a response to written questions, the agency said it maintains outside advisory committees on both liquid and gas pipelines as a means to "obtain and consider expert insight on rulemaking proposals."
But the advisory committees have come under criticism for being too heavily influenced by the pipeline industry. The committee for hazardous liquids, for example, includes representatives from Kinder Morgan Energy Partners, Marathon Pipe Line, Shell Pipeline, Phillips 66 Pipeline and Colonial Pipeline. The Pipeline Safety Trust’s Weimer is one of four public envoys on the committee, but he is the only member representing an outside pipeline safety watchdog group.
Weimer said his group was "really not at all" involved in the crafting of PHMSA's proposed regulation, though it did submit written comments about how the rule should be structured.
Richard Kuprewicz, a veteran pipeline consultant who also serves as a public representative for PHMSA's advisory committee, said it would be "disingenuous" to describe the panels as a source of input while the agency was crafting the rule.
Kuprewicz, whose firm has worked with industry and local governments, suggested that a re-examination of PHMSA's regulatory model might be in order, pointing to "too many ruptures where people are saying 'We’ve learned our lesson and we’ll never do it again.'"
Other environmental groups, including the Natural Resources Defense Council and the Sierra Club, said PHMSA did not reach out to them, though both groups submitted written comments on the rule.
Public records show that a PHMSA official and representatives from the White House Office of Management and Budget met with the American Petroleum Institute and the Association of Oil Pipe Lines at the groups' request to discuss the rule in June 2014. PHMSA and OMB officials also met with representatives of General Electric in June 2015 to discuss the company's pipeline inspection technology, according to public records.
"I think we’re not yet at the point where the public has an equal seat at the table with industry when determining what the minimum safety standards should be," said Anthony Swift, an energy analyst at NRDC who has long focused on pipeline safety. "All too often, public concern about pipeline safety is viewed more as a nuisance than the input of an important" group of people who are effected by pipeline regulations, he said.
National Association of Pipeline Safety Representatives Chairman Steve Allen, whose group represents state-level oil and gas pipeline regulators, said the new proposal reflects PHMSA "trying to do the right thing."
“It seems that, under new the administrator, it’s possible to get more of these rulemakings through," added Allen, who hails from Indiana's state utility commission. "Why, I don’t know — but that’s all very positive."
Indeed, PHMSA's new administrator, Marie Therese Dominguez, is already winning praise for her efforts to make the agency more nimble, even from the agency's critics.
"She's moving things along much better than they have previously," said Rep. Peter DeFazio, the top Democrat on the House Transportation and Infrastructure Committee. DeFazio added that he had previously questioned whether PHMSA might need a structural overhaul, "but I think that she's pulling it together in a pretty good way."
PHMSA is facing a congressional reauthorization process in the coming months. It's unclear whether lawmakers will push for major changes at the agency, but Democrats and Republicans alike have recently trained their sites on the problems at PHMSA, including a litany of unmet mandates from Congress. A bipartisan group of lawmakers, for example, introduced legislation last week to make it easier for PHMSA to hire new pipeline inspectors.
PHMSA officials say they are working behind the scenes to comply with congressional safety mandates and finish the long-stalled regulations. But the agency faces a number of challenges. It lacks a sufficient budget, it struggles to compete for personnel with pipeline expertise against the companies that can offer higher pay and it faces the daunting task of determining the costs and benefits of its technical and complicated rulemakings.
On top of all that, PHMSA must grapple with the White House Office of Management and Budget, which scrutinizes every regulation. The proposed rule for oil pipelines, for example, lingered at OMB for months despite carrying a $23 million annual price tag, far short of the typical $100 million threshold for significant regulations.
The budget office ultimately deemed the regulation significant because of the degree of inter-agency coordination involved, according to agency spokewoman Gilliard.
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Online Threat Info-Sharing Legislation Clears Senate
Oct 28, 2015 | E&E Daily News
By Blake Sobczak
The Senate passed a cybersecurity bill yesterday that would ease the flow of online threat information between U.S. agencies and the private sector, overriding concerns from civil liberties groups over NSA spying.
The "Cybersecurity Information Sharing Act" (CISA), sponsored by Sen. Richard Burr (R-N.C.), offers legal protection to firms sharing cyberthreat data with the federal government, in addition to authorizing certain defensive cyber measures.
Critics worry S. 754 clears the way for sensitive personal information to reach the U.S. intelligence community. Proponents of the legislation, including several major electricity industry groups, have called it an important first step toward addressing a string of high-profile hacks against American companies and critical infrastructure networks.
Senate Minority Leader Harry Reid (D-Nev.) invoked the specter of a "crippling" cyberattack on U.S. power or banking systems while vouching for the bill on the Senate floor yesterday. "If it sounds scary, that's because it is scary -- cyber terrorists could potentially bring the United States to its knees ... a catastrophic cyberattack is not far-fetched," he said.
U.S. electric utilities are quick to point out that a large-scale cyberattack on the grid is unlikely. Groups including the Edison Electric Institute and the American Public Power Association have supported information-sharing efforts in Congress as a way to bolster existing safeguards. Most big utilities subscribe to private information sharing portals to stay up to date on the latest attacks, vulnerabilities and hacking strategies.
