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ACC AM Nov 3
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(ACC Mentioned) Tuesday’s Business Agenda
Nov 2, 2015 | The Boston Globe
Forum: Energy recovery - The American Chemistry Council, Associated Industries of Massachusetts, the New England Council, and the Massachusetts Chemistry and Technology Alliance are hosting a forum about converting more nonrecycled waste into energy, fuels, and other commodities... -
(ACC Mentioned) Chemical Ingredients in Building Products: What Do You Really Need to Know?
Nov 2, 2015 | Building Green
By Debra Phillips
Advances in chemistry help to provide a wide variety of high-performance, sustainable building and construction materials at reasonable costs. From roofing membranes that reflect light to window systems that help better regulate internal building temperatures to caulks and sealants used to keep basements dry, chemistry contributes not only... -
GC3 and ACS Launch Green Chemistry Tool
Nov 2, 2015 | Chemical Watch
The Green Chemistry and Commerce Council (GC3) and the Green Chemical Institute division of the American Chemical Society (ACS) have launched an online portal to “connect and expand the green chemistry community”. The Green Chemistry Innovation Portal features an “innovation forum” which GC3's Anna Ivanova... -
Carcinogenicity Reviews of 10 Chemicals Set by WHO
Nov 3, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Solvents, pesticides and other chemicals are among the 10 substances the World Health Organization's cancer research agency will evaluate for carcinogenicity in 2016. WHO's International Agency for Research on Cancer (IARC) recently posted chemical identity, data-submission deadlines and other information regarding three meetings it will... -
(ACC Mentioned) Fast and Precise in Chemical Plant Engineering
Nov 2, 2015 | Cramer Media's Engineering News
Within the next 8 years, investments in chemical plants will double worldwide based on the forecasts of the American Chemical Council. The reasons for this are the global mega trends such as population growth, emerging markets, and the appetite for raw materials. This increases the necessity for the plant designers to demand more machines... -
Cannon Asbestos Scare Raises Safety Questions
Nov 2, 2015 | Roll Call
By Bridget Bowman
An asbestos scare in the Cannon House Office Building over the weekend has raised questions about workplace safety, as construction and renovation of the century-old structure continues. Cannon was closed after work on Oct. 30 and for most of Oct. 31 as engineers and industrial hygienists... -
(ACC Mentioned) Enforcement of R.I.'s Environmental Laws Lax
Nov 2, 2015 | ecoRI News
By Frank Carini
During a recent interview for a story about the importance of wetlands, the interviewee asked a question in the middle of our conversation that neither of us could answer: Why isn’t Rhode Island leading the way when it comes to environmental protections? -
Anti-Fracking Groups To Rally Outside White House
Nov 2, 2015 | E&E News PM
By Amanda Reilly
Groups opposed to hydraulic fracturing plan to rally tomorrow outside the White House, the first in what is being billed as a series of events around the globe in the run-up to the Paris international climate change negotiations. Led by Food & Water Watch, the groups will use the rally to present a letter urging President Obama to reject... -
TransCanada Asks State Department to Pause Keystone Review
Nov 3, 2015 | BNA Daily Environment Report
By Rebecca Penty and Robert Tuttle
TransCanada Corp. is asking Secretary of State John Kerry to pause the U.S. review of its Keystone XL pipeline project as the company seeks to win approval for the route in Nebraska. A suspension of the review would allow Nebraska regulators to make a decision based on the final route for the $8 billion pipeline, the company told Kerry on Nov. 2... -
TransCanada Suspends Request for Permit to Build Keystone Pipeline
Nov 2, 2015 | The New York Times
By Julie Hirschfeld Davis
The company seeking to build the Keystone XL oil pipeline asked the Obama administration on Monday to suspend its yearslong review of the project, potentially bringing an abrupt halt to a politically charged debate that had become part of a broader struggle over President Obama’s environmental policies. -
Keystone Backer Seeks To Put Review On Hold, Likely Through 2016 Election
Nov 2, 2015 | PoliticoPro
By Elana Schor
ransCanada on Monday asked the Obama administration to pause its review of the Keystone XL pipeline, a shift in strategy that could push the fate of the project past the 2016 elections and prompted gleeful environmentalists to declare victory. “Clearly TransCanada has lost and they recognize that... -
Dems, Greens Decry 'Backdoor' Bid To 'Tilt' Litigation
Nov 3, 2015 | E&E Daily News
By Robin Bravender
The nonpartisan Office of the Law Revision Counsel tends to toil in obscurity, but it has been thrust into the spotlight as its work has become central to a political spat surrounding the Obama administration's Clean Power Plan. The office's small staff works out of the Ford House Office Building in Washington, D.C. -
Carson Opposes Clean Power Plan, Contrary To Industry Criticism
Nov 3, 2015 | E&E Daily News
By Jennifer Yachnin
Republican presidential primary contender Ben Carson yesterday dismissed criticism from a coal industry group that asserts the GOP front-runner has not been sufficiently outspoken against the Obama administration's rules to reduce greenhouse gas emissions. A Carson spokesman told E&E Daily last night that the candidate... -
Obama’s Court Quagmire
Nov 2, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama’s environmental agenda hangs in the balance as federal courts consider whether his administration overstepped its authority in drafting a host of regulations designed to combat pollution and climate change. The rules under attack range from standards for hydraulic fracturing to carbon dioxide limits for power plants... -
New Power Plant Effluent Limits Too Costly, Critics Say
Nov 3, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Standards to regulate toxic discharges from power plants will cost more to implement than the Environmental Protection Agency has estimated and will especially burden small and medium facilities, attorneys and consultants told Bloomberg BNA. The EPA's annual average industrywide cost estimate of about $480 million... -
These 13 U.S. States Saw Carbon Pollution Go Up Over a Decade
Nov 2, 2015 | National Geographic
By Christina Nunez
Some U.S. states, such as Maine, are already well on their way to meeting new federal targets aimed at curbing emissions of carbon dioxide. But 13 states have been moving in the opposite direction. While levels of the heat-trapping greenhouse gas went down in 37 states and the District of Columbia between ... -
EPA Cracking Down On Water Pollution
Nov 2, 2015 | The Hill - E2 Wire
By Tim Devaney
The Environmental Protection Agency (EPA) is formalizing new water pollution rules. The water pollution rules announced in September will be published in Tuesday’s edition of the Federal Register, officially kicking off the 60-day period before they go into effect. -
Advocates Argue CWA Gives EPA Legal Duty To Review Downstream Impacts
Nov 2, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists in a recent amicus curiae brief supporting EPA’s decision to veto disposal sites underlying a final Clean Water Act (CWA) permit for a coal mine are arguing that the agency’s section 404(c) authority under the water law conveys a “legal duty” to consider downstream impacts of discharges when making such decisions. -
U.S. Chamber Warns Senators On WOTUS
Nov 3, 2015 | E&E Daily News
By Geof Koss
With the Senate poised to take a procedural vote today on barring the Obama administration's Waters of the U.S. rule, the U.S. Chamber of Commerce is telling senators it's keeping tabs on the tally. The chamber may "key vote" any roll calls related to the WOTUS rule, including cloture on the motion to proceed ... -
Legal Basis for EPA Climate Rules at Issue in Air Act Tweak
Nov 3, 2015 | BNA Daily Environment Report
By Anthony Adragna
Three senior Republicans on the House Energy and Commerce Committee accused the Environmental Protection Agency Nov. 2 of not cooperating on a technical fix to the Clean Air Act because the agency believed doing so would undermine its legal position on the Clean Power Plan.
Industry and Association News
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Energy and Environment News
Full Text of Stories Below
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(ACC Mentioned) Tuesday’s Business Agenda
Nov 2, 2015 | The Boston Globe
Forum
Energy recovery
The American Chemistry Council, Associated Industries of Massachusetts, the New England Council, and the Massachusetts Chemistry and Technology Alliance are hosting a forum about converting more nonrecycled waste into energy, fuels, and other commodities. Lunch is provided. Tuesday, 11:30 a.m. to 1 p.m., Omni Parker House, 60 School St., Boston. Free.
Workshop
Technology for the classroom
LearnLaunch Institute, a nonprofit that aims to increase student achievement with digital technologies, is organizing part four of a five-part series on educational technology. Tuesday’s workshop is called “getting your edtech product noticed.” First Republic Bank is the event sponsor. 6 p.m. to 8 p.m., First Republic Bank, 160 Federal St., Boston. $25.
Discussion
Sustainability
The Boston Area Sustainability Group, which holds monthly networking meetings, is focusing the November discussion on “business community as a change agent.” Tuesday, 6 p.m. to 8:30 p.m., CIC Cambridge, One Broadway, Cambridge. $10 for students, $12 for professionals.
Workshop
Asking for money
Angel investors are speaking on how to approach investors for money. The workshop is organized by The Capital Network, a group that provides financial education to entrepreneurs. Wednesday, 11:45 a.m. to 2 p.m., Nutter McClennen & Fish LLP, 155 Seaport Boulevard, Boston. Free for Accelerated Education Program members, $30 for nonmembers.
Breakfast
Economic growth in Newton and Needham
The Newton-Needham Chamber of Commerce is organizing its 100th annual Achievement Breakfast and the keynote speaker is John Harthorne, founder and chief executive of startup accelerator MassChallenge. Thursday, 7:30 a.m. to 9:30 a.m., Boston Marriott Newton, 2345 Commonwealth Ave., Newton. $50 for Chamber members, $60 for nonmembers.
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(ACC Mentioned) Chemical Ingredients in Building Products: What Do You Really Need to Know?
Nov 2, 2015 | Building Green
By Debra Phillips
Advances in chemistry help to provide a wide variety of high-performance, sustainable building and construction materials at reasonable costs.
From roofing membranes that reflect light to window systems that help better regulate internal building temperatures to caulks and sealants used to keep basements dry, chemistry contributes not only to performance but also to the aesthetics, resilience, and energy efficiency of buildings every day.
Amid growing interest in the chemical ingredients that enable these material and technological innovations, designers, architects, and builders are seeking more information about what’s in the materials used in building and construction, how they affect product performance, and whether there are any potential risks to building occupants associated with the use of these products. Some tools are better than others
The American Chemistry Council (ACC) understands the value of sharing information about chemicals along the building and construction value chain and in fact requires this type of information sharing under the Responsible Care Product Safety Code.
Some tools, however, such as Health Product Declarations (HPDs), that seek to generate more information about the detailed chemical composition of each building material, seem to suggest that this information can be used in isolation to make decisions about the safety and environmental performance of a product. We disagree.
Simply listing ingredients and their potential hazard offers an inherently incomplete picture of both the ingredient and the product itself, and misses important factors needed to accurately account for the safety profiles of chemicals used in products, such as amount used or real-life exposure.
They also fail to take into account how these chemicals and products contribute to improved energy efficiency, reduced water use, or lower greenhouse gas emissions. Such an approach can lead to ill-informed decision-making and can even result in chemical substitutions that may reduce product safety and performance.
An article in this publication this past April highlights this the limitations of HPDs by providing information on five specific chemicals that in their raw form can trigger significant health effects, but when present in final products are highly unlikely to cause harm to building occupants. The author notes that placing these ingredients on an HPD or other list is “confusing and places non-scientists like architects and contractors in the untenable position of making judgment calls about exposure risk—the business of toxicologists and industrial hygienists.” Understanding various screening tools
To address this shortcoming, ACC has been working to demonstrate the technical feasibility of methodologies and frameworks that use more robust scientific, risk-based, and life-cycle approaches to characterizing chemicals in products. Such work includes a comparison of hazard screening tool results when looking at a common set of chemicals, and the testing of a methodology for combining exposure models with existing hazard-based screening tools.
Through this work, ACC is hoping to contribute to the science in this quickly evolving space, and to bring forward the benefits of using scientific, risk-based, life-cycle-oriented approaches as opposed to hazard-oriented listing tools. Managing exposure is key
ACC members work directly with their suppliers, customers and other value-chain participants to foster product safety management and information exchange along the entire value chain.
Through the industry’s Responsible Care performance initiative, ACC members share product safety and stewardship information to enhance the safe use of chemical products. The Responsible Care Product Safety Code articulates specific requirements for companies to cooperate and communicate along their supply chains. Chemical manufacturers engage with their upstream suppliers and downstream customers to ensure that knowledge of potential product hazards, exposure levels and safe handling practices are shared to manage product safety along the lifecycle of chemical products.
Key to this commitment is providing access to safety information in an understandable format. Companies develop material safety and information sheets that contain specific information on a chemical and its safe handling practices, and make these publicly accessible on their own websites as well as through an online portal that contains data on more than 4,600 chemical products. Future of chemical evaluation frameworks
ACC and its members are building relationships with key stakeholders so that there is a better understanding of the steps chemical companies take to manage the safety of their products along their supply chains.
