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ACC AM Nov 11
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(ACC Mentioned) India Oct vehicle output rises 14.4%; sales up 22.4%
Nov 10, 2015 | ICIS News
India produced 2.28m vehicles in October, up by 14.4% from the same period a year earlier, industry data showed on Tuesday. Production of passenger vehicles rose by 22.4% year on year to 296,359 units, according to data from the Society of Indian Automobile Manufacturers (SIAM). -
(ACC Mentioned) Chemical Safety Bill Strains The Senate
Nov 10, 2015 | PoliticoPro
By Darren Goode
The senators were flying to New York to pay their respects at Frank Lautenberg's funeral. But Barbara Boxer was doing something else as well: urging her fellow Senate Democrats to reject the late New Jersey lawmaker’s signature chemical safety bill. During that 2013 flight, aboard a military C-40 jet from Andrews... -
Chances Dimming for TSCA Vote, Cornyn Says
Nov 11, 2015 | BNA Daily Environment Report
By Ari Natter
The chances of Senate action on legislation to overhaul the nation's primary chemical law are dimming because of a protracted fight over using the bill as a vehicle to reauthorize an unrelated environmental conservation program, Sen. John Cornyn (R-Texas) told reporters Nov. 10. -
Nanomaterials Said to Illustrate Need for TSCA Reform
Nov 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
For 10 years, the Environmental Protection Agency's efforts to get information on nanoengineered chemicals already in commerce have largely been thwarted, a senior environmental organization scientist tells Bloomberg BNA. Either of the two bills on Capitol Hill modernizing the Toxic Substances Control Act would change that, with the Senate... -
CSB Must Better Protect Data, EPA Inspector General Says
Nov 11, 2015 | BNA Daily Environment Report
By Stephen Lee
Critical investigative data gathered by the Chemical Safety and Hazard Investigation Board could be at risk of theft, loss or damage because the agency isn't doing a good enough job of protecting its computer systems, a federal oversight office said Nov. 5. The report is just the most recent in a string of tough assessments... -
Senators Propose PHMSA Reauthorization With Inspection Reporting Deadline
Nov 10, 2015 | PoliticoPro - Whiteboard
By Elana Schor
A bipartisan quartet of senators today released a proposal to reauthorize the nation's pipeline safety regulatory agency that requires it to report back to companies within 30 days of completing an inspection. The new bill from Sens. Deb Fischer, Cory Booker, Steve Daines, and Gary Peters would also require the Pipeline... -
Pennsylvania Seeks Input on Pipeline Report
Nov 11, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
A 48-member task force in Pennsylvania charged with formulating guidelines for future pipeline development across the shale-rich state issued its first draft report Nov. 10 and is seeking public feedback through Dec. 14. The Pennsylvania Department of Environmental Protection (DEP) released the draft report from the governor's... -
Senators Release Pipeline Reauthorization Bill
Nov 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Four senators introduced Nov. 10 a 25-page bill that would reauthorize through 2019 pipeline safety programs.The Securing America's Future Energy: Protecting Infrastructure of Pipelines and Enhancing Safety (SAFE PIPES) Act (bill number unavailable) would provide the nation's pipeline safety regulator direct hiring authority. -
AGA to Congress: Consider Unfinished Pipe Business
Nov 11, 2015 | BNA Daily Environment Report
The American Gas Association is urging Congress to consider how many rules and initiatives the nation's pipeline regulator still hasn't completed, as the legislature works to craft a pipeline reauthorization bill. Citing an American Gas Foundation-funded report released Nov. 10, the association said pipeline safety rules and voluntary efforts... -
Feds Reject Call For Tougher Fire-Resistance For Crude Oil Tank Cars
Nov 10, 2015 | The Chicago Tribune
By Richard Wronski
Federal officials have rejected a call to toughen the fire-resistance of railroad tank cars that carry highly flammable crude oil, hundreds of which pass through the Chicago area each day. The U.S. Department of Transportation is standing by its decision issued last spring that new and retrofitted tank cars be required to withstand being... -