"We believe that CISA provides a framework necessary to foster even more meaningful information sharing while maintaining the proper balance between liability and privacy protections," said EEI President Tom Kuhn in a statement yesterday. "We look forward to working with both the House and the Senate to develop a final cybersecurity information sharing bill that can be signed into law by the President."
Chris Blask, chairman of the Industrial Control Systems Information Sharing and Analysis Center (ICS-ISAC), called yesterday's CISA vote "encouraging," noting that "it's good that we're having these conversations at the congressional level."
He didn't share the privacy worries that spurred tech giants including Apple Inc. and Google to oppose CISA.
"We certainly don't need to be sharing [personally identifiable information], really sensitive information like that," he said of his own center, which operates under the Webster University Cyberspace Research Institute. "A lot of the really high-value information is simply knowing that a facility of a given type had a given experience," he said, and then passing along the general outline of how that experience played out.
The White House has thrown its support behind the Senate bill that passed yesterday, calling it "one piece of a larger suite of legislation needed to provide the private sector, the Federal Government, and law enforcement with the necessary tools to combat cyber threats." The Obama administration had some initial misgivings about CISA's privacy protections before coming around to the bill this month.
Several lawmakers suggested tweaks to address privacy and transparency concerns, but five separate amendments on these issues failed to pass yesterday after catching flak from lobbyists in the utility industry (Greenwire, Oct. 23). One amendment, proposed by Sen. Chris Coons (D-Del.), sought to hold the Department of Homeland Security more accountable for "stripping" threat information of any personally identifiable details before sharing it with other entities. But Burr repeatedly warned that even minor changes to the bill risked the "delicate balance" necessary for bipartisan support.
That balance may not hold up in the House, which passed two pieces of legislation earlier this year aimed at streamlining information sharing. Differences between CISA and the House bills will need to be smoothed out in conference before any cyber info sharing legislation can reach President Obama's desk.
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(ACC Mentioned) House Passes Deadline Extension for Rail Safety System
Oct 27, 2015 | The New York Times
By Ron Nixon
The House on Tuesday passed legislation that would give railroads an additional three years to install technology intended to prevent train crashes, potentially averting major disruptions in the nation’s freight and commuter rail systems.
The rail industry and its customers have long sought an extension to the year-end deadline to install the safety system, called positive train control, on more than 60,000 miles of track. A Government Accountability Office report in September found that the industry would not be able to meet the deadline because of several problems, including a limited number of suppliers of the new technology. The office recommended that Congress extend the deadline.
The provision approved Tuesday was part of a short-term transportation measure that would fund and extend the authorization for federal highway and transit programs through Nov. 20. The current funding bill expires this week. The Senate, which voted in July to ease the deadline on positive train control, is expected to take up a similar short-term transportation measure this week.
After a train crash in California in 2008 killed 25 people, lawmakers gave railroad companies, including Amtrak, seven years to complete installation of the safety system, which monitors the speed of trains and automatically slows them if they approach curves too quickly. Federal investigators say the technology would probably have prevented the Amtrak derailment in Philadelphia in May that killed eight people.
Critics say railroads should not be given relief from installing lifesaving technology. But railroads say they have faced technical and bureaucratic obstacles to installing the costly system.
Railroads have threatened to shut down if the deadline is not extended because the Transportation Department has said it will issue fines to companies not in compliance, and they say they fear liability issues in transporting chemicals.
Rail customers and lawmakers praised the House vote. “We commend the House for approving legislation that will extend the deadline for implementing P.T.C. in time to prevent a shutdown of the nation’s rail system,” the American Chemistry Council said in a statement.
“Instead of waiting until the last minute, the inclusion of a deadline extension for the full implementation of positive train control safety technology addresses the national economic threat of a rail shutdown of our country’s freight and commuter network,” Representatives Mike Quigley, Democrat of Illinois, and Dan Newhouse, Republican of Washington, said in a statement.
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(ACC Mentioned) No Train Today? Ask Congress Why
Oct 28, 2015 | The New York Times - Opinion Pages
By Andrew N. Liveris and Matthew K. Rose
Untreated drinking water, empty store shelves, manufacturing plants sitting idle, and a million more cars on the roads because America’s rail network effectively comes to a halt. Sound unbelievable? Unless Congress acts quickly, this will begin to be reality in the United States as soon as January because of a law that many people have never heard of: a mandate that the rail industry install positive train control (P.T.C.) by the end of 2015.
P.T.C. is a system of complex GPS and wireless technologies that make trains safer by automatically stopping them in dangerous situations, ultimately preventing accidents caused by human error. Following a commuter train accident that killed 25 people near Los Angeles in 2008, Congress passed a law requiring virtually all commuter lines and larger railroads that carry passengers and toxic materials to install P.T.C. by the 2015 deadline.
It has been clear that the railroads need additional time to meet the deadline, and the Government Accountability Office acknowledged as much recently. After Dec. 31, railroads will be faced with operating in willful violation of a law. As a result, railroads have concluded that it is not reasonable to operate on these lines after the deadline, which will effectively shut down the freight rail network. At the same time, most passenger rail services in the United States will not operate.
The proposal being considered in Congress is for a three-year extension, to 2018, for getting P.T.C. installed, with potentially limited additional time for testing if approved by the secretary of transportation. The extension also has enforcement language and railroad reporting requirements for progress.