We are engaging in standards-setting processes and stakeholder dialogues, with the goal of value chain reliance on science-, risk-, and life-cycle-based approaches, while at the same time promoting companies’ abilities to develop new, innovative products and solutions in downstream markets such as building and construction.
These dual goals are crucial to continual improvement, which is a core value for chemical manufacturers. ACC members are listening and responding to customers’ desire for innovative chemistries that help make their products perform better and are continually working to review chemicals and their potential hazards and appropriate exposure levels.
We encourage the HPD Collaborative to continue to seek input from all stakeholders, including industry, so we can work together toward a mutual goal of sustainable building and construction products.
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GC3 and ACS Launch Green Chemistry Tool
Nov 2, 2015 | Chemical Watch
The Green Chemistry and Commerce Council (GC3) and the Green Chemical Institute division of the American Chemical Society (ACS) have launched an online portal to “connect and expand the green chemistry community”.
The Green Chemistry Innovation Portal features an “innovation forum” which GC3's Anna Ivanova says is intended to offer “a flexible online space for discussions on green chemistry".
Moderated by the GC3 and ACS, conversations in the forum will be sorted by topic and will allow representatives from corporations, NGOs, academia and the government to: network;stay current with green chemical news; and seek input from experts.
John Frazier, senior director of chemistry for Nike, says the forum is a “Match.com for nerds”, that connects chemical researchers with brands in need of innovation.
Mr Frazier says that “innovation is out there, lots of it”, but that the green chemical community is not yet doing a good job of communicating it. He adds that companies may not clearly articulate their green chemical needs, or that researchers may have developed solutions that companies do not know exist.
Another component of the portal is an “innovation map”. This serves to visually demonstrate the size of, and relationships within, the green chemistry community. It shows players across the green chemistry space and how they are connected. These include: researchers; companies; NGOs; and coalitions.
The ACS hosts the portal, but membership in the organisation is not needed to participate in the forum, or to explore the map.
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Carcinogenicity Reviews of 10 Chemicals Set by WHO
Nov 3, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Solvents, pesticides and other chemicals are among the 10 substances the World Health Organization's cancer research agency will evaluate for carcinogenicity in 2016.
WHO's International Agency for Research on Cancer (IARC) recently posted chemical identity, data-submission deadlines and other information regarding three meetings it will hold in 2016.
The expert panels IARC convenes to evaluate chemicals, pesticides and other environmental exposures classify the carcinogenicity of these exposures, meaning the information provides only the first piece of information needed for a risk assessment. Nevertheless the classifications can trigger some regulatory requirements and affect purchasers decisions.
IARC panels will review the 10 chemicals and pesticides at meetings in February and October; the third meeting the agency announced will review coffee, mate and other “very hot beverages.”
Major Companies; Some Large Production Volumes,
The specific manufacturers of each chemical varies, but U.S. and European companies that make one or more of the compounds IARC will review include Albemarle Europe SPRL, BASF Corp., Dow Chemical Co., Lanxess Corp. and Sigma-Aldrich Co. LLC.
The 10 chemicals—registered for or produced in volumes from less than 1 million to more than 20 million pounds—are:
• hydrazine (Chemical Abstracts Service No. 302-01-2), a chemical used to make pesticides, pharmaceuticals and other chemicals;
• 2-mercaptobenzothiazole (CAS No. 149-30-4), a chemical used to make rubber and used as a fungicide;
• dimethylformamide (CAS No. 68-12-2), a solvent;
• 3-chloro-2-methylpropene (CAS 563-47-3), which is used to make other chemicals and pesticides;
• 1-bromopropane (CAS No. 106-94-5), a solvent;
• dimethyl-p-toluidine (CAS No. 99-97-8), which is used to make dental materials and bone cements;
• tetrabromobisphenol A (CAS No. 79-94-7), a flame retardant;
• pentachlorophenol (CAS No. 87-86-5), a pesticide that was widely used but now is available for limited, restricted applications;
• 2,4,6-trichlorophenol (CAS No. 88-06-2), used as a pesticide and is no longer registered in the U.S.; and
• 3,3',4,4'-tetrachlorobenzene (CAS No. 14047-09-7), which is a byproduct generated by the production of some herbicides.
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(ACC Mentioned) Fast and Precise in Chemical Plant Engineering
Nov 2, 2015 | Cramer Media's Engineering News
Within the next 8 years, investments in chemical plants will double worldwide based on the forecasts of the American Chemical Council. The reasons for this are the global mega trends such as population growth, emerging markets, and the appetite for raw materials. This increases the necessity for the plant designers to demand more machines that allow the time-efficient manufacture of enormous quantities of tubes. It goes without saying that this cannot happen at the expense of quality. This is not an easy task because the high-strength special materials – which are often flanged, beaded or double-walled tubes – require a demanding process.
There are two different production methods that have been established and are being used for chemical plants in order to manufacture tube systems: Welding of bent tube components or the production of complex tube systems by using bending technology. In order to fabricate tubing systems, many manufacturing plants commonly use welding procedures in order to connect straight tube sections with weld-in elbows.
However, this procedure requires very time- and labor-consuming work steps: First, the individual tube components must be welded. Subsequently, each individual weld joint is subject to a costly inspection method that must guarantee the air tightness of the line. Considering the multitude of connecting points, this is a very labor-intensive procedure that may still contain the potential of making errors. The cold bending procedure reduces the required work steps to a minimum. Bending machines can form complex tubing systems from a single piece of blank.
However, not every bending machine can guarantee compliance with the high demands the chemical industry places on the forming process. When selecting the right machine, one must verify that the machine is designed for bending stainless steel tubes and ensures the absolute minimum ovality when forming the tube. The latter is an important requirement for all tubes carrying chemical substances. Eventually, the tubes are cleaned using a spherical object that is slightly narrower in the center; it is referred to as a "PIGs" (Pipeline Inspection Gauges). Excessive ovality in these so-called PIG tubes can lead to chemical residues that become mixed in the next production loop.
The automatic CNC machines of the heavy duty series from Schwarze-Robitec GmbH are optimized precisely to meet the requirements of the chemical industry. They produce three-dimensional tube systems rapidly and exactly. The tube is clamped into the index head and positioned in the space by means of the transport unit and index head. After the first bend, it is directly pushed on and rotated, if required. Thus, three-dimensional tube systems with minimum ovality are produced that fit precisely.
Focusing on increased production rate
When the speedy manufacture of different types of tubes is important, CNC tube bending machines with multi-stack bending tools is a wise choice. The multi-stack bending tools allow you to process tubes with different nominal diameters on a single system without retrofitting efforts. One of these systems is the CNC 220 HD MW of the HD series from Schwarze-Robitec. It bends tubes with a maximum diameter of 219.1 x 12.7 mm and a tube length of up to five meters. With the help of the multi-stack bending tool, up to 70 percent of the setup time of market-based systems can be saved. It is possible to process tubes of different materials, such as steel, nickel alloys, iron and stainless steel on one tool. Time-saving technologies are also available for the forming of double-walled tubes and flanged tubes. For example, Schwarze-Robitec offers flanged tube equipment that takes the flange and sleeve positions into consideration before the bending process starts.
The time-consuming subsequent adding of flanges in order to finished tube bends is omitted, and the tubes can be implemented into existing systems after the bending process is completed. Another “time saver” is marking devices which indicate the positions on the tubes where welds or bypasses are to be implemented after bending.
Smart ways to curb the cost
Long pipelines made of high-quality materials create considerable costs and quite often must be integrated in a space-saving manner. One option are small bending radii. They optimize tube runs enormously if space is limited and reduce the usage of material. For example, the CNC 320 HD from Schwarze-Robitec produces extremely small bending radii of 1.5 x tube diameter. This applies also to large, very thin-walled tubes with a diameter of up to 323.9 mm and a length of 6 m. Similarly tight radii with such large tubes are usually achieved only with warm bending processes or welding elbows – a process that is much slower and more expensive. In addition to a wide variety of CNC controlled machines, the company from Cologne, Germany, also produces semi-automatic systems. Machines such as the SR 320 are perfectly suited for the production of individual bends and small production runs. However, all models of the HD series have one thing in common: A very rugged standard machine with extremely high structural rigidity. It withstands the enormous bending forces. Based on the tremendous power reserves of its clamping forces, the machine produces optimum bending results. Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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Cannon Asbestos Scare Raises Safety Questions
Nov 2, 2015 | Roll Call
By Bridget Bowman
An asbestos scare in the Cannon House Office Building over the weekend has raised questions about workplace safety, as construction and renovation of the century-old structure continues.
Cannon was closed after work on Oct. 30 and for most of Oct. 31 as engineers and industrial hygienists investigated a potential asbestos leak during the ongoing Cannon Renewal Project. Though preliminary air samples tested negative for the carcinogen, the Architect of the Capitol’s website indicated late on Oct. 31 that “sample results were well below the regulatory limit for general space occupancy.”
In other words, some traces of the chemical were found in the air, which was tested by an “an independent, accredited lab” according to the AOC, but those levels were not considered harmful. A spokeswoman for the AOC did not return multiple requests for comment about whether any changes are being implemented following the asbestos scare.
The AOC has also not provided information about if and how many workers were potentially exposed, but did note on its site, “There were no injuries associated with this event.”
According to the union representing the Capitol Police force, the police department emailed officers working in the area telling them the AOC found the asbestos levels were safe.
“We are waiting to hear back from the officers to determine if the email specifically stated the found [Permissible Exposure Levels],” U.S. Capitol Police Labor Committee Chairman Jim Konczos wrote in an email to CQ Roll Call Monday. “If not, the union will request on their behalf the actual findings for the [officers’] peace of mind.”
This would not be the first time a union stepped in to seek more information about potential asbestos exposure for Capitol employees.
In July 2014, a spill that occurred during asbestos abatement closed the House side of the Capitol, delaying legislative business that morning. Two months later, the union representing AOC workers, American Federation of State, County, and Municipal Employees Local 626, claimed the AOC was not cooperating with requests for information about workers who were exposed to asbestos during the spill. The president of Local 626 did not respond to multiple requests for comment on the recent Cannon incident.
Local 626 and the Capitol Police union filed three separate complaints relating to the July 2014 incident with Congress’ Office of Compliance, which oversees workplace grievances at the Capitol. According to the office’s Deputy Executive Director Paula Sumberg, all three cases are still open.
“In each of these cases, we have identified the steps that should be taken to minimize the chances that a similar incident will recur and we are working with the AOC to ensure that those steps are being taken,” Sumberg wrote in an email to CQ Roll Call Monday.
Sumberg would not say what those steps entailed, citing a policy of not discussing details of pending cases. But she said the AOC is expected to close the cases “this fall.” A spokeswoman for the AOC did not return multiple requests for comment about whether the lessons learned from the 2014 situation would be applied to the Cannon Renewal Project.
The $752.7 million project to revitalize the oldest congressional office building is expected to last 10 years, and is currently in “phase 0.” This phase is focused on installing building systems in the basement. A portion of Cannon basement’s West Corridor is closed until the end of November and the west side of the building’s garage will be closed for the rest of the year.
Asbestos abatement remains an ongoing challenge for revitalizing the Capitol and the office buildings, which are decades, and, in the case of Cannon, more than a century old.
For example, in 2012, the Office of Compliance closed a 13-year case involving 10 workers who were exposed to asbestos while working in Capitol tunnels, and developed lifelong health problems.
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(ACC Mentioned) Enforcement of R.I.'s Environmental Laws Lax
Nov 2, 2015 | ecoRI News
By Frank Carini
During a recent interview for a story about the importance of wetlands, the interviewee asked a question in the middle of our conversation that neither of us could answer: Why isn’t Rhode Island leading the way when it comes to environmental protections?
Sure, the state has a fine collection of successes — the Coastal Resources Management Council's leadership on the climate-change front, the Narragansett Bay Commission’s combined sewer overflow project and the new Infrastructure Bank — but the collective work of the executive and legislative branches during the past four decades has treated the environment as an afterthought. That indifference has trickled down to the municipal level.
The state that created the moniker “Ocean State,” in 1972, to attract tourists and energize the economy should have done more since then to protect its 400 miles of coastline and unique collection of natural resources. Rhode Island has passed plenty of laws purportedly created to protect the environment since that day 43 years ago, but many of them are inadequate and most aren’t enforced, or are enforced selectively depending on who "knows a guy."“The environment is seen as a this or that thing, not as our world, our lives,” said Meg Kerr, director of Clean Water Action Rhode Island. “We put it in its own little box.”
It’s not wise, on so many levels, to put Mother Nature in a corner, but the Ocean State plows ahead hardening the shoreline, destroying wetlands and pretending natural gas isn’t a fossil fuel.
On the flip side, local environmentalists and conservationists are quick to tout the successful passage of open space and clean water bonds, noting such ballot questions typically pass with about 60 percent of the vote. But what good is all that bond money if environmental laws are ineffective and/or seldom enforced, government leadership on the issue consistently lacking, and many state lawmakers deaf to the collective voice of the electorate?