(ACC Mentioned) EPA Regional Consistency Rule Questioned by Industry
Nov 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An Environmental Protection Agency proposal to update its regional consistency regulations would be illegal under the Clean Air Act and conflict with more than 40 years of agency policy, a variety of industry associations said. Industry groups representing the petroleum, chemical and power sectors argued in comments that the EPA's... -
Sanders Says He Opposes New Bakken Oil Pipeline
Nov 10, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Democratic presidential hopeful Sen. Bernie Sanders today came out against a pipeline that would carry as many as 570,000 barrels a day of light U.S. shale oil through Iowa, raising pressure on frontrunner Hillary Clinton to weigh in. Sanders' opposition to the $3.8 billion Dakota Access pipeline comes after he touted his early opposition... -
FERC's Clark Doesn't Expect 'Keystone-Like Debacle' On Gas Pipelines
Nov 10, 2015 | E&E News PM
By Edward Klump
It's unlikely the politics that engulfed a federal review of the Keystone XL oil pipeline project will flow into a process for interstate gas pipeline permitting, Tony Clark of the Federal Energy Regulatory Commission said today. Clark, speaking to reporters at a conference here, pointed to the Natural Gas Act and an independent... -
Natural Gas Groups Criticize Residential Furnace Rule
Nov 11, 2015 | BNA Daily Environment Report
By Rebecca Kern
The natural gas industry criticized the Energy Department for not providing additional analysis of the cost impacts of the proposed energy efficiency standards for non-weatherized gas residential furnaces. “Without better knowledge of the particular inputs and assumptions used by the department in its analysis, [American Gas Association] and... -
State Field Likely Set for Clean Power Plan Legal Fray
Nov 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
Just five states are not currently involved with litigation on the Environmental Protection Agency's Clean Power Plan and at least two of those—Pennsylvania and Nevada—don't plan to enter the legal fray. Both Pennsylvania and Nevada have concluded that developing state implementation plans for implementing ... -
Sierra Club Pushes 4 GOP Moderates On Clean Power Plan
Nov 10, 2015 | E&E News PM
By Amanda Reilly
The Sierra Club is pressuring the four members of a Senate Republican working group on the environment to oppose congressional attempts to overturn the Clean Power Plan. In a statement today, Sierra Club Executive Director Michael Brune said voting against Congressional Review Act resolutions that would scuttle the Obama administration's ... -
Judges Won't Consider Key Precedent On EPA Standards
Nov 11, 2015 | E&E News PM
By Jeremy P. Jacobs
Federal judges today rejected a bid from environmental groups to reconsider an important legal precedent for how U.S. EPA calculates air standards. The Sierra Club and other groups asked the U.S. Court of Appeals for the District of Columbia Circuit to reconsider its July ruling upholding EPA's standards for chrome-plating facilities... -
Kerry Wants To Include Climate Change In Nation Risk Assessments
Nov 10, 2015 | E&E News PM
By Ariel Wittenberg
The State Department is forming a task force to determine how best to include climate change issues in country risk assessments, Secretary John Kerry said today. Kerry announced the task force during a speech at Old Dominion University in Norfolk, Va., about the intersection between climate change and national security. -
EPA Asks North Dakota Court To Stay CWA Suit Pending 6th Circuit Ruling
Nov 10, 2015 | InsideEPA
By Bridget DiCosmo
EPA is asking the U.S. District Court for the District of North Dakota to stay a lawsuit filed by 11 states over the agency's Clean Water Act (CWA) jurisdiction rule until the U.S. Court of Appeals for the 6th Circuit rules on whether it has power to hear suits over the rule, arguing that a stay is vital to avoid creating duplicative litigation. -
Groups Up Pressure on 11 Senators Over Waters Rule Vote
Nov 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
Eleven Democratic and Independent senators who did not support legislation forcing the Obama administration to rewrite a Clean Water Act jurisdictional rulemaking should reconsider their votes, more than 50 agricultural, business and manufacturing groups said Nov. 10.