The rail industry doesn’t doubt the value of P.T.C. According to the National Transportation Safety Board, the fatal Amtrak accident near Philadelphia earlier this year could have been prevented if the system had been installed there. Since 2008, the railroads have spent $6 billion installing P.T.C. and are at varying stages, but have maintained that the Dec. 31 deadline is not feasible. For example, BNSF, one of the largest freight networks in the country, has half of its locomotives and 85 percent of its track equipped.
P.T.C. is the most significant technological innovation in railroading since the diesel engine replaced the steam engine, but it poses an unprecedented challenge. There are numerous, complex steps that need to be taken in order to implement it.
Extremely precise data from train tracks and the locomotive must be integrated and processed to allow advanced hardware to stop a 100-car freight train that is over one mile long, weighs 6,000 tons and travels at 55 miles an hour — in any given location and weather. Each one of these elements must be fine-tuned, precisely aligned and must work with every other railroad’s trains.
Because Congress established the original deadline, only Congress can extend it. So far, this has not happened, and if it doesn’t, railroads and their customers will have to take steps to anticipate the shutdown ahead of the actual deadline expiration. Shutting down railways is not like turning a light off. It is a process that will take time and significant effort. We will need to start removing rail cars, including those that carry cargo necessary for public health and safety.
A shutdown will affect all Americans in some way. The products we ship by rail represent over 96 percent of all manufactured goods. If even a portion of those products is moved off the rails before Congress finally acts, it will represent more than higher costs for rail customers and loss of business: It might mean that freight required for the most basic human needs, perhaps in ways we take for granted, won’t be readily available. Rail carries most of our food to market. Rail transports the chlorine that makes the drinking water of 98 percent of all Americans safe to drink.The effects of even a partial shutdown of America’s freight rail network would extend well beyond human essentials like food and water; the potential impacts would be felt in higher energy prices and shortages of goods and products, as well as loss of United States market share abroad. And as public transportation officials have made clear, failure by Congress to extend the P.T.C. deadline will strand millions of commuters, putting more cars on the road each day that passenger rail service is suspended. According to a study by the American Chemistry Council, the impact could be $30 billion pulled out of the United States economy in January.
Congress has acted to include the P.T.C. extension in a multiyear highway bill, the Drive Act. But finalizing that bill could slip into next year and Congress faces a deadline to vote on an extension of the bill by Thursday. We could avoid a self-inflicted crisis if Congress took the opportunity to pass the P.T.C. extension, as well.
America’s railways are becoming safer, faster and more energy efficient every day. In fact, 2014 was the safest year on record for freight rail. Laws and regulations play a role in that effort, but they need to be applied in a way that does not put our national economy at risk. Railroads need additional time to do this right and Congress needs to change the deadline.
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Oct 28, 2015 | E&E Daily News
By Sean Reilly
A Senate panel handily approved Sarah Feinberg's nomination to head the Federal Railroad Administration yesterday, setting her up for a final confirmation vote by the full Senate.
In a hastily scheduled meeting off the Senate floor, the Senate Commerce, Science and Transportation Committee voted 19-1 in Feinberg's favor. The sole opponent was Sen. Deb Fischer (R-Neb.), chairwoman of the surface transportation subpanel. In a statement afterward, Fischer cited what she called the railroad administration's "mismanagement" in ending an incident reporting system used by Nebraska-based Union Pacific Corp. Her office did not provide further details.
The outcome, however, represented a show of confidence in Feinberg, who had faced skepticism stemming from her dearth of experience in rail regulation. A former White House aide whose background primarily rests in communications and public relations, Feinberg has been acting head of the railroad administration since January. President Obama nominated her to get the job permanently in June.
Feinberg has gained lawmakers' respect through her handling both of a deadly Amtrak train derailment five months ago and oil train mishaps, said Karen Torrent, who lobbies on rail issues as federal legislative director for the Environmental Law and Policy Center, a Chicago-based advocacy group.
Feinberg, a native West Virginian, also has the backing of Sen. Joe Manchin (D-W.Va.), a Commerce Committee member. At her confirmation hearing last month, she touted her work to reduce a backlog of National Transportation Safety Board recommendations, some of which have been languishing for years, according to her prepared testimony.
Feinberg "has brought a fresh perspective and renewed vigor to safety issues," Sen. Richard Blumenthal (D-Conn.), said in a statement after yesterday's vote urging her confirmation.
Blumenthal last year denounced the railroad administration as "lawless."
Feinberg now needs to end the agency's "old, stale way of doing business, crossing its fingers that railroads comply with the law," he said yesterday, "and instead adopt a new approach that relies on strong, aggressive enforcement practices, regardless of whether the industry likes it."
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House Passes Highway, Hazmat Extension Bill
Oct 28, 2015 | BNA Daily Environment Report
The House passed by a voice vote Oct. 27 a highway bill that extends through Nov. 20 authorization for hazardous materials transportation programs. The bill (H.R. 3819), which also would extend by three years the positive train control installation deadline for railroads, now moves to the Senate. Sen. Jim Inhofe (R-Okla.) said Oct. 26 that he hopes that the Senate will pass the House's extension bill quickly to speed up the path for the chambers' six-year bills for these programs—(H.R. 22 and H.R. 3763) to be conferenced (207 DEN A-13, 10/27/15). “Unlike in years past, I expect a very short conference period. And because we still face this important process, Congress will need one more extension to get us to the finish line,” Inhofe said on the Senate floor. “I realize there are many moving discussions on larger deals on debt limit and budget caps. However, there is agreement that the Surface Transportation Bill can and will move on its own timeline.”