All Rhode Islanders live within a 30-minute drive to Narragansett Bay or the Atlantic Ocean, and Rhode Island has a wonderful collection of preserved places, but most of the work needed to protect these natural resources has and is being done by non-governmental organizations, small nonprofits and selfless volunteers.
These organizations and people work to restore damaged wetlands and abused rivers. Much of their time is spent dealing with inflexible state agencies and rolls of red tape. They are left alone to battle well-funded D.C. lobbyists and special interest groups, such as the American Petroleum Institute and the American Chemical Council.
During the 2015 session, for example, the General Assembly ignored efforts to reduce the load of toxic chemicals the public is exposed to in everyday products. Bans on products containing formaldehyde, bisphenol A and carcinogenic flame retardants died in committee. Six industry lobbyists testified against the bills.
Janet Coit, director of the Rhode Island Department of Environmental Management (DEM) since 2011, recently told ecoRI News that environmental laws protect public and environmental health and help make Rhode Island a place where people want to live, work and play.
“It can’t be about big business versus the environment,” she said. “That can’t be the dichotomy. Both are extremely important. Our parks, beaches, bike paths and forestry are part of the tourism economy, but they also contribute to quality of community and their health."
She's right, but evidence suggests the playing field still tilts heavily toward business interests.
Statehouse leadership has long seemed to consider the natural world an impediment to job creation and economic development. During the 2014 election season, in a time of growing climate-change concern, especially for a state with a built-up coastline, the main party candidates for governor could scarcely be bothered to talk about environment protections during their campaigns and choreographed debates. The winner, however, did pledge to elevate Rhode Island’s rank as a tourist destination.
DEM, the state agency responsible for protecting the Ocean State’s natural resources, was neutered in the mid-1990s by lawmakers more concerned about business relationships than environmental protections.
Since that business-friendly House commission power play of 20 years ago — referred to as the “Kennedy Commission” by those who were interrogated for wanting clean water, land and air — Rhode Island’s elected leaders have continued to ignore the fact that protecting the environment and investing in healthy ecosystems has the dual benefit of sustaining the economy and protecting public health.
“There’s this deep-rooted mindset that protecting the environment somehow hinders the economy,” said Topher Hamblett, Save The Bay’s advocacy director. “The idea is completely wrong.”
This mindset, however, drives Rhode Island policy. The Ocean State relies significantly on the natural world to steer its economy, but the state’s collective actions during the past four decades appear more concerned with placating those interested in abusing the environment.
Those around for the Kennedy Commission’s witch-hunt say DEM management and staff were unnecessarily vilified and humiliated. The institutional memory of that pro-business tirade by still-sitting legislators haunts the agency’s Foundry offices.
“Rhode Island stands to lose a lot if its natural resources dwindle and suffer,” said Jan Reitsma, DEM’s director from 1999-2003. “(Legislators) need to recognize the value of the state’s beaches and parks and invest in their protection in the correct way.”
A litany of toxic actions
For years municipalities such as Portsmouth and Warwick and the General Assembly in particular allowed a small band of vociferous residents with not-so-limited-resources and the overly influential Rhode Island Association of Realtors to delay action — by falsely scaring people into believing they would lose their homes and the real-estate market would collapse — aimed at phasing out cesspools, which, even when “working properly,” do nothing but push raw sewage and other untreated waste underground, where this toxic concoction migrates to drinking-water sources and swimming holes.It took a lawsuit and the Environmental Protection Agency (EPA) calling it one of the worst treatment plants in the United States for much-needed improvements to be done, in the 1980s, at Providence’s Fields Point wastewater treatment facility.
In 1989, 17 years after the Clean Water Act became federal law, Clean Water Action’s Kerr moved to Rhode Island — from Washington, D.C., and North Carolina, where she had spent the previous nine years working for the EPA and North Carolina’s environmental department — and bought a home on Seaview Avenue in Cranston. She was stunned to discover 20 homes on that street, including her own, discharged wastewater directly into Pawtuxet Cove and Narragansett Bay.
“Straight pipes from the homes right into the cove and the bay. No sewage treatment at all,” Kerr recalled. “I’m still amazed the state allowed that to happen.”
That environmental/public-health problem was corrected in the early 1990s, but Rhode Island’s environmental vision remains out of focus.
For instance, Rhode Island banned new cesspool construction in 1968, four years before the Clean Water Act, but, nearly five decades later, the state still has some 24,000 holes in the ground being filled with human waste. Groundwater near cesspools contains up to 77,000 times the amount of fecal material as groundwater close to septic systems. Cesspools have been linked to Rhode Island beach closures.
This year the General Assembly — thanks to tireless work by Save The Bay’s Hamblett and a few determined legislators — finally got around to enacting a law that phases out cesspools. The law goes into effect Jan. 1, but phase-outs are tied to the sale of property, which will prolong the continued use of many cesspools for decades.
This celebrated law — environmentalists embrace all victories, as even the small ones take plenty of finesse and persistence — basically punishes those who ignored the manufactured fear and already replaced their cesspools, even if it cost them some of their savings. That’s what responsible homeowners do.
At the bill’s signing ceremony, Gov. Gina Raimondo proclaimed the new cesspool law will create construction jobs, increase property values, and make the state cleaner and healthier. She forgot to mention none of that will happen anytime soon.
The governor’s office declined to comment for this story.
“At some point we’ll realize that all these degradations we are doing to our rivers and streams don’t have to happen,” said Paul Roselli, president of the Burrillville Land Trust. “Pressure on our natural resources is too great, but it’s difficult for us to even make simple changes, like diverting stormwater from a parking lot that is flowing directly into a stream below. We’re in a constant rush for economic development and job creation at almost any cost.”
A few months after signing the cesspool bill into law, Raimondo celebrated the construction of a new natural-gas power plant in Burrillville, by a Chicago-based company, as a job creator. She never mentioned the role fossil fuels play in changing the climate, the environmental damage caused by pumping millions of gallons of water, sand and toxic chemicals underground to break apart rock and release natural gas, or the impact the facility will have on rural Rhode Island.
Once the power plant is built, near the banks of the impaired Clear River, it’s expected to create about 25 jobs.
The Ocean State Steel site is a brownfield on Bourne Avenue in East Providence. The business operated from 1989-1994, when a Superior Court judge ordered the plant shut down because of ongoing air pollution violations. Attempts to bring the facility into compliance were fruitless and, despite the negative impact the polluting operation was having on the local community, pro-business officials in state government were furious when the plant was ordered closed.
“The economic development director at the time went berserk, arguing not to close them down,” recalled Louise Durfee, DEM’s director from 1991-94. “The plant was spewing pollution into the neighborhood and neighbors were concerned and angry. They put up with a lot.”
The Barrington Town Council allows a sales representative employed by a German company that manufactures plastic shopping bags to present a 6-minute infomercial on the virtues of these petroleum pouches. CVS and Shaw’s are exploiting a loophole in the town’s bag ban and the European company sees dollar signs.
State lawmakers annually fail to address the broken formula that funds the Rhode Island Public Transit Authority. In fact, this important sector, which directly impacts the environment, public health and the economy, is routinely ignored by governors and legislators. They certainly haven’t presented any fresh ideas to improve public transit. This past session, legislators were likely too busy discussing the merits of banning some guy’s pet parrot from state campgrounds to properly address this increasingly important issue.
For five years, the state has allowed a waterfront metals recycler in Providence to contaminate the Providence River and upper Narragansett Bay with polluted runoff and fuel from derelict vessels the company has no business storing. The company opened in 2009 without many of the required permits, including the one needed to conduct car-crushing operations.
The low price of scrap metal, not the state, will likely shut down the illegal business, which will then leave behind an ongoing pollution problem and a huge clean-up bill that could end up costing taxpayers millions. The property, a former Superfund site taxpayers already helped clean up, originally became contaminated between 1979 and 1989, when state officials failed to regulate the computer and electronics shredding facility operating there.
“It would be foolish to deny that some of this lack of enforcement stuff isn’t political,” said Reitsma, a former DEM director. “These political connections create a climate that makes it difficult for agencies to do their jobs.”
Save The Bay, the Providence-based nonprofit advocacy organization, largely fought the polluting waterfront scrap-metal recycling operation alone.
“The environment needs to be a bigger priority in state government,” Save The Bay's Hamblett said. “We need to give agencies the ability to do their jobs. They need funding and staff. DEM’s capacity to respond to violations has been eroded.”
Shrinking budget, growing problems
For many frustrated by Rhode Island’s passive approach to environmental protections, DEM takes most of the blame. Much of it isn’t deserved, at least not directly.Local environmentalists note that the Legislature doesn’t allow the beleaguered agency to do its job properly. A long list of governors has failed to provide the agency with the support needed to go punch for punch with an apathetic General Assembly.
“DEM’s overall budget has been cut every year for at least a decade,” Hamblett said. “It can’t do its basic job of protecting Rhode Island’s natural resources. The agency has been pressured to be more friendly to business.”
The agency’s current director said programs, such as Gov. Raimondo’s Lean Initiative and the expedited citation process for alleged noncompliance — enacted in 2013 with 234 citations since issued — have made it easier to deal with budget cuts and staff reductions.
“Every state department has shrunk,” Coit said. “We have to be smarter with our resources and time, and change our way of doing things. We’re getting people out of the office and into the field, inspecting wetlands and checking permits.”
Both Durfee, the agency’s director in the early 1990s, and Kendra Beaver, a DEM attorney for 10 years in the mid-1980s to mid-1990s, saw firsthand the impact of budget cuts and staffing reductions when it came to enforcement. In fact, Durfee was fired by then-Gov. Bruce Sundlun for her differing views regarding the agency’s budgetary needs.
During her tenure as DEM director, Durfee said she regularly received calls from legislators politely asking why this or that project was being held up. It was their subtle way of putting business before wetlands.
“There was always political pressure from the governor’s office and Statehouse,” Durfee said. “Environmental laws are public-health related. They help protect clean air, clean water, the water we drink, groundwater — that idea has become a bit obscured."
The number of full-time employees for DEM is capped at 399, and the agency currently has about 385, according to Rose Amoros Jones, DEM’s chief public affairs officer. The agency's current full-time staff includes 31 environmental police officer positions — four vacant positions need to be filled — 23 employees in the Office of Compliance & Inspection and six attorneys.
DEM’s current budget, according to Amoros Jones, is $99,304,621, including $37.6 million from general revenue, $29.3 million from the federal government and $18.4 million in restricted receipts.
Chris Fox, the executive director of the Wood-Pawcatuck Watershed Association, has butted heads with DEM on more than one occasion, and his organization is regularly cutting through red tape. Despite these many frustrations, however, Fox has the utmost respect for the work the agency does.
He and many others blame the General Assembly and Rhode Island politics for DEM’s failures.
“Fortunately, we have an agency with employees that really care about the environment,” Fox said. “Unfortunately, DEM isn’t given the necessary tools, staffing and money to do the job it wants to do.”The state’s business-friendly approach to environmental management hasn’t gone unnoticed by those concerned about Rhode Island’s natural resources or those worried about their own health.
For instance, some residents of Westerly and Charlestown claim the state's business-first approach has damaged local wetlands and put their health at risk. This group of concerned residents spent five years fighting a quarrying operation, begun in 2010 by an out-of-state company with a less-than-stellar reputation, in the middle of a residential neighborhood and between two of Rhode Island’s protected treasurers — the Woody Hill Management Area and Burlingame State Park.
Despite repeated and constant pleas, quarry neighbors claim DEM, local officials and state lawmakers did little to address their concerns. Amoros Jones said DEM conducted nearly 80 inspections at the quarry for air pollution violations, and conducted water pollution, solid waste, hazardous waste and freshwater wetlands inspections. This past legislative session the General Assembly passed a law largely written to address problems at the quarry.
Residents say those efforts came long after damage was done. Their biggest concern is the 80-million-pound mountain chain of stone dust on the 108-acre property and the ongoing health and environmental problems posed by those 40,000 tons.
Silica dust, created by the crushing and/or cutting of materials such as stone, rock, concrete, brick and block, is a known human carcinogen. Prolonged exposure to crystalline silica can lead to the lung disease silicosis and to lung cancer, according to the Centers for Disease Control and Prevention.
“DEM is like a blockade,” Charlestown resident Susan Clayton, who lives about a football field from the quarry and is currently battling cancer, told ecoRI News in early September. “We left voice-mail messages but never heard anything back. Taxpayers and individuals will be left to carry the load of problems created by this quarry.”
Earlier this year, DEM admitted Copar Quarries failed to comply with a consent agreement that addressed water pollution, but the business, like the one on Providence’s waterfront, wasn't forced to do anything. In fact, bankruptcy, not any state agency, ultimately addressed the neighbors’ longstanding concerns about the operation.
During a Statehouse hearing last spring, a DEM official told the House Committee on Municipal Government that the agency lacked a sufficient number of inspectors and lawyers to properly regulate the Copar operation.