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(ACC Mentioned) India Oct vehicle output rises 14.4%; sales up 22.4%
Nov 10, 2015 | ICIS News
India produced 2.28m vehicles in October, up by 14.4% from the same period a year earlier, industry data showed on Tuesday.
Production of passenger vehicles rose by 22.4% year on year to 296,359 units, according to data from the Society of Indian Automobile Manufacturers (SIAM).
Two-wheelers accounted for 80.3%, or 1.83m units, of the total vehicle output for the month, the data showed.
Domestic sales of all vehicles rose by 13.9% year on year to 2.04m units in October, with exports down by 5.56% at 289,309 units, SIAM said.
Vehicle production is a key indicator of the strength of the chemical industry, especially for polymers such as acrylonitrile-butadiene styrene (ABS), polycarbonate (PC) and nylon. Butyl acetate is used for paints and coatings in the automotive sector, while styrene butadiene rubber (SBR) is used in tyre production.
On average, each automobile contains $3,297 worth of chemicals, based on estimates from the American Chemistry Council (ACC).The automotive industry is a major global consumer of petrochemicals which contribute more than a third of the raw material costs of an average vehicle. ICIS tracks the movement of petrochemical raw material costs in auto production both globally and regionally with the weighted ICIS Basket of Automotive Petrochemicals (IBAP).
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(ACC Mentioned) Chemical Safety Bill Strains The Senate
Nov 10, 2015 | PoliticoPro
By Darren Goode
The senators were flying to New York to pay their respects at Frank Lautenberg's funeral. But Barbara Boxer was doing something else as well: urging her fellow Senate Democrats to reject the late New Jersey lawmaker’s signature chemical safety bill.
During that 2013 flight, aboard a military C-40 jet from Andrews Air Force Base, Boxer later told POLITICO, she insisted to anyone who asked that she had only her late friend and colleague’s interests at heart. Lautenberg’s legacy would suffer, she said, from his decision to work with Republicans and the chemical industry on the stalled legislation, which had drawn the opposition of hundreds of environmental and public health organizations. She especially feared that the bill would allow federal rules to supersede the tough chemical regulations in place in her home state of California.
But Boxer's opposition raised eyebrows among her colleagues — after all, she and Lautenberg had been longtime allies on environmental causes. And it left Lautenberg’s widow, Bonnie, aghast.
“It was horrifying to me because you have to understand the history: Frank Lautenberg and Barbara Boxer were very close friends,” Bonnie Lautenberg told POLITICO. “So, I was horrified and hurt, so hurt, when I heard that Barbara was bad-mouthing the bill on the way to his funeral, oh my God.”
Boxer’s stubbornness had an impact on the legislation’s path through Congress as well. A new guard of Democrats handled most of the delicate negotiations that have kept the bill on track, although they agree she was never explicitly cut off.
The upshot of all this wrangling is that Congress is closer than ever to updating the 1976 Toxic Substances Control Act, a landmark law that environmentalists, public health advocates and chemical companies all agree has failed to effectively regulate the tens of thousands of chemicals in use today. Lautenberg introduced his first TSCA overhaul a decade ago, aiming to require additional disclosure from chemical companies and strengthen EPA testing requirements. Now the bill bears Lautenberg’s name.
But if it passes, it will be despite opposition from Boxer, one of her party’s most influential voices on green issues, who is retiring from the Senate at the end of next year.
Boxer, the top Democrat on the Environment and Public Works Committee, insists she wasn’t setting out to lobby against the bill during the trip to Lautenberg's funeral, but she acknowledged criticizing the legislation on the flight.
“I wasn’t lobbying any bill. People were asking me about the bill,” she said of the plane ride. “I said, ‘Everything I know about it says it would not be good for Frank’s legacy.’”
But Lautenberg seized on his cooperation with Republicans as one last chance to secure a victory on the legislation. After years of watching bills he had introduced with liberals like Boxer go nowhere, Lautenberg teamed up with Sen. David Vitter on the TSCA overhaul and unveiled a deal with the Louisiana Republican in May 2013, just two weeks before Lautenberg died of complications stemming from viral pneumonia. Lautenberg and Boxer had introduced their latest version of their collaboration a few weeks before Lautenberg teamed up with Vitter. In effect, the Lautenberg-Vitter bill replaced the Lautenberg-Boxer version.