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House Delays Mandate for Railroads to Install Safety Measure
Oct 27, 2015 | AP (in the Wall Street Journal)
The House passed a bill Tuesday that delays for three to five years the mandate for railroads to put long-sought safety technology in place.
Federal accident investigators say the technology, known as positive train control, would have prevented an Amtrak derailment in Philadelphia last May that killed eight people and injured about 200 others had it been working. Amtrak had installed the technology on tracks where the crash occurred, but it hadn’t been tested yet and so wasn’t turned on.
The bill was passed by a voice vote with little debate. Railroads and companies that ship freight by rail have been lobbying Congress heavily for a delay. Under the bill, railroads would have until Dec. 31, 2018, to install positive train control, and could seek a waiver for up to another two years if needed.
The bill also extends the government’s authority to spend money on highway programs through Nov. 20 in an effort to buy time for Congress to pass a long-term transportation bill. Current authority is due to expire on Thursday.
Senate action is still required.
The safety technology relies on GPS, wireless radio and computers to monitor train position and automatically slow or stop trains that are in danger of colliding or derailing due to excessive speed. A 2008 law gave railroads until the end of this year to implement the expensive technology on all tracks that carry passenger trains or are used by trains to haul liquids that turns into toxic gas if spilled.
Most railroads aren’t expected to make the deadline. Many railroads were late getting started while they waited for the government to develop standards for the technology, and while they tried to decide which approach best-suited their needs.
Freight railroads often host commuter railroad operations on their tracks, and also frequently use the tracks of their competitors. Developing positive train-control systems that can be used by multiple railroads has added a layer of complexity to the effort. Railroads also ran into unanticipated difficulties acquiring the radio spectrum necessary to make the technology work and getting government permission to erect thousands of antennas along tracks.
Railroads say they’re worried about fines and liability should they violate the deadline. Freight railroads say they will stop hauling cargo like chlorine, which turns from liquid into toxic gas when exposed to the air, and prevent commuter trains and Amtrak from using their tracks if the deadline isn’t delayed.
Failing to delay the deadline “will have devastating economic impacts,” said Rep. Bill Shuster, chairman of the House Transportation and Infrastructure Committee and chief sponsor of the bill. “Not only will railroads stop shipping important chemicals critical to manufacturing, agriculture, clean drinking water and other industrial activities, but passenger and commuter rail transportation will virtually screech to a halt.”
But some lawmakers say the delay should be shorter and determined on a case-by-case basis. “A three- or five-year, blanket extension will be interpreted by the industry as a waiver of the requirement and send the message that by failing to meet future deadlines, they can simply come to Congress for additional extensions,” Rep. Adam Schiff (D., Calif.) said in a letter to Mr. Shuster.
The National Transportation Safety Board has urged railroads to install positive train control or precursor train control technologies for more than four decades. The board has said that over that time it has investigated at least 145 PTC-preventable accidents in which about 300 people were killed and 6,700 injured.
The law mandating positive train control was passed in response to a 2008 collision between a Metrolink commuter train and a Union Pacific freight train in Chatsworth, Calif., that killed 25 people and injured 102 more. It was determined that a distracted Metrolink engineer continued past warning signals and onto a section of single track and into the path of the rushing freight train. Positive train control prevents trains from disobeying signals.
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Rail-Safety Deadline Extension Hitched To Must-Pass Bill On Transit Funding
Oct 27, 2015 | The Washington Post
By Ashley Halsey III and Michael Laris
The House on Tuesday appended a deadline extension being sought by the railroad industry to a must-pass highway funding bill and approved both, delaying for at least three years a safety measure that could have prevented the Amtrak derailment that killed eight people and injured more than 200 in May.
Transportation Committee Chairman Bill Shuster (R-Pa.) added the extension for an automatic braking system known as positive train control (PTC) to a highway funding bill, hoping to encourage the Senate to follow suit.
Congress has agreed to extend until Nov. 20 funding for all highway and transit, a measure that must be voted on this week so that money to state and local governments does not expire.
Shuster paired that extension with one what would give railroads until 2018 to install PTC. The original deadline for the installation — mandated by Congress — is Dec. 31.
Experts say that PTC, called “arguably the single-most important rail safety development in more than a century” by federal regulators, could have prevented the Amtrak derailment in Philadelphia in May.
According to the National Transportation Safety Board, the system could have prevented 145 rail accidents that killed 288 people and injured 6,574 since 1969.
[Deadline for train safety technology undercut by industry lobbying]
The move to add the PTC extension to the highway funding extension, putting both to a single vote, faces Senate opposition led by Sen. Barbara Boxer (D-Calif.).
The railroad industry has mounted an intense public and private lobbying effort to get the deadline Congress set in 2008 extended for another three years.
Last week, the railroads said that all freight and commuter rail lines would face a shutdown at the end of the year unless an extension was granted. They warned of a “transportation crisis” unless Congress acted this week, saying they would begin sending out shutdown notices and informing passengers and customers of an impending disaster that would do $30 billion in damage to the economy.