Some of the people ecoRI News spoke with for this story during the past six months said they are tired of hearing excuses — particularly about not having enough staff or funding — as to why the state agency doesn’t fulfill its mission, as stated on the DEM website: “Preserving the quality of Rhode Island’s environment, maintaining the health and safety of its residents, and protecting the natural systems upon which life depends.”Westerly resident Charles Marsh, a vocal opponent of Copar who is also concerned about the damage being done to South County wetlands by industrial operations and development, said Rhode Island continues to pass laws that state agencies, such as DEM, fail to enforce. What’s the point, he and others ask?
“Nobody is ever going to be compensated for the environmental damage and public-health damage that has been done,” Marsh said. “Taxpayers will pay for all of it. Cronyism is the root cause of most of Rhode Island’s problems. Our political animals aren’t worried about the environment and public health.”
He noted that the health of a neighborhood was jeopardized for the sake of quarry business interests. “We’re willing to risk Rhode Island’s drinking water by not enforcing environmental laws,” Marsh said.
DEM enforcement negligence ranges from minor impacts, such as ignoring the use of gas-powered boats on Wallum Lake, to major ones, such as allowing businesses to operate illegally without the proper permits and not holding other state agencies accountable for their environmental violations.
The Electronic Waste Prevention, Reuse and Recycling Act was passed in 2008, requiring all Rhode Island businesses to recycle. About 50 percent to 55 percent of the waste that is buried annually in the Central Landfill is commercial, according to the Rhode Island Resource Recovery Corporation. The quasi-government organization is currently studying how much of that material is recyclable — odds are much of it is.
DEM employees have admitted many, if not most, Rhode Island businesses don’t recycle property. Most of the state's public schools don't even recycle. On the DEM website, the state agency even provides built-in excuses for businesses: added cost, space constraints or time commitment for training staff. On the same webpage, the agency also notes that Rhode Island needs to take a more active role in diverting waste from the landfill.
In the seven years since the recycling law was enacted, DEM has neither warned nor fined any business for noncompliance. The reason, according to Amoros Jones, is that no complaint has ever been filed. While the commercial sector isn’t held accountable for known, and sometimes obvious, recycling violations, residents who abstain from recycling have been fined or don’t have their trash bins emptied.
Food scrap is the single largest type of waste entering U.S. landfills, according to the EPA. An estimated 250 tons of organic waste heads to the Central Landfill daily, and only about 2 percent of Rhode Island’s compostable waste is diverted, according to the federal agency.
Rhode Island lawmakers have long ignored the need to divert food scrap from the ever-shrinking Central Landfill in Johnston. They have even ignored the job-creating promise of such diversion. They certainly haven’t embraced the environmental importance of composting.
Last year, when the General Assembly finally did act, it passed a diluted law that is less stringent than similar laws in neighboring states. The initial version of the bill required composting for all institutions by 2021. But after opposition from restaurants and school groups, the compliance threshold was reduced to a smaller pool of institutions — those that generate 2 tons or more of organic waste weekly.
Several exemptions also were added, such as a “fair-price” provision that allows institutions to opt out if it’s cheaper to ship food scrap to the landfill. K-12 public schools were exempted. No incentives created to push statewide composting forward; just more excuses to keep burying food scrap.Then, sometime in the near future, when Johnston residents inevitably complain about foul odors, shortsighted lawmakers will grill Rhode Island Resource Recovery Corporation staff about the problem and demand action. A study commission will be formed to address the problem. It will recommend that Rhode Island create a statewide composting program. Special interest groups and lobbyists will complain. The study will end up in a Dumpster.
Lack of enforcement
This past summer, DEM’s Division of Law Enforcement conducted multi-day operations that targeted the illegal fishing of striped bass. Among those arrested was a 72-year-old Charlestown man charged with the possession of striped bass during Rhode Island’s closed season.In fact, from June to September, the agency’s environmental police arrested about 40 people on such charges as taking blue crabs at night, being in possession of undersized scup, being in possession of tautog during closed season, and taking shellfish from a polluted area.
The polluted area was likely contaminated by a combination of stormwater runoff, lawn chemicals and discharges from wastewater treatment plants. All problems the state has long ignored or has been slow to recognize.
While targeting the infractions of individuals — some of whom may be trying to feed their families with undersized black sea bass — the state continues to ignore the big environmental picture. But it’s far easier and politically safer to arrest senior citizens and immigrants for exceeding the daily limit of summer flounder.
DEM's Office of Compliance & Inspection, which is typically enforcing more complex and egregious environmental violations than, say, busting some guy for possessing illegally caught striped bass and trying to sell them across state lines, actually has eight fewer full-time employees than the agency's Division of Law Enforcement, which received help from the National Oceanic and Atmospheric Administration's Office of Law Enforcement to bring the 72-year-old Charlestown man to justice.
Neither division has enough staff to properly inspect, monitor and enforce Rhode Island's environmental laws. The Providence Police Department, for the sake of comparison, has 26 parking enforcement officers.
In the 10 years from 2003-2013 fines imposed by the DEM declined by more than half, from $1.1 million to $439,000, according to a 2014 NBC 10 I-Team report.
“Don’t try to tell me people aren’t violating environmental laws,” said Beaver, a former DEM attorney who is now the staff attorney for Save The Bay, referring to the steady decline of violations issued by the Office of Compliance & Inspection. “It’s not credible. It’s because enforcement is equated with being anti-business.”
Three years ago, out-of-state fishing trawlers, each about 150 feet long, scooped up massive hauls of herring off the Narragansett and Charlestown coast and allegedly damaged fishing equipment and boats. Several legislators and local fishermen expressed concern, and lawmakers introduced a bill to ban pair-trawling, like it is in Narragansett Bay.
DEM didn’t oppose or endorse the bill, which eventually died in committee. The agency wasn’t terribly worried about overfishing, but did express concern about the economic impact of fishing revenue moving out of state. Responsible environmental management didn’t seem to be a big concern for the agency responsible for providing it. The fight was too big.
Instead, at roughly the same time pair trawlers were gorging on herring, Rhode Island lawmakers were eagerly working to get “Rhode Island-style” calamari recognized as the official state appetizer, in hopes of giving the Ocean State its equivalent to the Maine lobster. The silly bill passed.
Addressing how to protect the Ocean State’s coastal waters and the life they support remains a conversation-in-waiting for other people’s kids. Business interests take precedent over natural resources, leaving state agencies to focus on the infractions that produce the least amount of resistance — to the detriment of the environment, public health and future generations.
In fact, as the system works now, companies that comply with Rhode Island’s largely unenforced environmental regulations are at an economic disadvantage — for bearing the cost of conducting their business responsibly.
“Lots of business people are good environmental citizens,” said Reitsma, a former DEM director. “A lot of people in the business community get the importance of environmental protections. Yet, at the same time, they see cheaters go unpunished.”
A Providence resident who works for an environmental consulting company with clients in Rhode Island told ecoRI News the current system, which has allowed companies to operate without the proper permits, angers businesses that want to comply. The individual, who didn’t want to be named, also said DEM’s backlog — the agency began 2013 with 152 cases pending and ended the year with 151, for example — its outdated technology and lack of attentiveness frustrates all businesses, regardless of their compliance intentions.
Like so many other people interviewed for this story, the person asked, “Why are there mountains of paperwork for regulations that aren’t enforced?”
Beaver said Rhode Island must enforce its environmental penalties, in the interest of environmental, societal and economic justice. “We can’t just make laws and then just not enforce them,” she said.
Reitsma said businesses know that if they appeal enforcement actions they will end up paying much less. “DEM doesn’t have enough lawyers ... so why would a business pay a fine when they know negotiations will wear (DEM) out and the cost will go down?” he said. “It’s a strange way to do enforcement.”
Leadership void
For a state that is only 37 miles wide and 48 miles long, it would seem state and local government, its 45 land trusts, numerous environmental organizations, its academic institutions and the business community could better work together protecting the resources that make Rhode Island the Ocean State.Unfortunately, both the private and public sector work in a vacuum when it comes to protecting the environment. Since state agencies aren’t on the same page — even divisions within a single agency have no idea what the other is doing — and duplicating efforts, Rhode Island’s entrenched bureaucracy grows stronger by the year.“There’s no real leadership in the House, Senate and governor’s office to adequately address the environment,” said Roselli, the Burrillville Land Trust president. “The tide has shifted away from regulatory compliance. The cesspool bill, for as good as it is, was an easy bill to pass. It’s a step in the right direction, but real leadership would ask how do we accelerate this?”
All of this dysfunction, which isn’t unique to the environment sector, comes from years of practice. The legislative and executive branches of Rhode Island government are slow to embrace change or recognize 21st-century challenges, especially when its comes to the environment. This lack of emphasis on protecting the Ocean State’s natural resources is a top-down problem that runs through all state agencies. They’ve been infected for quite sometime.
The Rhode Island Department of Transportation (DOT), for example, is facing pressure and fines — to be paid by Ocean State taxpayers — from the U.S. Department of Justice because of environmental damage caused by years of inadequately monitoring highway runoff. DEM, for its part, never enforced the permit.
DOT officials have noted that the state has never compiled a full inventory of its highway drainage system. In fact, during a recent Statehouse press briefing, DOT director Peter Alviti admitted his agency doesn’t even know where all of the parts are located.
In a press release to address the state’s noncompliance, complete with quotes from Gov. Raimondo and Alviti, that touts all the progress Rhode Island is making on the environmental front, DOT proclaims this assessment “will provide a comprehensive inventory of these assets and help the Department take a proactive approach to cleaning and maintaining these structures, rather than just responding to reports of flooding and damaged drainage systems.”
This action comes decades late, and after plenty of environmental damage has already been done. After the federal government forced DOT to do its job, its director gushed about the Ocean State’s beauty. “Rhode Island is blessed with abundant natural resources including Narragansett Bay and hundreds of lakes, ponds and rivers. It is imperative that we protect these fragile resources.”
To be fair, DOT’s environmental ignorance began long before Raimondo was elected in 2014 and Alviti was hired this year, but their reaction, perhaps sincere, comes across as hollow in the wake of four decades of empty leadership rhetoric about protecting the environment.
For all the talk about the importance of mitigating stormwater runoff, Rhode Island government, at both the state and municipal level, has been slow to minimize this pollution tidal wave.
A stormwater utility district, an idea first introduced in the United States in the mid-1970s, is essentially a tax designed to generate funding for stormwater management. About 2,000 U.S. municipalities have such districts, according to the EPA. The Rhode Island Stormwater Management and Utility District Act of 2002 authorizes cities and towns to create such districts, “to eliminate and prevent the contamination of the state’s waters and to operate and maintain existing stormwater conveyance systems.”
No Rhode Island municipality has adopted a stormwater utility district. A few, however, are studying the idea.
Conservationists and business did work together this year with lawmakers to pass a wetlands bill, which basically created statewide guidelines for building near wetlands. Progress, for sure, but really only a tiny step in a marathon.
“The bill that was passed is better than what was in place, but it is worrisome that development organizations were in favor of it,” Roselli said. “Builders gained a lot by these new uniform wetlands codes. It’s a big win for builders. Let’s not kid ourselves.”
Builders certainly held plenty of sway in crafting the bill. During its final meeting, task force members voted 15-1 to give municipalities the option to protect sensitive ecological areas with a 300-foot “critical resource area.” Only the Rhode Island Builders Association opposed the idea; it never made it into the bill that eventually passed.
Gov. Raimondo’s praise for this new law is even a bit one-sided. “This legislation is an example of the good we can achieve when business, environmental groups and government work together. By streamlining wetlands permitting, our state is moving at the speed of business. Not only does this legislation build upon the other environmental successes our legislators have had this session, but it will spur economic development and make it easier to [sic] business in the Ocean State.”
A dozen years ago, state government and the private sector came together quickly and effectively to address an environmental disaster, creating a plan that has since reduced nitrogen inputs from wastewater treatment plants by 50 percent. It took a major fish kill in Greenwich Bay in 2003 to spur this collaboration. Properly protecting Rhode Island’s natural resources, however, demands a more proactive approach.
“It takes years of pushing and cajoling to get environmental laws done,” said Save The Bay’s Hamblett. “You can’t expect any legislature to act without a push from the environmental community to develop stronger policies.”
Regulations and policies without enforcement and incentives, however, are meaningless and burdensome. Rhode Island’s continued lack of environmental enforcement, from allowing rogue scrap-metal recyclers to pollute a waterfront to the state’s own contributions to ongoing environmental degradation, comes with a price, and the bill usually comes due after elected leaders have left office.
“Taxpayers are eventually going to pay for all this lack of enforcement,” said Kerr of Clean Water Action.