The legislation was so central to the New Jersey Democrat's legacy that Vice President Joe Biden cited it as he delivered the eulogy at Lautenberg's funeral. He pointed to the "bipartisan breakthrough" on TSCA as an example of the senator's dedication to his job.
“Even in his final days, it wasn’t his health he was concerned about, it was the health of the people of New Jersey, the health of the kids in this country,” Biden told the crowd of mourners at the June 5 service, who included Boxer and Vitter.
Following Lautenberg's death, New Mexico Sen. Tom Udall took over as the lead Democratic co-sponsor of the bill, which has been renamed the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The bill counts among its longtime supporters the American Chemistry Council, an industry trade association, and the Environmental Defense Fund, a moderate green group.
Boxer, meanwhile, has touted the backing of many environmental and public health organizations and their affiliates behind her drive to keep TSCA reform more like the earlier iterations of Lautenberg’s bill. Several state attorneys general, including those from California and New York, are also fierce opponents of preempting state controls of toxic chemicals. Boxer had supported those earlier versions of the legislation, which did not preempt state toxics laws. California's tough rules have pushed several hazardous and cancer-causing chemicals out of consumer goods like nail care products, tableware, wine bottles and paint stripper — even though federal law permits most of them.
Besides ending her friendship with Bonnie Lautenberg, the split has at times strained Boxer’s relationship with other Democrats, including Udall, who enjoys new prominence this Congress as ranking member of the Appropriations subcommittee responsible for EPA, and Delaware Sen. Tom Carper, the second most senior Democrat on the environment committee. It has become an example of how Boxer has developed a reputation as someone willing to burn bridges when necessary to protect her ideological priorities on environmental bills, in contrast to her openness to compromise on less partisan issues such as highways or water infrastructure.
The Senate bill, which sailed out of committee in April, has been endorsed by at least the 60 senators necessary to overcome a filibuster, and its supporters are split almost evenly among Republicans and Democrats, an especially rare feat for what would be the biggest update to environmental law since the 1990 Clean Air Act amendments. The House voted 398-1 in June to pass a narrower TSCA bill, which lawmakers could reconcile with the Senate version. But the Senate talks surrounding this legislation have drawn the kind of drama that’s usually reserved for far more high-profile fights.
Boxer's opposition could have single-handedly kept the bill bottled up. But she says she is no longer holding it hostage after sponsors negotiated on major changes that strengthened requirements for the EPA to regulate and for industry to comply with new chemical oversight, while bolstering the role of state governments. Those negotiations took place mostly between the sponsors and her Democratic colleagues.
But now Republican senators are attempting to extract their own ransom. Sen. Richard Burr (R-N.C.) has placed a procedural hold on the TSCA bill until he can secure a vote to reauthorize the popular Land and Water Conservation Fund, which expired earlier this year.
Both TSCA and conservation fund have more than 60 senators supporting them, but because the upper chamber operates largely based on unanimous consent the bills have struggled to advance. As Burr has objected to proceeding to TSCA, Sen. Mike Lee (R-Utah) has objected to proceeding to a vote on the fund. Republican leaders have so far been unable to untangle the disagreement.
Meanwhile, Boxer was kept largely at arms length during negotiations on the chemical safety bill over the spring and summer — reminiscent of how she stepped back from negotiations on a failed climate deal in 2010. While she still plans to vote against the bill, Boxer takes credit for orchestrating changes that brought other Democrats on board for TSCA.
“I negotiated most of them so I’m very pleased with them,” she told POLITICO last month.
But Boxer's colleagues and Hill staff offer mixed assessments on how strong a hand she played in the negotiations.
"There were a large number of Democratic members who believed that the progress that had been made on the bill through the committee process had been constructive and could be built upon," recalled a Senate aide involved in the TSCA talks, who was not authorized to speak publicly. "And she was not one of those members."