“We need to extend the Positive Train Control deadline as soon as possible to prevent significant disruptions of both passenger and freight rail service across the country,” Shuster said in a statement announcing his plan to marry the highway and PTC extensions. “The sooner we extend this deadline, the more certainty we will give our agricultural, manufacturing, and chemical industries to ensure there will be no supply-chain disruptions.”
[The trains won’t stop running, despite dire warnings about deadline]
Shuster, who has received campaign contributions of $446,079 from the railroad industry since 2001, has expressed reservations in the past about the need for PTC. The mandate would cost the industry $14.7 billion, and federal economists put the cost-benefit ratio at about 20 to 1.
Congress arrived at the Dec. 31 deadline after a head-on train collision in California in 2008 killed 25 people and injured 102 others. The NTSB said PTC could have prevented the accident.
Since then, some railroads, notably Burlington Northern Santa Fe, have made significant progress in installing the complex systems. Others, including Union Pacific, have yet to fully install the system in a single locomotive.
While the railroads have insisted that they will need until 2018 to get PTC installed and, perhaps, two additional years of testing before it becomes fully functional, there also is the possibility that Congress could approve a brief extension — perhaps a matter of months. Then the issue of when the final deadline should be could be addressed in the normal order of business when the House and Senate confer on the larger surface transportation bill. Both House and Senate have included a PTC extension in that legislation.
A congressional aide questioned why the PTC extension was added to the highway bill.
“Why is it that only the railroads are getting this special treatment?” said the aide, who is not authorized to speak publicly. “It’s because they have executed a massive campaign saying it had to be done by Nov. 1.”
Appending additional legislation to extension bills in the past has been cause for friction in the House.
Some in Congress said the industry — and Congress itself — could become accustomed to extensions with harmful consequences. While some delay is now inevitable, Rep. Adam B. Schiff (D-Calif.) wrote in a letter to Shuster on Tuesday that granting a “blanket extension” would send the wrong message.
“I ask that you make clear that a short term extension of the PTC deadline will not become a permanent feature of Congressional action, as it has in so many other cases,” Schiff wrote.
Speaking on the House floor Tuesday, Rep. Janice Hahn (D-Calif.) called the PTC extension “disappointing.”
“The railroads are woefully behind schedule,” she said. “I worry what the consequences will be for this. This has to be the last delay. Congress did not mandate positive train control to be a thorn in the railroad’s side. It was done to save lives.”
Since Congress set the PTC deadline at Dec. 31, the railroad industry has spent $316 million on its lobbying efforts in Washington and contributed more than $24 million to the reelection campaigns of members of Congress, according to the Center for Responsive Politics. Members of the House Transportation Committee received $1.25 million in campaign contributions from the railroads in the last election cycle. As of the end of September, House committee members had received another $721,742 from the railroads.
On the Senate side, 77 senators received nearly $1.5 million in campaign contributions in 2013-2014.
The House and Senate are making progress on passage of a long-awaited, long-term surface transportation bill. The move to extend current funding until Nov. 20 comes in the hope that the two bills can be reconciled in conference committee before that deadline.
“I am confident that we can resolve the differences between the House and Senate measures and produce a final product that’s good for our nation’s infrastructure,” Shuster said in a statement. “This extension [to Nov. 20] will allow the highway bill process to continue moving forward without shutting down transportation programs and projects across the country.”
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EPA Agrees To Add Gas Processors To TRI But Rejects Broader Rulemaking
Oct 27, 2015 | InsideEPA
By Jaclyn Brandt
EPA has agreed to launch a rulemaking to add natural gas processing plants to the industry sectors required to report their chemical releases to the agency's Toxics Release Inventory (TRI), responding in part to a push by environmentalists, but is rejecting advocates' efforts to expand the TRI rules to include oil and gas facilities, such as wells or compressors.
The agency's announcement ends a decades-long question over whether to add oil and gas extraction as a category to TRI because of the agency's concern that many sources may not be considered “facilities” under the law governing TRI.
The oil and gas extraction sector, known by the standard industrial classification (SIC) 13, includes crude oil and natural gas extraction, natural gas drilling liquids, exploration services, drilling wells and field services.
The Environmental Integrity Project (EIP) led 16 other groups, including Natural Resources Defense Council and Clean Air Council in petitioning EPA in 2012 to add SIC 13 to the inventory, saying it was necessary because the industry releases an estimated 127,000 tons of hazardous air pollutants annually.
But EPA is only partially granting the request, saying in an Oct. 22 response to the petition that while the oil and gas extraction sector might use TRI-listed chemicals in significant quantities, its activities are often spread out over a vast geographical region and require few employees to operate.
“Consequently, taking these activities at the smallest individual unit (individual well, compressor station, booster station, etc.), neither the employee nor the chemical thresholds are likely to be met on a regular basis,” EPA says. The agency estimates that as a result subjecting these activities to TRI would present a “limited picture” of the chemical releases from those activities.
GOP senators earlier this year had urged EPA to completely reject the petition, which they called “frivolous, inappropriate, and unnecessary.”