During the past few years even the state’s largest private foundation, the Rhode Island Foundation, has diminished its environmental support to focus more on economic growth.*
Last year, in an effort to be more user friendly, the DEM opened a new Permit Application Center to make the agency more responsive to the needs of businesses. The project was partially funded by a $47,000 grant through the Rhode Island Foundation’s Make It Happen RI economic development initiative and included redoing the agency’s main lobby.
According to the many people ecoRI News spoke with for this story, piecemeal projects, poorly supported initiatives and ignored studies do little to properly protect Rhode Island’s natural resources or improve the state’s business climate.
Former DEM director Durfee noted that consultants hired to navigate businesses through the permitting process often blame the state agency for their own delays. The excuse always works.
Former DEM director Reitsma said Rhode Island needs to streamline its ad hoc collection of regulations, incentivize environmental protections and more harshly punish businesses that fail to comply. He said DEM is too busy getting beat up on multiple fronts to work effectively.
“The agency is digging in to protect itself. It’s afraid to be bold,” he said. “Our political leaders have to have the guts to say we support environmental protections.”
A prescription that may be tough to swallow
A healthy environment is routinely identified, in dust-covered reports, at staged media events, during task force meetings and in the media, as an economic asset — the subtle implication being that Rhode Island’s natural resources are there to be exploited.Less frequently discussed in the upper reaches of Rhode Island deal-making class are the vital services the state’s collection of salt marshes, forests and estuaries provide. They reduce flooding, protect the coastline from storm surge and heavy winds, and provide clean air and drinking water.
They also are taken for granted, and their priceless functions threatened and often destroyed for private profit. It will take political will, pushed for by the voting public, to stop Rhode Island’s march to incessant economic development at all costs, according to those currently doing most of the pushing.
Reitsma pointed to the Regional Greenhouse Gas Initiative as example of what can be done when various parties work together and combine resources. “The amount of emissions reduced by this initiative has been astounding,” he said. “It’s a perfect example of how things can and should be done.”
Unsurprisingly, some members of the General Assembly have attacked the successful program.Asking residents to use rain barrels, encouraging businesses to use permeable pavers and applauding municipalities for mitigating stormwater runoff with rain gardens means little if Rhode Island’s legislative and executive branches continue to allow economic growth to dominate the conversation.
Hamblett said environmental advocacy alone isn’t going to change the state’s collective mindset. “Business owners need to see the value strong enforcement and strong permitting have on the environment and economy,” he said. “Improving the business climate includes well-resourced, professionally run state agencies that protect our natural resources.”
That type of paradigm shift will require something Rhode Island has been sorely lacking since “Ocean State” replaced “Discover” on license plates.
“It takes strong, gutsy leadership to make tough decisions,” Roselli said.
One such bold idea, proposed by Fox, executive director of the Wood-Pawcatuck Watershed Association, would involve changing the name of DEM to, say, the Department of Natural Resources, purging the existing staff, adequately staffing the re-branded agency by rehiring those who embrace the new direction, and empowering management to make protecting the environment a priority.
Fox also mentioned increasing the cost of hunting and fishing licenses — of which he has both — and state beach passes — he also has one of those — as a way to help better fund environmental protections.
“Everyone’s hands are shackled by our political system,” he said. “It comes down to what the Rhode Island taxpayer is willing to spend. Are we willing to swallow more taxes and make some sacrifices?”
There’s no chance taxpayers answer that question in the affirmative, at least not until Rhode Island’s executive and legislative bodies begin to show some real leadership — the kind that doesn’t waste tax dollars on video-game companies and paying federal fines for destroying our own environment.
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Anti-Fracking Groups To Rally Outside White House
Nov 2, 2015 | E&E News PM
By Amanda Reilly
Groups opposed to hydraulic fracturing plan to rally tomorrow outside the White House, the first in what is being billed as a series of events around the globe in the run-up to the Paris international climate change negotiations.
Led by Food & Water Watch, the groups will use the rally to present a letter urging President Obama to reject any endorsement of hydraulic fracturing as part of the Paris negotiations. More than 1,200 worldwide groups -- 700 of which are based in the United States -- signed the letter, according to a media release about the event.
Nearly 100 people are expected to gather outside the White House around noon tomorrow; they'll have signs and banners in opposition to hydraulic fracturing.
The negotiations in Paris, from which leaders hope to emerge with an international agreement addressing climate change, kick off Nov. 30. The groups plan to deliver the letter to other global leaders at similar events around the world between now and then.
"Specifically, we call on you to reject hydraulic fracturing (fracking) and the use of acidization for oil and natural gas production and all of the related infrastructure," the letter says. "Instead you must take action to move aggressively to a 100 percent renewable energy future, which is necessary for remediating global warming and ensuring climate stability."
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TransCanada Asks State Department to Pause Keystone Review
Nov 3, 2015 | BNA Daily Environment Report
By Rebecca Penty and Robert Tuttle
TransCanada Corp. is asking Secretary of State John Kerry to pause the U.S. review of its Keystone XL pipeline project as the company seeks to win approval for the route in Nebraska.
A suspension of the review would allow Nebraska regulators to make a decision based on the final route for the $8 billion pipeline, the company told Kerry on Nov. 2, according to a copy of a letter e-mailed by a spokesman.
TransCanada decided in September to submit to an additional regulatory review of the line in Nebraska and back off from conflicts with landowners in the state.
“We are asking State to pause its review of Keystone XL based on the fact that we have applied to the Nebraska Public Service Commission for approval of its preferred route in the state,” Russ Girling, TransCanada's chief executive officer, said in a statement from the Calgary-based company.
Keystone XL has become one of the most contentious energy issues of Barack Obama's presidency, and the pause would allow him to put off a tough decision on an issue that has divided key Democratic constituencies.
Supporters have argued it would help Canada develop its energy resources and create jobs, while environmentalists and top Democratic donors argue it would encourage oil sands development and exacerbate climate change.
“It sends a signal that Canadian producers are going to have to find other ways to ship out crude than going through Keystone,” Carl Larry, head of oil and gas for Frost & Sullivan LP in Houston, said in a phone interview. Canada “is realizing the U.S. isn't going to be helpful in pushing Keystone.”
Gulf Coast Refineries
Keystone XL would span 1,179 miles from Alberta through Montana, North Dakota and Nebraska before connecting to an existing pipeline network feeding crude to Gulf Coast refineries. The line would carry as much as 830,000 barrels of crude oil a day, including some from North Dakota's Bakken shale.
White House spokesman Josh Earnest declined to comment on TransCanada's letter, saying it was addressed to the State Department, which is conducting the review.
It's not the worst time to push back the project, however, as energy producers in Canada aren't as desperate for pipeline capacity after shelving a spate of projects to expand oil sands production and as they reducing drilling to conserve cash amid the worst oil price slump in decades.
“At this point in time, there is not a need for it now or in the next three years really,” John Auers, executive vice president at Turner Mason & Co., an energy consulting firm in Dallas, said by phone. “It's certainly possible TransCanada realizes that, and they are taking their time.”
Other Alternatives
The industry has also advanced alternatives such as crude by rail, the expansion of existing lines and other conduit proposals. Canadian oil producers have backed other projects such as Kinder Morgan Inc.’s plan to almost triple the capacity of its existing Trans Mountain line to the Pacific. TransCanada's Energy East line will transport as much as 1.1 million barrels a day from Alberta to the Atlantic, if approved and built.
Enbridge Inc. can now move more than 800,000 barrels a day of Canadian crude to the U.S. after expanding its existing cross-border Line 67 system. Exports of Canadian oil by rail averaged about 161,000 barrels a day in 2014 as producers used trains to get volumes to the Gulf Coast, according to data from Canada's National Energy Board. “Other projects have stepped in the breach,” Auers said.
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TransCanada Suspends Request for Permit to Build Keystone Pipeline
Nov 2, 2015 | The New York Times
By Julie Hirschfeld Davis
The company seeking to build the Keystone XL oil pipeline asked the Obama administration on Monday to suspend its yearslong review of the project, potentially bringing an abrupt halt to a politically charged debate that had become part of a broader struggle over President Obama’s environmental policies.
It was not immediately clear whether the administration would grant the request, which was swiftly denounced by environmental activists as a bid to dodge a near-certain rejection of the pipeline. Allowing the delay would push off a decision until after the 2016 presidential election.
The company’s request introduced a new element of uncertainty into the administration’s decision-making process, offering the potential to free Mr. Obama from a politically difficult choice that has hung over much of his presidency. But if anything, it appeared to intensify pressure on him from crucial Democratic constituencies to reject the pipeline or risk being blamed for punting to another president. A delay would keep the issue alive in the presidential campaign.
TransCanada, the Alberta company seeking to build the 1,179-mile pipeline, made its request in a letter to the State Department, which must approve cross-border projects and had been reviewing its application for a presidential permit.
The pipeline would carry 800,000 barrels a day of carbon-heavy petroleum from the Canadian oil sands to the Gulf Coast, and the question of its approval has weighed heavily on Mr. Obama as he has sought to build an ambitious legacy on climate change.
The White House had no comment on the request for a delay, which was made in a letter to John Kerry, the secretary of state, and the State Department said it was looking into it.
“We have just received TransCanada’s letter to Secretary Kerry and are reviewing it,” said Pooja Jhunjhunwala, a State Department spokeswoman. “In the meantime, consideration under the executive order continues.”
Many environmental advocates and liberal activists, who have made opposing the pipeline a cause célèbre in recent years, thought that the president might finally reject it this month, viewing the time as ripe as he prepares for a major United Nations summit meeting on climate change in Paris in December.
The president hopes to help broker an agreement committing every nation to enacting new policies to counter global warming, and rejecting the pipeline would be a powerful signal to world leaders that the United States is serious about the issue.
“TransCanada is losing, and they’re trying to preserve their options to be able to build the pipeline someday if they can get a climate denier in the White House,” Tiernan Sittenfeld, the senior vice president of government affairs at the League of Conservation Voters, said in an interview. She called the request a “desperate and cynical” last-minute plea that was “ridiculous and absurd.”
“Given President Obama’s incredible leadership when it comes to climate change, we remain very confident that he will reject this dirty and dangerous pipeline once and for all,” Ms. Sittenfeld said.
In the letter to Mr. Kerry, TransCanada said it was asking the department to suspend its evaluation of the pipeline proposal until after the State of Nebraska had completed its own review of the project, which could take seven to 12 months. Opposition in Nebraska to a planned route through the state has delayed the process.“In order to allow time for certainty regarding the Nebraska route, TransCanada requests that the State Department pause in its review of the presidential permit application for KeystoneXL,” said the letter to Mr. Kerry, which was signed by Kristine Delkus, the company’s general counsel. “This will allow a decision on the permit to be made later based on certainty with respect to the route of the pipeline.”
Before TransCanada announced its request, Josh Earnest, the White House spokesman, withheld any judgment on when a decision might come on the pipeline.
“The president will make a decision before the end of his administration on the Keystone pipeline, but when exactly that will be, I don’t know at this point,” Mr. Earnest told reporters traveling with Mr. Obama.
Asked if it could happen this year, he said: “It’s possible. It’s also possible it could happen next year.”
TransCanada said there was precedent for obtaining a delay, given that the State Department put its evaluation on hold last year when the pipeline faced a legal challenge in Nebraska.
“I note that when the status of the Nebraska pipeline route was challenged last year, the State Department found it appropriate to suspend its review until that dispute was resolved,” Russ Girling, TransCanada’s president and chief executive, said in a statement. “We feel under the current circumstances a similar suspension would be appropriate.”
But opponents said the uncertainty over the route would not ultimately alter the pipeline’s effect. Instead of granting a delay, said Tom Steyer, the billionaire environmental activist, Mr. Obama should “immediately reject” the pipeline.
Anthony Swift, the director of the Canada Project at the Natural Resources Defense Council, said in a statement: “Pause or no pause, we now know more than enough to do the right thing — reject the pipeline because it will worsen climate change. Altering its route through Nebraska isn’t going to change that. Keystone XL isn’t in the national interest, and the president should reject it.”
Republicans and the oil industry have demanded that the president approve the pipeline, arguing that it would create jobs and stimulate economic growth. Many Democrats, particularly those in oil-producing states, have also supported the project.
In February, congressional Democrats joined Republicans in sending Mr. Obama a bill to speed approval of the project, but he vetoed the measure, saying it impinged on the president’s authority to make the final decision.
Environmental activists have sought to block construction of the pipeline because it would be a conduit for petroleum from the Canada oil sands. The process of extracting that oil produces about 17 percent more greenhouse gases than the process of extracting conventional oil.
Still, State Department reviews have concluded that construction of the pipeline would have little impact on whether that type of oil was burned, because it was already being extracted and moving to market via rail and existing pipelines.
At the same time, both sides regard the decision on the pipeline as a major symbolic issue, an indicator of how willing Mr. Obama is to risk angering a bipartisan majority of lawmakers in the pursuit of his environmental agenda.