Boxer's direct role in the talks began to wane days before the introduction of a new bill earlier this year from Vitter and Udall. Senate Democratic colleagues peppered Boxer with strategy questions during a March 4 meeting she called in the President's Room off the Senate floor. By the end, three of them — Sens. Sheldon Whitehouse of Rhode Island, Jeff Merkley of Oregon and Cory Booker of New Jersey — said they would pursue their own talks with Vitter and Udall, with Boxer's blessing.
“In terms of getting us on board it was really the three of us who were going to potentially provide a real bipartisan boost in the EPW committee,” Whitehouse told POLITICO. Boxer "was comfortable with us proceeding,” he added, but “the initiative was the three of us trying to move the bill to a place where we thought it could sensibly pass.”
Boxer has compared her negotiating style to that of the late-Sen. Ted Kennedy (D-Mass.) in knowing when to step away from the table and let others take over. “So I learned that when you are a chairman, sometimes you cannot be the negotiator,” she explained earlier this year. "You know, you have to be willing to take yourself out at the right moment and trust other people. And it worked.”
It remains to be seen who takes over for Boxer as leader of the environment committee's Democrats in the next Congress. Whitehouse is the next most senior Democrat who is not ranking member on another prominent committee.
Boxer deserves credit for brokering a late deal with Republicans that made it tougher to preempt preempt state environmental rules, after other Democrats had secured initial changes to those provisions. But her aggressive style has clearly soured relations with colleagues along the way.
Carper was the first Democrat to sign onto the Udall-Vitter reform bill, which incorporated changes he had requested a year earlier in a letter with 10 other senators. Not long after, Carper told Bloomberg BNA that his three-decade friendship with Boxer had “basically ended.” The two have since mended fences, but Carper says the bill has strained other relationships within the party. “For a while, it was rough going,” he told POLITICO. “And I think it was probably true for a couple of others of our colleagues.”
Boxer had previously upset Vitter and Udall in September 2014 by publicly releasing her proposed red-lined changes to their draft of the bill — a highly unusual move that breached Senate etiquette because the negotiations were meant to be private.
Relations between Boxer and Udall became further frayed after a critical March 6 New York Times article, in which Boxer said that “it looks like the chemical industry itself is writing” the bill. Udall and Vitter formally introduced the bill four days later.
Later, at another March 9 meeting Boxer organized with some environment committee Democrats, she said she was confident she could continue to sit across the negotiating table from Udall, who was not present. But some of those present suggested it would be better if she left the direct negotiating to them.
“What it amounted to was I think as close to an intervention as you’re going to get during a legislative negotiation,’” said a Senate aide who was present at the meeting.
Merkley, who was involved in the negotiations, described the process as one of "much brainstorming with all parties to get better legislation" and said Boxer was "helpful in that effort."
In October, Sen. Ed Markey (D-Mass.) and Senate Minority Whip Dick Durbin (D-Ill.) announced further changes the two of them had directly negotiated for months with Udall and Vitter, which earned their support. That brought the list of the bill's co-sponsors to a filibuster-proof 60.
During an Oct. 6 news conference outside the Capitol, senators of both parties rallied to support the bill and thank each other for their work, including Udall, Whitehouse, Markey, Carper, Vitter, Durbin and environment committee Chairman Jim Inhofe (R-Okla). They had never before been on the same side of a major environmental bill, and may never be again.
Among those singling out Udall for special praise was Whitehouse, who referenced the Greek mythological tale of Prometheus being chained to the rock and having his liver eaten every day by an eagle. “And sometimes I think the suffering of Tom Udall as he brought this through those early stages was Promethean,” Whitehouse said.
But the bill’s supporters left one name out of their thanks and congratulations: Boxer.
“I’m going to speak about it on the floor, I don’t need to be at a press conference,” Boxer said. “I know exactly who improved the bill and how.”