The TRI is a mandatory program requiring companies to annually report their toxic releases of more than 650 listed chemicals. The agency's website says TRI covers "larger facilities involved in manufacturing, metal mining, electric power generation, chemical manufacturing" and other sectors -- but not oil and gas drilling.
Under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), which established the toxics reporting program, EPA has the authority to initiate a rulemaking to subject facilities within an industry sector to TRI. In order to justify adding a sector, the agency must be able to demonstrate that the planned reporting is "warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that release toxic chemicals or to population centers, [and] the history of releases of such chemical at such facility," among other factors.
Advocates' Litigation
To implement the statutory requirements, EPA has developed a three prong test that it uses to determine whether to add a sector for TRI reporting: whether TRI-listed chemicals are "reasonably anticipated" to be present at facilities within a sector, whether facilities manufacture, process or otherwise use the chemicals and whether adding a sector to TRI would be anticipated to increase the information made publicly available.
TRI has built-in thresholds for volumes of chemicals below which operators are not required to report: 25,000 pounds or more of the toxic chemical in the reporting year for manufacturers or processors, and 10,000 pounds or more for chemicals "otherwise used.”
In the environmentalists' 2012 petition and a subsequent lawsuit, EIP, et al., v. EPA, filed Jan. 7 in the U.S. District Court for the District of Columbia to force a response to the petition, the groups argue that the recent advances in technology leading to widespread use of hydraulic fracturing has dramatically increased the number of facilities within the industry and the volume of releases. "Due to inaction by the U.S. Environmental Protection Agency (EPA), the industry remains exempt from one of the nation's most basic toxic pollution reporting mechanisms: the Toxics Release Inventory (TRI)," the suit says.
EPA says in its response that it has determined that natural gas processors may be appropriate for addition to the scope of TRI, given that of the 517 processing plants identified in the lower 48 states as of 2012, the agency estimates that more than half would annually meet TRI reporting thresholds. EPA also flags chemicals listed under TRI that are used in processing, including hydrogen sulfide, benzene, toluene, ethylbenzene and xylene. “With respect to the information factor, the addition of natural gas processing facilities to TRI would meaningfully increase the information available to the public and further the purposes of EPCRA § 313.”
EPA has for more than a decade struggled with legal questions over subjecting the oil and gas drilling sector to TRI, in particular on whether individual wells and other sources of chemical releases, such as compressors, qualify as facilities subject to TRI.
EPA launched a rulemaking in 1996 to begin consideration of the oil and gas extraction industry for addition to TRI, in which it found that the sector "is believed to conduct significant management activities that involve EPCRA section 313 chemicals."
But the agency abandoned the effort, citing technical and legal questions over how to define a standard facility unit and whether wells should be considered "facilities" for the purpose of TRI. “Facilities” are defined in EPCRA as all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person -- prompting EPA to weigh whether individual wells are considered facilities.
Environmentalists argued that EPA "can and should properly apply the 'facility' definition for reporting purposes as encompassing multiple wells and associated components -- such as pits, storage tanks, and processing units -- that are integrated into a common system and operated by a single company." The groups pointed to a 2003 ruling by the U.S. District Court for the Western District of Kentucky, Sierra Club v. Tyson Foods, that they say supports a broad interpretation of the “facility” definition in EPCRA, because the suit involved numerous chicken houses divided among four operations. The court found that each operation constituted a “facility” under EPCRA because they include multiple houses located on single or adjacent sites within a concentrated area. EPA in the response rejects the environmentalists' argument that Sierra Club supports the notion that concentrations of oil and gas wells would also fit within the statutory definition of “facility,” however, finding that the “average distances between these oil and gas operations far exceed the '50 to 60 feet' separating the chicken houses” in the D.C. District Court ruling. “Onshore petroleum and natural gas production operations can be very diverse in arrangement, and are simply not analogous to a number of 'chicken houses' located on a single farm with a single owner/operator,” EPA says.
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EPA Sets Hearings on Power Plant Emissions Plan
Oct 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency scheduled eight days of public hearings on a proposed federal implementation plan for its Clean Power Plan, according to a notice to be published in the Oct. 28 Federal Register.. The EPA Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state, and the EPA has proposed a federal implementation plan (RIN 2060-AS47) for states that choose not to develop their own compliance strategy (205 DEN A-1, 10/23/15). The EPA will hold hearings on the proposed plan Nov. 12-13 in Pittsburgh at the William S. Moorhead Federal Building at 1000 Liberty Ave. Denver hearings are scheduled for Nov. 16-17 at the EPA Region 8 office at 1595 Wynkoop St. Hearings will be held at the EPA headquarters in Washington, D.C., Nov. 18-19. The final hearing will be Nov. 19-20 in Atlanta at the Sam Nunn Atlanta Federal Center Main Tower Bridge Conference Center at 61 Forsyth St., S.W. The EPA hearing notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-27367.pdf.
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Green Groups Move To Help EPA Defend Climate Rule
Oct 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Nine environmental and health groups are asking a federal court to let them help the Obama administration defend its climate change regulation for power plants.
The groups, led by the Environmental Defense Fund (EDF), petitioned the federal Court of Appeals for the District of Columbia Tuesday to be designated as interveners in the lawsuits filed by conservative states, and energy and business interests against the rule.“The organizations are committed to protecting their members and others from the impacts of dangerous air pollution from existing power plants, including climate change and other harms to public health and welfare,” the groups wrote in a statement to the court.