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Keystone Backer Seeks To Put Review On Hold, Likely Through 2016 Election
Nov 2, 2015 | PoliticoPro
By Elana Schor
TransCanada on Monday asked the Obama administration to pause its review of the Keystone XL pipeline, a shift in strategy that could push the fate of the project past the 2016 elections and prompted gleeful environmentalists to declare victory.
“Clearly TransCanada has lost and they recognize that. It’s one of the great victories for this movement in decades," said Bill McKibben, whose anti-Keystone campaign galvanized a new vanguard of climate change activists under the banner of his group 350.org.
On MSNBC, the liberal talk show host Rachel Maddow declared: "Keystone is dead."
But TransCanada's gambit can also be seen as a bet on the outcome of the next presidential election.
Greens urged President Barack Obama to make it official and refuse the Canadian energy company's request for a hiatus — saying he should instead kill the Alberta-to-Texas project while he has a chance ahead of the United Nations’ climate conference in Paris that starts later this month.
"It’s time for the current umpire, President Obama, to reject this project once and for all, and go to Paris as the first world leader to stop a major project because of its effect on the climate,” McKibben added.
The project, under review by the State Department for more than seven years, has provoked a sharp political divide. Hillary Clinton and her Democratic presidential rivals all oppose the pipeline, while the GOP is uniformly championing it.
As recently as three years ago, the pipeline appeared to be on a glide path toward Obama's endorsement, despite protests that include the arrests of more than 1,100 anti-Keystone activists outside the White House gates. But its political difficulties in both countries have only mounted, including last month's defeat of Canada's most outspoken Keystone supporter, Conservative Prime Minister Stephen Harper.
The plea by the Calgary-based pipeline giant, which recently cut jobs amid swooning crude prices that have walloped Canada's oil patch, promises to further elevate Keystone as a presidential campaign issue. That's because TransCanada's request for a Keystone pause cites an obscure Nebraska regulatory process that won't be complete for another seven months to a year — potentially putting the Canada-to-Texas pipeline's future in the hands of Obama's successor.
Stopping the review of a permit for Keystone to cross the U.S.-Canada border "will allow a decision on the permit to be made later based on certainty with respect to the route of the pipeline," TransCanada CEO Russ Girling wrote to Secretary of State John Kerry on Monday.
The climate change activists who have fought the pipeline for more than four years cried foul at TransCanada's Nebraska turnabout, urging the administration to reject its request for a suspended review.
"This is nothing more than another desperate and cynical attempt by TransCanada to build their dirty pipeline someday if they get a climate denier in the White House in 2017," Tiernan Sittenfeld, senior vice president at the League of Conservation Voters, said in a statement. "President Obama and Secretary Kerry have all the information they need to reject this dangerous pipeline, and we are counting on them to do just that.”
Nebraska has long been the proving ground for the battle over Keystone, despite the Washington lobbying dollars spent by the pipeline's oil industry backers and environmentalist opponents. TransCanada recently shifted its strategy to welcome a review of the pipeline's route by the state's independent Public Service Commission as it faced increasingly slim chance of winning the required permit.
The White House reaffirmed earlier Monday that it has no specific timetable for making a final ruling on Keystone, which faces vetting from Obama himself after State finishes its own review.
"Our expectation at this point" is that a decision will come before the president leaves office in 2017, spokesman Josh Earnest told reporters, "but when exactly that will be, I don’t know at this point."
A State spokesman said the suspension request has been received and is under review. If the department decides to maintain the current course of its Keystone review, it is expected to have nearly completed a "national interest" review that would put the pipeline on Obama's desk for a final ruling — although State is not obligated to say publicly when its internal review has finished.
Keystone's supporters billed TransCanada's move as the only viable option for a company facing the loss of billions of dollars already invested in Keystone after a review that's lasted more than seven years.
"It is clear President Obama was going to deny the permit" for the pipeline, Sen. John Hoeven (R-N.D.), one of Keystone's most vocal Capitol Hill backers, said in a statement.
Nebraska's PSC received TransCanada's application for Keystone review last month. The pipeline company faced legal challenges from anti-Keystone landowners that threatened the viability of its previous approval from the Republican governor.
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Dems, Greens Decry 'Backdoor' Bid To 'Tilt' Litigation
Nov 3, 2015 | E&E Daily News
By Robin Bravender
The nonpartisan Office of the Law Revision Counsel tends to toil in obscurity, but it has been thrust into the spotlight as its work has become central to a political spat surrounding the Obama administration's Clean Power Plan.
The office's small staff works out of the Ford House Office Building in Washington, D.C. The independent shop is charged with poring over and cleaning up existing laws through a process that includes recommending changes like correcting misspellings and clarifying ambiguities. One of its latest projects has been streamlining environmental laws that are on the books, which has brought some unwanted attention.
"We're in an uncomfortable and very unusual place for us," said Ralph Seep, the House's law revision counsel. "Normally we're not in the middle of a political controversy." Seep said his office is "doing what's been asked of us," but "got tied into a political reality here." Typically, the streamlining of laws "is not controversial stuff."
The House Judiciary Committee last week approved H.R. 2834, a bill prepared by the Office of the Law Revision Counsel as part of the office's ongoing effort to compile and revise U.S. laws. House Republicans painted the bill as an innocuous effort to streamline existing law without changing its meaning, while Democrats and green groups are assailing the effort as a hurried backdoor attempt to hamper U.S. EPA's legal defense of a landmark climate change rule. The bill cleared the committee along party lines.
Central to the partisan fight is a legislative glitch created by the House and Senate passing different versions of Section 111(d) in the 1990 Clean Air Act amendments. That section is critical to the Obama administration's Clean Power Plan, which uses Section 111(d) to clamp down on existing power plants' greenhouse gas emissions.
The Senate version prevents EPA from regulating a pollutant that is already covered by another section of the Clean Air Act. The House version, however, bars EPA from using Section 111(d) to regulate a source already covered by Section 112. EPA's critics say that language bars EPA from using Section 111(d) to regulate source categories that are subject to hazardous air pollution regulations.
The language of the revised text that passed the Judiciary Committee, according to EPA and its supporters, omits language that could bolster the agency's legal defense of the Clean Power Plan.
The language in the House bill "fails to include legislative language that is relevant to whether EPA has statutory authority to issue the Clean Power Plan and regulate greenhouse gas emissions from power plants and other stationary sources," EPA General Counsel Avi Garbow wrote in a July letter to Rep. Tom Marino (R-Pa.), who introduced the bill in the Judiciary Committee.
"There has been significant confusion concerning this provision, which was enacted as part of the Clean Air Act Amendments of 1990, as well as litigation over its proper interpretation in the U.S. Court of Appeals for the District of Columbia Circuit. By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion."
Democratic lawmakers accused their Republican colleagues last week of pushing through the legislation in order to hamper EPA's efforts.
"Tellingly, this bill was noticed for markup on the very same day that the EPA issued a final rulemaking regarding the Clean Power Plan," said Judiciary ranking member John Conyers (D-Mich.). "As authority to issue the rulemaking, the EPA explicitly cited Section 111(d) of the Clean Air Act, and industry advocates have already cited this proposed restatement of current law in support of their challenges to the EPA's authority to implement the Clean Power Plan." At worst, he added, consideration of the bill last week represented "an effort to push through a purely political agenda to change substantive environmental law."
Environmental groups Earthjustice, Environment America, the League of Conservation Voters, the Natural Resources Defense Council and the Sierra Club have written a letter urging members of Congress to oppose the House bill, which they called a "backdoor attack."
"Opponents of the Clean Power Plan hope that by deleting this provision from our laws, they will tilt current litigation against the Clean Power Plan their way," they wrote. "Congress should not attempt to change the Clean Air Act in this underhanded way."
Meanwhile, House Republicans are accusing the Obama administration of meddling in the process to ensure that the codified law favors its policies.
Republican leaders of the House Energy and Commerce Committee yesterday demanded documents from EPA, telling the agency's boss, Gina McCarthy, they were concerned that the agency was blocking the process to codify the law and resolve the legislative glitch (Greenwire, Nov. 2).
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Carson Opposes Clean Power Plan, Contrary To Industry Criticism
Nov 3, 2015 | E&E Daily News
By Jennifer Yachnin
Republican presidential primary contender Ben Carson yesterday dismissed criticism from a coal industry group that asserts the GOP front-runner has not been sufficiently outspoken against the Obama administration's rules to reduce greenhouse gas emissions.
A Carson spokesman told E&E Daily last night that the candidate, a retired neurosurgeon, opposes the Clean Power Plan, which aims to cut carbon emissions from the power sector.
"He certainly has spoken out against the rule," Carson spokesman Doug Watts said.
In a statement yesterday, the American Coalition for Clean Coal Electricity criticized Carson for failing to address the Clean Power Plan during a recent visit to Florida. Carson was in the state as part of promotional book tour.
"It seems that Dr. Carson has grossly misjudged what the American people want. Instead of articulating a balanced energy plan that flatly rejects President Obama's illegal carbon emission rule, he is instead offering signed copies of his latest book," said ACCCE spokeswoman Laura Sheehan.
Sheehan asserted that Carson should have praised Florida state Attorney General Pam Bondi (R) for joining a multi-state lawsuit challenging U.S. EPA's regulations.
"Failure to oppose the president on this issue and opting to sell his book leads us to believe that he and the American people have very different priorities," Sheehan said.
Her comments come in the wake of last week's Republican National Committee primary debate in Boulder, Colo., ahead of which the ACCCE had similarly urged Republicans to address the carbon regulations (Greenwire, Oct. 28).
Although Carson has endorsed overhauling EPA -- arguing the agency needs to do more to help develop the nation's energy supplies -- he has yet to announce a formal energy platform (E&E Daily, Sept. 16).
Carson is also a skeptic of climate science, although he has stated that regardless of whether global warming is occurring, "what is relevant is that we have an obligation and a responsibility to protect our environment."
According to recent national polling in the Republican primary, Carson places second behind businessman Donald Trump. A RealClearPolitics average of five recent nationwide polls -- all conducted in October from outlets including The New York Times, The Washington Post and The Wall Street Journal -- showed Trump leading with 27 percent, followed by Carson with 22 percent and Florida Sen. Marco Rubio with 10 percent.
A poll released last night on the first-in-the-nation Iowa caucus showed Trump and Carson essentially tied, with Trump at 22 percent and Carson at 21 percent, followed by Sen. Ted Cruz (R-Texas) at 14 percent and Rubio at 10 percent. The Public Policy Polling survey queried 638 regular Republican primary voters from Friday to Sunday. It had a 3.9-point margin of error.
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Nov 2, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama’s environmental agenda hangs in the balance as federal courts consider whether his administration overstepped its authority in drafting a host of regulations designed to combat pollution and climate change.
The rules under attack range from standards for hydraulic fracturing to carbon dioxide limits for power plants, and fulfill various promises the Obama administration has made.
It’s now up to a select group of judges — many appointed by Republican presidents — to shape Obama’s environmental and climate legacy by deciding if the regulations pass legal muster.
“We are certainly in a moment where in relatively short order, a lot could be unraveled,” said Justin Pidot, an environmental law professor at the University of Denver who served as a litigator in the Justice Department from 2008 to 2011.
Obama has made it clear that the climate and other environmental policies would be a second-term priority for him and part of what he hopes to define his presidency. But the courts could throw a wrench in those plans.
The latest regulation to face court scrutiny is the Environmental Protection Agency’s (EPA) new limits on ground-level ozone pollution.
Numerous states and business interests filed lawsuits challenging it in the days after its Oct. 26 publication in the Federal Register, putting the matter before the Court of Appeals for the District of Columbia Circuit.
The influential D.C. Circuit, which generally has jurisdiction over regulations, and other federal courts are also mulling over the carbon dioxide limits for existing and newly built fossil-fuel-fired power plants, regulations defining which streams and wetlands are subject to the EPA’s authority and Interior Department standards for hydraulic fracturing for oil and natural gas on federal land.
The latter two rules have been blocked by courts while they consider the cases.
The D.C. Circuit is also working through how to enforce the Supreme Court’s decision earlier this year that the EPA did not properly account for the costs of its landmark limits on mercury and other toxic air pollutants from power plants.
The administration’s allies and foes agree that the confluence of litigation is likely a result of officials trying to finish major rules in the waning days of Obama’s presidency.
“I don’t think it is surprising that this is happening,” said Pidot, who generally feels that the major regulations being challenged fit squarely into the authorities Congress has provided the executive branch. “It’s also not surprising that toward the end of an administration, you end up with a lot of rules in litigation.”
William Yeatman, a senior fellow at the conservative Competitive Enterprise Institute, suggested that the timing of the high-stakes court fights also has something to do with political strategy.
“Most presidents who want to make their mark through the regulatory state are going to cram all their big, controversial ones in the second term, when they don’t face any electoral accountability,” said Yeatman, whose group is likely to participate in the litigation against the climate rules. “The timing is a byproduct of that.”
But the outcome of the challenges is a different matter.