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Chances Dimming for TSCA Vote, Cornyn Says
Nov 11, 2015 | BNA Daily Environment Report
By Ari Natter
The chances of Senate action on legislation to overhaul the nation's primary chemical law are dimming because of a protracted fight over using the bill as a vehicle to reauthorize an unrelated environmental conservation program, Sen. John Cornyn (R-Texas) told reporters Nov. 10.
“It's looking less and less likely for this year,” Cornyn, the Senate's No. 2 Republican, said. “Anytime a senator objects you have to go through all the procedural motions and it takes a lot of time.”
While the legislation (S. 697), which would update the Toxic Substances Control Act for the first time since it became law in 1976, has broad support, it remains stalled because Sens. Richard Burr (R-N.C.) and Kelly Ayotte (R-N.H.) have placed a hold on the bill until they are guaranteed a vote on legislation to reauthorize the Land and Water Conservation Fund (LWCF).
Negotiations over the issue have been ongoing for months, but senators have yet to reach a resolution to the impasse, Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, told Bloomberg BNA.
“Unfortunately, people get backed into a corner, and things don't get done the way they should,” Inhofe said.
Still he expressed optimism the legislation would receive a vote, saying “we gotta get it done.”
‘Still Chance.'
The bill, which is supported by companies such as DuPont, 3M, and Dow Chemical Co., would require the Environmental Protection Agency for the first time to assess the safety of chemicals in commerce and assure their safety before being allowed to enter commerce.
The legislation is supported by 60 senators and has the support of Senate Majority Leader Mitch McConnell (R-Ky.), who said in early October he still wanted to bring the bill to the floor for a vote (203 DEN A-10, 10/21/15).
But overcoming the objections of Burr and Ayotte would require using up multiple days of Senate floor time and comes as the chamber still must consider legislation to fund the federal government, among other high priority bills.
The LWCF, which uses oil and gas royalties for recreation and conservation projects and expired at the end of September, has proven to be a thorny issue since it faces opposition from some House conservatives.
Burr said he believed there was “still a chance” a deal on reauthorizing the fund could be worked out and the Senate could vote on S. 697 this year.
“We might stick LWCF in something else, or we may come to an agreement where we do LWCF as an amendment [to S. 697] and then take it out of it after we pass it and let TSCA go to conference all alone,” Burr told reporters. “I think there are a lot of iterations that you can do.”
Still at present, Burr said, “I think we are to some degree at loggerheads.”
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Nanomaterials Said to Illustrate Need for TSCA Reform
Nov 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
For 10 years, the Environmental Protection Agency's efforts to get information on nanoengineered chemicals already in commerce have largely been thwarted, a senior environmental organization scientist tells Bloomberg BNA.
Either of the two bills on Capitol Hill modernizing the Toxic Substances Control Act would change that, with the Senate bill offering the most improvement, said Richard Denison, lead senior scientist with the Environmental Defense Fund.
TSCA makes it so difficult for the EPA to require companies to submit existing, let alone new, toxicity or other data, that the agency instead often chooses to “beg and plead for information,” Denison said.
Denison was an adviser on the EPA's National Pollution Prevention and Toxics Advisory Committee (NPPTAC), which released an “ Overview of Issues” paper 10 years ago recommending the agency collect a wide variety of information on nanoengineered chemicals.
The agency has yet to get the information discussed in that paper, he said.
Both the House and Senate bills to modernize TSCA would make it easier for the EPA to get existing toxicity and other information from chemical manufacturers, he said.
The House approved the TSCA Modernization Act (H.R. 2576) in June by a 398–1 vote.
A Senate committee approved the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) in April with a 15-5 bipartisan vote. That bill has stalled, however, as Republican Sens. Richard Burr (R-N.C.) and Kelly Ayotte (R-N.H.) blocked floor consideration of it as they push for a vote to permanently reauthorize the conservation fund (203 DEN A-10, 10/21/15).
Both bills would give the EPA “order authority,” meaning the agency could require companies to submit data they already have without going through rulemaking, which often takes years.
“That is a critical improvement,” Denison said.
Initial Voluntary Effort ‘Failed Miserably.’