“The Clean Power Plan also will reduce existing power plants’ emissions of smog- and soot-forming pollutants such as sulfur dioxide, nitrogen oxides, and fine particles,” they continued. “These pollution reductions will lower the rates of asthma attacks, respiratory disease, heart attacks, and premature death that occur each year as a result of exposure to such pollutants.”
A coalition of 24 states, led by West Virginia, sued the Environmental Protection Agency (EPA) Friday, seeking to overturn the agency’s carbon limits for power plants, the main pillar of President Obama’s climate change agenda.
Two more states, energy interests, business groups, unions and others filed additional lawsuits against the rule, bringing the total number of cases against it to 21 as of Monday. The court quickly consolidated the cases into one.
Some of the groups in Tuesday’s motion frequently join court cases to defend EPA rules or other environmental measures.
A coalition of liberal states and cities, led by New York State Attorney General Eric Schneiderman, is planning to petition to intervene on the EPA’s behalf.
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Nearly Half of Senate Pledges to Fight EPA Carbon Rules
Oct 28, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
The Senate moved swiftly to push back against Environmental Protection Agency carbon pollution rules with nearly half the chamber backing separate resolutions to overturn the Clean Power Plan and carbon dioxide limits for new and modified power plants.
Sen. Shelley Moore Capito (R-W.Va.) and 48 other senators co-sponsored the resolution (S.J. Res. 24) to kill off the Clean Power Plan, while an effort (S.J. Res. 23) by Senate Majority Leader Mitch McConnell (R-Ky.) to overturn the future power plant rules had the backing of 47 members. Sen. Joe Manchin (D-W.Va.) was the lone Democrat to back both resolutions, while Sen. Heidi Heitkamp (D-N.D.) co-sponsored Capito's.
Both measures are expected to get votes in the Senate during the week of Nov. 16, according to a senior Senate Republican aide.
“The publication of these regulations does not represent an end, but a beginning,” McConnell said on the Senate floor. “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. The battle may not be short or easy. But Kentuckians and hardworking Americans should know that I'm going to keep standing up for them throughout.”
McConnell and Capito introduced their resolutions late Oct. 26 as Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Energy and Power Subcommittee, introduced companion resolutions in the House (207 DEN A-4, 10/27/15).
Unlikely to Become Law
Congress continues to forge ahead with the efforts to scuttle the newly finalized EPA rules, despite the fact they would need two-thirds of both chambers to override a certain veto by President Barack Obama of the resolutions to thwart the foundation of his plan to address climate change.
But the lawmakers say they must get Congress on the record about the EPA regulations, and some believe the votes will be timed to undermine ongoing international negotiations toward an international agreement on climate change in Paris.
First, they must get the resolutions to the Senate floor—a task significantly easier because “when a joint resolution of disapproval meets certain criteria, it cannot be filibustered in the Senate,” according to an April 2015 Congressional Research Service report.
Those conditions include allowing 20 calendar days to pass after a regulation's publication, filing a petition with the signatures of 30 senators and making a nondebatable motion to proceed with consideration of the resolution.
There has been just one successful challenge of a regulation—a final rule from former President Bill Clinton's Labor Department setting ergonomic standards—in the history of the Congressional Review Act.
Some Republicans Don't Join
Seven Republicans did not initially join their party in co-sponsoring the resolutions to overturn the EPA rules—Sens. Kelly Ayotte (N.H.), Mark Kirk (Ill.), Rob Portman (Ohio), Susan Collins (Maine), Dean Heller (Nev.), Cory Gardner (Colo.) and Richard Burr (N.C.).
Ayotte became the first Senate Republican to back the EPA's efforts Oct. 25, while Collins told Bloomberg BNA in August “in general, I support the ability of EPA to issue regulations in this area.” Environmental advocates continue to hope Portman and Kirk, both of whom face competitive re-elections in 2016, may ultimately buck their party on the rules.
Neither Kirk's office nor Portman's responded to requests for comment.
Other Republicans in competitive re-election races next year—Sens. Ron Johnson (Wis.) and Pat Toomey (Pa.)—supported the resolutions of disapproval.
Environmental advocates said they were not surprised by the latest efforts to undermine the EPA regulations, which they said were designed to undermine international negotiations toward an agreement on climate change.
“This is designed to score some political points in hopes of undermining the president's delegation in Paris,” Melinda Pierce, legislative director for the Sierra Club, told Bloomberg BNA Oct. 27. “It's going to hit the brick wall of a presidential veto.”
Environmental Groups Enter Legal Fray
As senators rallied to block the power plant rules, the EPA received some support Oct. 27 when nine environmental groups moved to intervene in a pair of lawsuits challenging the agency's standards (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to intervene 10/27/15; North Dakota v. EPA, D.C. Cir., No. 15-1381, motion to intervene 10/27/15).
The American Lung Association, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, Environmental Defense Fund, Clean Air Council, Clean Wisconsin, Conservation Law Foundation and Ohio Environmental Council asked the U.S. Court of Appeals for the District of Columbia Circuit to allow them to participate in two lawsuits that challenge the Clean Power Plan (RIN 2060-AR33) and new source performance standards for carbon dioxide emissions from new power plants (RIN 2060-AQ91).