To conservatives, the courts represent the best hopes of overturning what they see as illegal regulations, since it is extraordinarily difficult for even a GOP-controlled Congress to overcome Obama’s veto pen.
Hubbel Relat, vice president for state policy at the American Energy Alliance, said the Supreme Court, where many of the cases are likely to end up, has shown recently that it is growing tired of giving Obama wide discretion when it comes to executive authority.
“The court clearly expressed a serious concern with the deference that the EPA, and more broadly the Obama administration, is claiming with their actions,” Relat said. “They’ve been amazingly bold in asserting deference in their decisions to kind of make up laws as it suits them politically.”
Pidot said the outcome is highly dependent on a number of factors, including the rules themselves.
“In the last few years, the Supreme Court has taken up several cases involving EPA rules, and the agency has done OK, but not great,” he said.
The Obama administration, meanwhile, consistently says it is confident in the legality and constitutionality of its regulations.
The main responsibility for defending the rules will fall to the Justice Department’s natural resources division, led by John Cruden, an assistant attorney general.
At a recent conference in Chicago, Cruden, commenting specifically on the carbon rules, said his staff is up to the task.
“We have now a team of lawyers that were designated from early on, were watching all of this,” he said, according to Greenwire. “We were prepared to go right away.”
Pidot said the division, where he used to work, is the best possible team to take on opponents of the regulations.
“The environmental lawyers at the Department of Justice are some of the best lawyers in the country. They know these issues backwards and forwards.” he said. “If anyone can ably defend these rules, I’d put my money on that set of lawyers.”
But Yeatman warned that the current Justice Department leadership might not be the ones responsible for representing the government in these disputes. Since Obama’s term will end in January 2017, the next president might oversee the cases.
“The next administration, if it has different goals than the Obama administration, can affect the resources it puts into such a lawsuit,” he said, calling that dynamic “one of the more underappreciated factors” in the cases. -
New Power Plant Effluent Limits Too Costly, Critics Say
Nov 3, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Standards to regulate toxic discharges from power plants will cost more to implement than the Environmental Protection Agency has estimated and will especially burden small and medium facilities, attorneys and consultants told Bloomberg BNA.
The EPA's annual average industrywide cost estimate of about $480 million to comply with the effluent limitation guidelines and standards for the steam electric power generating industry was dismissed as too low, particularly by the National Rural Electric Cooperative Association, whose members consist of small- to medium-sized power plants. These facilities can ill-afford to install controls to meet all the air and water regulations that the EPA has imposed, Dorothy Kellogg, NRECA senior principal on environmental policy, said.
Kellogg was referring to regulations to limit greenhouse gases, mercury, oxides of nitrogen and sulfur, and design changes in cooling water intake systems and management of coal ash.
“Every direct discharge into the waters of the U.S. has to have a permit,” she said. “The difference is whether the permit is based on effluent limits that consider input from very, very large power plants owned and operated by companies that have a lot of financial resources at their disposal.”
The rule applies largely to coal-fired steam electric power plants of 50 megawatts or more.
“While the EPA says the rule applies to over 1,000 coal-fired power plants, the real effect is on those coal-fired plants that generate the waste streams that this rule has identified for regulation,” said Harold Blinderman, partner with Hartford, Conn.-based Day Pitney LLP.
Blinderman said the final power plant effluent guidelines (RIN 2040-AF14) will require owners and operators of coal-fired power plants to invest significant capital into building and designing pollution controls and associated infrastructure for each plant to comply with the rule.
In its proposed rule, the agency estimated that about 500 coal-fired power plants would be affected by the rulemaking, a figure that more than doubled in the final version.
Waste Generated From Scrubbers
When the Clean Air Act was reauthorized in 1990 and required power plants to install technologies for scrubbing out harmful pollutants, these facilities have had to grapple with how to manage the resulting waste, whether it's coal ash or wastewater. The effluent limitation guidelines, or ELGs, attempt to reduce the amount of pollutants that have been transferred from air pollution technologies to the wastewater. Discharges of toxic metals, nutrients and other pollutants are expected to be cut by 1.4 billion pounds, the EPA said.
Jim Wedeking, staff attorney with the Washington D.C.-office of Sidley Austin LLP, said the power industry in general is displeased with the rule, because it has “underpriced” the cost of compliance.
Both Wedeking and Blinderman expect the agency will be sued over the rule once it is published mainly on grounds of underestimating compliance costs.
“I think the argument will be made that the EPA hasn't fully considered the cost of compliance with technologies it has included in the rule, and also hasn't fully considered the impacts of complying with other rules,” Blinderman said.
High Capital Costs
The capital cost alone of installing biological treatment systems—used to remove nitrates and selenium from scrubber, or flue gas desulfurization, wastewater—at a single plant that may contain a variety of electricity generating units can range from $10 million to $60 million, according to Kansas City-based Burns & McDonnell, an engineering consulting firm.
However, the EPA claims in the rule that affordable technologies are available and already in place at some plants, which are capable of reducing or eliminating steam electric power plant discharges.
The final effluent guidelines require power plants to use a suite of controls to manage discharges of arsenic, selenium, nitrates, mercury, zinc and other pollutants from power plants. Among those controls are chemical and biological technologies to treat wastewater generated by wet scrubbers, units to curb sulfur oxide emissions from burning coal. The rule also requires that power plants owners and operators use dry handling of fly ash and bottom ash in order to eliminate the potential for pollution from the wastewater containing either form of ash (190 DEN A-15, 10/1/15).
The rule has identified for regulation wastewater associated with flue gas desulfurization, fly ash, bottom ash, flue gas mercury control, combustion residual leachate from landfills and surface impoundments, nonchemical metal cleaning wastes and gasification of fuels such as coal and petroleum coke.
Most of these wastestreams are associated with coal-fired power plants, according to Diane Martini, senior water and wastewater consultant with the Chicago office of Burns & McDonnell, who agreed with Blinderman that the largest impact of the rule would be on coal-fired power plants.
The EPA has affirmed that natural gas and nuclear power plants typically discharge cooling water as well as nonchemical metal cleaning wastes, whereas the majority of the waste streams associated with the rulemaking are generated by power plants using coal and petroleum-coke (162 DEN A-13, 8/21/13).
Site-Specific Limits Needed
Kellogg of NRECA said the association was disappointed that the rule relies on numeric limits based on the workings of a large, model power plant rather than allowing permit writers to use their best professional judgment and work with utilities and state regulators to hammer out the treatment technology best suited to a particular facility.
However, the agency concluded state and local permitting authorities would face an “unnecessary burden” to conduct a complex technical analysis that they may not have the resources or expertise to complete.
Of the 1,080 power plants, about 12 percent steam electric power plants and 28 percent of coal-fired or petroleum coke-fired power plants will incur some compliance costs. The EPA has estimated average compliance costs that factor in operations and maintenance costs as well as capital costs to install the controls at $480 million.
Specifically, the EPA estimated that variable production costs at steam electric power plants increase by approximately 0.3 percent, or 10 cents per megawatt-hour at the national level. The resulting net change in total capacity for steam electric power plants also is very small, according to the EPA. For the group of steam electric power plants, total capacity will decrease by 843 megawatts or approximately 0.2 percent of the 359,982 MW baseline capacity, corresponding to a net closure of two units.
The two main revisions to the final effluent guidelines from the proposal lie in requiring the power plants to use dry handling for bottom ash and using chemical precipitation processes followed by biological treatment to treat scrubber wastewater.
The EPA's surveys show that nearly half of the power plants use wet scrubber systems that discharge wastewater containing arsenic, mercury, selenium and nitrates for which the rule has set effluent limits. Moreover, the EPA said currently only six power plants nationwide use biological treatment to treat scrubber wastewater to remove nitrates and selenium, while about 39 use some form of chemical precipitation to treat this wastewater, as warranted by the revised effluent guidelines.
Wastestream Dependent on Generation
According to Sara Burgin, partner in the Austin office of Bracewell & Giuiliani LLP, the size of a facility required to treat wastewater generated from scrubber operations will depend on the size and the generating capacity of the power plan.
Martini of Burns & McDonnell provided ballpark costs of converting wet bottom ash for dry handling, and installing physical and chemical precipitation methods, followed by biological treatment systems for managing wastewater. She said the estimates, though broad, range from $30 million to $300 million.
“Each plant is unique, and the range of potential costs is very broad,” Martini said. “Some may have already converted to dry bottom ash, and may already have installed FGD wastewater treatment, so would only need to add biological treatment or another technology to polish the wastewater.”
The following are ballpark costs that Burns & McDonnell estimates each power plant could face:
• bottom ash conversion: $10 million to $50 million;
• scrubber wastewater (physical and chemical precipitation): $10 million to $60 million;
• scrubber wastewater (Biological): $10 million to $60 million.
Martini said the costs of converting bottom ash for dry handling do not include the costs of closing ash ponds. Those costs could run an additional tens of millions of dollars.
Aside from installation costs, there is the question of land that is needed to build these treatment facilities. Burgin said power plants will have to build wastewater treatment plants spanning an acre or two to treat scrubber wastewaters.
Biological Treatment ‘Unnecessary.'
The power industry is concerned, particularly Kellogg of NRECA, that the biological treatment is “unnecessary” because physical and chemical treatment take care of 90 percent of the pollutants in the wastewater. The vast majority of NRECA members generate less than 500 MW in power. For them, this cost is more than its membership can bear.
“It seems to me that an awful lot of money is being paid for every pound of treatment by people with a lot more economic challenges than you and I have, and these costs can't be spread across investors, but have been borne by our members,” Kellogg said.
Kellogg also is concerned that the EPA required biological treatment after modeling results from a large Duke Energy power plant that was providing baseload power. Biological treatment involves feeding bugs in large vats with wastewater that has been stripped off pollutants and grit by physical separation and chemical precipitation. “These bugs are kind of picky. They require the same feed coming at them at the same rate,” Kellogg said.
As more and more coal-fired power plants are used as peaking plants, or plants that only generate power when needed at peak times as opposed to running constantly, Kellogg said, the population of bugs dies out and has to be replenished.
Martini agreed that the variability of wastewater discharged to biological treatment systems is an operational concern, because there could be malfunctions and outages or changes in coal blends as a result of the greenhouse gas or other air rules. It could also be a compliance risk, a result of toxic discharges that go untreated.
The EPA has offered voluntary incentives to industry to delay compliance until the end of 2023 in exchange for using thermal evaporation of scrubber wastewater that would do away with liquid discharge, but the price tag on it is expensive and could range from $10 million to $100 million, according to Martini.
Timing of the Rule
The power sector has between 2018 and 2023 to comply with the effluent limits that will be incorporated into their National Pollutant Discharge Elimination System permits. The coal combustion residual rule takes effect Oct. 15, but the deadlines for compliance follow closure of ash ponds and landfills that is bound to happen when power plants switch to dry handling of both fly and bottom ash.
None of those contacted by Bloomberg BNA disputed that the EPA tried to coordinate compliance of the effluent guidelines with the coal combustion residual rule.
Given how the compliance dates of air and water rules affecting power plants are overlapping and converging, Martini said, “only time will tell.”
“Running a coal-fired power plant has become more complicated than it used to be because the operator has to consider additional factors beyond Btus and cost. They have to consider compliance with air and water rules too,” Martini said.
There are a limited number of vendors that can provide equipment for ash handling and wastewater treatment, and those systems don't get built overnight, she added.
“It will be interesting to see how that plays whether everyone can get everything built within the time frame allowed,” she said.
Despite the EPA's claims that the impact will be negligible, Martini said utility owners will make decisions on an individual plant basis, whether it is cost-effective to convert to natural gas or to close them or to comply with all the rules.
From the cooperatives perspective, Kellogg said compliance with all environmental rules coming into effect will be a challenge. “They are all hitting at once,” she said.
Burgin, of Bracewell & Giuliani, said the power industry is currently grappling with the air regulations.
“They aren't even focused on the costs of the revised effluent guidelines, but this rule is one more burden on an already overburdened group,” Burgin said.
According to Blinderman, absent a stay from a court, “the industry will have to deal with the rule.”
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These 13 U.S. States Saw Carbon Pollution Go Up Over a Decade
Nov 2, 2015 | National Geographic
By Christina Nunez
Some U.S. states, such as Maine, are already well on their way to meeting new federal targets aimed at curbing emissions of carbon dioxide. But 13 states have been moving in the opposite direction.
While levels of the heat-trapping greenhouse gas went down in 37 states and the District of Columbia between 2000 and 2013, they actually increased in 13 states, according to figures recently released by the Energy Information Administration.