Jeffrey Morris, deputy director for programs within EPA's Office of Pollution Prevention and Toxics, which oversees chemicals, said the EPA has wanted to obtain information to help it decide whether a nanoengineered form of a larger, or “bulk,” chemical—that already is in commerce—behaved differently in the body or in the environment and therefore might pose a risk.
TSCA provides the EPA authority to get information on new chemicals, meaning those that have not been in U.S. commerce.
The statute does not allow the agency to get information on existing chemicals, those that are or have been in commerce, unless the agency issues a regulation, negotiates an enforceable consent agreement, or secures the information voluntarily.
Hence, the agency initially tried to get information voluntarily.
EPA's voluntary approach “failed miserably,” Denison said.
Morris said EPA's voluntary program yielded good, but very limited, information.
The impression, he said, was that the information the agency obtained did not address all the nanoengineered chemicals that companies already were making and which were nanoscale forms of chemicals already in commerce.
Many Nanoengineered Products on Market
Lynn Bergeson, managing partner of Bergeson & Campbell P.C., said the EPA could have used the authority the House and Senate bills would give the agency to order the submission of existing data, without rulemaking.
The information from such a data call-in could have increased public confidence in nanoengineered chemicals that already are in commerce, she said.
Bergeson's law firm has been tracking regulatory policy aspects of nanotechnology for more than 10 years (71 DEN B-1, 4/14/04).
Types of products in commerce that are made with nanoengineered chemicals include: tennis rackets, tires, textiles, eyeglasses with water-repellent and other coatings, solar panels, fuel additives, specialized paints, antimicrobial/antibacterial coatings on mouse/keyboard/cell phone casings, and fuel storage tanks for aircraft and automobiles as well as airplane parts.
Such products are generally presumed to pose little risk to the consumer when the chemicals are embedded in solid material, such as a solar panel.
Scientists, however, have raised concerns about whether workers making the chemicals or working with them could face increased health risks and whether their release into the environment might pose particular risks given some of the special reactive, electrical and other properties of nanoengineered chemicals.
California's Experience
Unlike EPA, California's Department of Toxic Substances Control (DTSC) was able to order companies and universities to provide information they already had on nanoengineered chemicals they made or with which they were working.
The information California received from its data call-ins included worker safety, anticipated use and other information EPA has sought.
California's DTSC got the information through data call-ins it issued 2009, 2010 and 2011 regarding carbon nanotubes, quantum dots and nanoengineered metals and metal oxides.
The state agency received information including specifics about ways companies and research institutes protected workers who could be exposed; equipment they used to monitor worksites to address potential exposures; details on the purity of the nanomaterials with which they worked; and anticipated uses of the materials.
Karl Palmer, chief of DTSC's Safer Consumer Products Branch, attributed the successful data collection to two factors.
First, DTSC spent a lot of time meeting with researchers, startups and other institutions that are not typically associated with chemical regulations. Their insights helped shape the questions and determine to whom DTSC sent its data call-ins, he said.
Second, “We did not have to do rulemaking. We had broad authority in our statute,” Palmer said.
The 2006 Senate Assembly Bill 289 authorized California's EPA to seek a variety of information from chemical manufacturers including analytic tests they used to ascertain different characteristics of their chemical and tests they used to detect the chemical in different material including water, air, soil, urine and fish.
Changing priorities in DTSC caused the department to focus on the Safer Consumer Products Regulation instead of analyzing the nanomaterial data it received, Palmer said. “We haven't done a lot with it from my perspective.”
Morris, from EPA, said his agency has used insights from California's data in several ways.
For example, OPPT used California's information to help craft questions in a recently proposed rule that would collect information companies already have, but not require any new data to be generated, he said.
Proposed Rules Given to OMB Five Years Ago
After the EPA's voluntary stewardship program failed to generate the types of information the agency sought on nanoengineered chemicals, the agency sought to obtain it through rules.