The EPA published both rules in the Federal Register Oct. 23, sparking a rash of lawsuits from opponents of the regulations (206 DEN A-14, 10/26/15).
“The Clean Power Plan will help to reduce the growth of atmospheric CO2 concentrations and thereby reduce the threats that climate change poses to the organizations’ members,” the groups said in their motion. “Delay, weakening, or invalidation of the Clean Power Plan would harm the organizations’ members by exacerbating the impacts of climate change.”
In addition to the environmental groups, the American Wind Energy Association and Advanced Energy Economy have also filed in support of the EPA.
Additional states led by New York are also expected to join the EPA in defending the rules.
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Senators Dare Obama To Veto Climate Rule Bills
Oct 27, 2015 | The Hill - E2 Wire
By Devin Henry
A bipartisan group of senators opposed to the EPA's new climate rule for power plants said Tuesday they’ll push forward with resolutions to undo it despite a certain veto from President Obama.
Senate Majority Leader Mitch McConnell (R-Ky.) led a group of members in introducing two Congressional Review Act resolutions against new rules regulating greenhouse gas emissions on new and existing power plants. On Tuesday, he called the rules an “arrogant, single-handed messianic goal to deal with worldwide climate.”The climate rules are deeply unpopular among most Republicans and coal-state Democrats, who have warned that they will drive up energy costs and hurt energy industry jobs. McConnell has said he will call up the CRA resolutions — which would undo the regulations by a majority vote in Congress — to give members a chance to stop the rules.
Rep. Ed Whitfield (R-Ky.) introduced House versions of the resolutions on Monday.
Obama, however, has promised to veto anything blocking the climate rule, something not lost on members pushing the resolutions.
“Even if the president vetoes these resolutions, as we recognize the likelihood that he will, passing them will send a clear message to the world that the American people do not stand behind the president’s efforts to address climate change with economically catastrophic regulations,” Sen. Shelley Moore Capito (R-W.Va.) said during a colloquy with members on Tuesday.
The senators’ resolutions come after the Obama administration published the Clean Power Plan climate rules in the Federal Register last week. The move set off a string of lawsuits and the long-promised effort by lawmakers to block it legislatively.
“I pledge to register my displeasure through multiple channels,” Sen. Heidi Heitkamp (D-N.D.) said. “This legislation, I think, is the most public way to express not only my frustration, but the frustration and concern of my state regulators and my state utilities.”
But Sen. Jim Inhofe (R-Okla.) said the move, even if it dies on Obama's desk, will put senators on the record for or against the regulations.
“We’re going to have a vote, and the vote’s going to take place, and I think our leader is correct when he says that the president will veto this,” he said. But the resolution “forces accountability by people who are answerable to the public.”
Green groups defended the Clean Power Plan on Tuesday, with the Sierra Club calling the CRA resolutions a “futile political ploy by the coal industry and their allies in Congress to derail common sense standards to protect our most vulnerable communities against carbon pollution.”
Sara Chieffo, the League of Conservation Voters’s vice president of government affairs, added: “This is just another dirty attack on the Clean Power Plan by big polluters and their allies in Congress, and we are confident it will ultimately fail.”
McConnell’s office has said he’ll schedule votes on the resolutions soon.
“Our options to stop [the Clean Power Plan] are quite limited,” McConnell said. “We do have the possibility of a CRA. The weakness of that, obviously is that even though we can pass it through here with a simple majority, [Obama is] likely to veto it. … We’re here today to stand up for our people.”
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Five States Challenge EPA Ozone Standards
Oct 28, 2015 | BNA Daily Environment Report
Five states are challenging the Environmental Protection Agency's decision to set more stringent federal air quality standards for ozone (Arizona v. EPA, D.C. Cir., No. 15-1392, 10/27/15). Arizona, Arkansas, New Mexico, North Dakota and Oklahoma filed the lawsuit Oct. 27 in the U.S. Court of Appeals for the District of Columbia Circuit. The EPA published its final rule in the Federal Register Oct. 26, setting the national ambient air quality standards for ozone at 70 parts per billion. Coal giant Murray Energy Corp. has already filed a similar lawsuit challenging the ozone standards (Murray Energy Corp. v. EPA, D.C. Cir., No. 15-1385, 10/26/15; 207 DEN A-1, 10/27/15). Arizona's petition for review is available at http://www.bloomberglaw.com/public/document/State_of_Arizona_v_US_Environmental_Protection_Agency_Docket_No_1. -
EPA Schedules Hearings On Carbon Rule FIP
Oct 27, 2015 | PoliticoPro - Afternoon Energy
EPA will hold four two-day public hearings next month on the proposed federal implementation plan for the Clean Power Plan - aka the plan that would be imposed on states that do not implement their own plan. The hearings will take place in relatively friendly states. EPA will be in Pittsburgh Nov. 12-13; Pennsylvania plans to comply with the rule. Nov. 16-17 is in Denver, Colorado, where the governor supports the rule but the attorney general has sued. Nov. 18-19 is in Washington, D.C., and the tour wraps up Nov. 19-20 in Atlanta. Georgia joined the lawsuit over the Clean Power Plan, but got a break when EPA allowed it to count toward compliance two nuclear reactors under construction. The Peach State is considering compliance options. Details are in tomorrow's Federal Register.
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