Nebraska saw the biggest rise: Carbon emissions jumped 28 percent, mostly because of higher coal use for electricity and industry. Maine, which gets three fifths of its power from renewable sources such as hydropower and biomass, saw the biggest drop: 27 percent. State energy-related carbon dioxide emissions 2000-2013, in metric tons Large states such as Texas and California dominate carbon dioxide emissions in the U.S. Of the larger U.S. states, New York has had one of the largest reductions in emissions since 2000, dropping over 24 percent. Texas California New York
Not surprisingly, all but one of those 13 states have joined lawsuits to stop the Obama administration's Clean Power Plan, which sets state emission targets to cut carbon pollution from power plants by 32 percent from 2005 levels. The rules, a key piece of the U.S. commitment to address climate change ahead of UN-led talks later this year in Paris, encourage greater use of natural gas and renewable energy, drawing opposition from states that rely heavily on coal for electricity generation.
The trend lines in EIA's data, above, show that the carbon reductions aren't assured going forward. Economic growth has pushed emissions back up slightly in recent years, an uptick visible across the board. (See a chart that explores the uptick through 2014.) Per capita energy-related carbon dioxide emissions by state 2013, in metric tons Wyoming had the highest per capita emissions in 2013, due to its cold winters and small, rural population. Cities are more energy efficient, with mass transit and multi-family homes, resulting in New York with the lowest emissions of all 50 states.
The ranking of biggest emitters shifts when the per-capita numbers come into play. Wyoming has the lowest population density in the lower 48, according to EIA. That and the fuel needed to get through its cold winters give it the highest emissions per person.
By contrast, New York—which has so many people centered in New York City with mass transit and an economy based on non-carbon-intensive activity such as financial markets—has the lowest per-capita figure in the country, next to Washington, D.C.
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EPA Cracking Down On Water Pollution
Nov 2, 2015 | The Hill - E2 Wire
By Tim Devaney
The Environmental Protection Agency (EPA) is formalizing new water pollution rules.
The water pollution rules announced in September will be published in Tuesday’s edition of the Federal Register, officially kicking off the 60-day period before they go into effect.
Power plants are the largest contributors to surface water pollution, according to the EPA. The new rules will limit the amount of toxic chemicals released by power plants that are known to cause cancer and other health issues.
This is part of a larger climate push by the Obama administration. The EPA recently issued a couple of rules that target air pollution from coal plants and ozone emissions.
The water pollution rules will reduce the discharge of toxic pollutants by 1.4 billion pounds annually, according to the EPA.
Currently, power plants discharge 79,200 pounds of arsenic, 65,000 pounds of lead and 3,000 pounds of mercury each year, according to the EPA. About 23,600 miles of rivers and streams are effected by the discharges, it says.
"The pollutants discharged by this industry can cause severe health and environmental problems in the form of cancer and non-cancer risks in humans, lowered IQ among children, and deformities and reproductive harm in fish and wildlife," the agency writes.
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Advocates Argue CWA Gives EPA Legal Duty To Review Downstream Impacts
Nov 2, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists in a recent amicus curiae brief supporting EPA’s decision to veto disposal sites underlying a final Clean Water Act (CWA) permit for a coal mine are arguing that the agency’s section 404(c) authority under the water law conveys a “legal duty” to consider downstream impacts of discharges when making such decisions.
Refuting the coal company’s argument that EPA cannot consider downstream impacts from discharges to disposal sites under section 404(c), Earthjustice and Appalachian Mountain Advocates argue in their Oct. 23 brief that “EPA not only has the authority to address the downstream impacts of a fill discharge on aquatic ecosystems and wildlife, the agency has a legal duty to consider such harm under [404](c) and its own regulations."
The coal company in Mingo Logan Coal Company, v. EPA is asking the U.S. Court of Appeals for the District of Columbia Circuit to overturn a September 2014 decision by U.S. District Court for the District of Columbia Judge Amy Berman Jackson. In the lower court case, Berman Jackson found the agency has the authority under the CWA to “veto” mining disposal sites already authorized in Corps-issued section 404 dredge-and-fill permits that are vital to mining operations.
The judge also rejected the mining industry’s argument that the agency can only veto such permits in situations where it finds “substantial new information” to support the decision, which Mingo says was lacking in EPA’s veto. Berman Jackson ruled on the merits of the case following a remand from the D.C. Circuit upholding EPA’s veto decision on the grounds that the CWA allows the agency to exercise its authority under section 404(c) “whenever” it finds that unacceptable impacts would occur.
While the Corps issues CWA section 404 permits for dredge-and-fill activity, including mining, EPA has the ability under section 404(c) to veto a permit’s specified discharge sites when it determines that the discharge “will have an unacceptable adverse effect on water supply, aquatic life, wildlife or recreational areas.”
The veto does not fully invalidate a permit, but the action usually has the effect of stopping development since permits provide authority to dispose of dredge-and-fill material only in specified disposal sites. For that reason, industry attorneys have claimed, including in the current suit, that EPA should have to consider similar criteria to what the Corps considers in order to revoke a final permit.
In the D.C. Circuit appeal, the company argued in a June 12 brief that the agency failed to justify its decision, based in part on a 2009 Supreme Court ruling, FCC v. Fox Television Stations, Inc. There, the high court said that an “about face” on agency policy demands a “more detailed justification,” especially when the prior position “engendered serious reliance interests.”
In response, the Justice Department (DOJ) in an Oct. 9 brief says the company is misreading the CWA and the FCC decision to claim that the agency overreached its authority when it decided that the permit would lead to “unacceptable” impacts on wildlife near the firm’s West Virginia mine site.
Downstream Impacts
DOJ and the environmental groups are refuting Mingo’s argument that the agency is prohibited from considering downstream impacts when it makes a veto decision. The company argued that when West Virginia regulators approved a discharge permit for the mine, separate from the CWA section 404 permit that EPA would later veto, they effectively decided that any consequences for wildlife would be acceptable under state law.
In its brief, DOJ counters that “As long as there is a causal link between the dredge-and-fill discharge and the unacceptable adverse effect (and Mingo Logan no longer disputes the existence of that link in this case), the EPA can act under Section 404(c) to prevent the adverse effect.”
But the environmental groups in their amicus brief take that argument further, saying, “Not only does the Act not preclude EPA from addressing downstream harm, as EPA explains in its brief, it in fact requires EPA, and the Corps, to address downstream harm” under section 404(c). The statutory language, the brief argues, does not place any limits on the location of the unacceptable harms that the agency is authorized under the veto provision to prevent.
The brief says that the statute also does not restrict EPA’s ability to prevent unacceptable harm from a “fill” because of issuance of a discharge permit by a delegated state, saying that states’ lack of authority “to cramp EPA’s veto power is further demonstrated by the statute’s requirement that EPA consult only with the Corps, not a state, before issuing a final determination.” Moreover, if the court finds there is some ambiguity in the statute, strong deference to EPA is warranted to the downstream harm as a necessary component of the evaluation of a fill discharge, citing the 2009 Supreme Court decision in Coeur Alaska, Inc. v. Se. Alaska Conservation Council. EPA and the Corps’ implementing regulations for the 404 coordination process, recognize this provision requires consideration of downstream harm, including “impact on an aquatic or wetland ecosystem,” the brief says.
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U.S. Chamber Warns Senators On WOTUS
Nov 3, 2015 | E&E Daily News
By Geof Koss
With the Senate poised to take a procedural vote today on barring the Obama administration's Waters of the U.S. rule, the U.S. Chamber of Commerce is telling senators it's keeping tabs on the tally.
The chamber may "key vote" any roll calls related to the WOTUS rule, including cloture on the motion to proceed to legislation (S. 1140) sponsored by Sen. John Barrasso (R-Wyo.), which would require the administration to rewrite the rule under new criteria for which streams and wetlands should qualify for Clean Water Act protection (E&E Daily, Nov. 2).
"The states and the regulated community deserve a proper and legal rulemaking process, including necessary and appropriate consultation and impact analyses, and they deserve a final rule that is clear and consistent with the Congressional intent of the Clean Water Act," the chamber wrote to senators yesterday, noting a recent federal appeals court injunction that barred the rule from taking effect nationwide.
Fighting the WOTUS rule is a top priority of EPA critics, who aim to keep the legislative pushback in play as House and Senate negotiators work to craft an omnibus appropriations bill to replace the current continuing resolution when it expires Dec. 11. Democrats and the White House are vowing to block the inclusion of "ideological riders," although Republicans appear undeterred by the threat (E&E Daily, Oct. 28).
Should Barrasso's WOTUS bill fall short, the Senate could turn to the Congressional Review Act resolution (S.J. Res. 22) offered earlier this year by Sen. Joni Ernst (R-Iowa). While such resolutions can pass by a simple majority in both chambers, they're still subject to presidential veto and are rarely successful.
In its letter, the chamber urged support for Ernst's resolution. "While the Chamber believes it is a better approach for EPA to start over and redo the rule in the manner specified by S. 1140, S.J. Res. 22 is a backstop to prevent implementation of this deeply flawed rule," it wrote.
Barrasso yesterday released a list of hundreds of state, local and business groups that have endorsed his bill.
However, senators are also facing pressure from environmentalists on WOTUS. The League of Conservation Voters delivered its own letter yesterday to the upper chamber criticizing both measures as "dangerous bills that undermine the Clean Water Rule and weaken the Clean Water Act, one of our nation's bedrock environmental laws."
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Legal Basis for EPA Climate Rules at Issue in Air Act Tweak
Nov 3, 2015 | BNA Daily Environment Report
By Anthony Adragna
Three senior Republicans on the House Energy and Commerce Committee accused the Environmental Protection Agency Nov. 2 of not cooperating on a technical fix to the Clean Air Act because the agency believed doing so would undermine its legal position on the Clean Power Plan.
At issue are a set of conflicting amendments passed as Section 111(d) in the 1990 Clean Air Act amendments. The Senate amendment bars the EPA from regulating pollutants under Section 111(d) that already are regulated as toxic pollutants under Section 112, while the House language says the EPA cannot regulate industrial sources under Section 111(d) if they are already subject to hazardous air pollutant standards under Section 112 (59 DEN B-1, 3/27/15).
Both amendments are included in the statutes at large, but only the House amendment is reflected in current U.S. Code.
Now, a nonpartisan congressional authority—the Office of Law Revision Counsel—is attempting to resolve the discrepancy by updating the U.S. Code. But the EPA is not cooperating with those efforts, according to the Nov. 2 letter to Administrator Gina McCarthy because the agency thinks the revised statute would go with the House amendment and potentially endanger the legal footing of the Clean Power Plan.
“There is reason to believe that agency officials may have worked to inhibit the congressional Office of Law Revision Counsel as it sought to fulfill its responsibility to codify the language of the Clean Air Act and other statutory provisions,” the letter from Reps. Fred Upton (R-Mich.), Tim Murphy (R-Pa.) and Rep. Ed Whitfield (R-Ky.) said.
Upton, chairman of the full Energy and Commerce Committee, and Murphy and Whitfield, chairmen of two subcommittees, requested documents and communications related to the work to the “restatement” of the Clean Air Act.
In its August final Clean Power Plan (RIN 2060-AR33), the EPA argued the conflicting amendments could be read harmoniously in support of the regulation, which sets a unique carbon dioxide emissions rate for each state. More than half of all states and dozens of other entities already challenged the final rule in federal appeals court (206 DEN A-14, 10/26/15).
Typically Non-Controversial Process
Codifying the provisions of statutes is a typically routine process involving formatting changes, new subtitles and occurs “without an intent to change the meaning of the law.”
But the EPA expressed concerns in July that current legislation (H.R. 2834) would “further complicate the already complex task of interpreting the Clean Air Act in regulatory proceedings and court cases.”
“The restatement fails to include legislative language that is relevant to whether EPA has statutory authority to use the Clean Power Plan,” the July 27 letter from Avi Garbow, general counsel at the EPA, wrote to a House Judiciary Committee subpanel. “By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion.”
When reached for comment on the Republicans' letter Nov. 2, the EPA responded with a statement that reiterated parts of the July letter.
Rep. Tom Marino's (R-Pa.) bill, which intends to codify environmental laws under a single new section of the U.S. Code, passed the House Judiciary Committee on a 20-13 party-line vote Oct. 27.
Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, said in an Oct. 27 letter that the legislation would make substantive revisions to the Clean Air Act by writing out the EPA's authority to regulate carbon dioxide emissions from power plants.
The letter slammed Republicans for attempting to re-write the Clean Air Act “disguised as noncontroversial, technical changes to established law in a matter that could mislead members of both parties” (208 DEN A-9, 10/28/15).
EPA Declined to Meet
According to a September letter from Office of Law Revision Counsel, the EPA had declined to discuss relevant parts of the codification since the effort began in 2009. The congressional authority called the agency's concerns about the legislation “unfounded.”
“If EPA had chosen to cooperate with the codification project, EPA could have given the draft a complete review by examining about 1/3 of a page per day, hardly an ‘enormous undertaking,’ as EPA would have it,” Ralph Seep of the Office of Law Revision Counsel said. “We hope that EPA's reluctance notwithstanding, the Judiciary Committee will proceed with the bill, which has already been 8 years in the making, as expeditiously as possible.”
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