The agency submitted a regulatory proposal—which combined a data collection rule section authorized by Section 8(a) of the Toxic Substances Control Act with a significant new use rule (SNUR) as authorized by TSCA Section 5(a)(2) for engineered nanoscale chemicals—to OMB on Nov. 22, 2010.
OMB is supposed to review proposed federal rules and other actions within 90 days.
Instead, OMB spent more than four years reviewing and finally cleared a Section 8(a) data-collection rule in March (55 DEN A-7, 3/23/15).
It took a long time to issue the proposed rule, Morris acknowledged.
Many agencies are interested in nanotechnologies and each needed to share its perspective and help shape the agency's data-collection effort, he said.
It also was important, Morris said, that nanoengineered chemicals not be stigmatized and that the least burdensome means be used to obtain the information EPA needed.
“We tried to focus the draft reporting rule on what we believed would be the minimal information essential to making an initial decision as to whether or not the [nanoengineered] chemical might behave differently than the bulk substance that's already on the TSCA inventory,” he said.
Industry Push Back
Nevertheless, trade associations criticized EPA's proposed rule, saying the agency did not have the legal authority to require chemical manufacturers and processors to report the information it sought (153 DEN A-3, 8/10/15).
TSCA provides lots of opportunities for industry to block the agency's efforts to obtain information about chemicals in commerce, Denison said.
Bergeson, whose law firm represents clients working with nanomaterials including the NanoBusiness Commercialization Association (NanoBCA), characterized industry's reaction differently.
Companies pushed back on EPA's requested information because the proposed rule used vague, subjective requirements, she said.
In its comments, NanoBCA raised objections such as:
• the proposed rule's definition of a reportable chemical being “inherently subjective and therefore confusing and unenforceable”;
• specific requirements being “impracticable and unenforceable” and
• there being “no lawful basis” for a proposed 135-day review period for nanoengineered chemicals that would have treated these substances differently than any other chemical under EPA's jurisdiction.
Supporting Goal, Not Specific Proposal
Over the more than 10 years she has worked on policies for nanoengineered chemicals, Bergeson said, she has begged and cajoled companies to provide the agency information it needs to review chemicals and offer the public assurance about their safety.
“But I can't look the other way when statutory authority is being misinterpreted no matter how much I want to sympathize,” Bergeson said.
The EPA could have gotten useful information from companies had it worked with interested parties to craft the data requirements it proposed, she said.
California's experience shows that companies are willing to provide information, Bergeson said.
The issue isn't whether EPA should have information on nanoengineered chemicals—it should, Bergeson said.
The problems with the particular data-collection rule the agency proposed were both structural and legal, she said. Provisions in EPA's proposal were not consistent with its legal authority under Section 8(a), Bergeson said.
“Speaking on behalf of the NanoBusiness Commercialization Association, we hope EPA issues a final rule that is consistent with TSCA's authority and addresses the agency's fundamental needs,” she said.
If the EPA had the authority under TSCA to issue a data call-in similar to that of California, the agency might not have gotten all the information it would like, but it would have gotten useful information, Bergeson said.
Senate Bill Said to Remove ‘Catch 22.’
While the House and Senate bills would have allowed the EPA to issue a data call-in, Denison said the Senate bill goes one step further in improving upon TSCA.
The bill would remove a Catch 22 that has impeded the agency's ability to require chemical manufacturers to conduct tests to generate new physical chemical, toxicity or other data when the agency concludes it needs such information to determine whether a risk exists.
Under TSCA, the EPA must find a chemical could pose a problem before it can issue a rule to evaluate whether the chemical does, he said.
Companies typically then object to the rulemaking, because they are concerned their chemicals would be stigmatized, he said.
The Senate bill would remove that Catch 22, Denison said.
The EPA would have to show that it, or another agency, needed the information and why, to get new data, he said.
The agency would, however, no longer have to make the finding that a chemical could pose a risk or that substantial exposure to the chemical may be occurring, he said.
Next Steps for the EPA
Morris declined to comment on any pending legislation.
The agency has supported and continues to support modernization of TSCA to ease its ability to get information about existing chemicals, he said.
“A new TSCA that provided us with better options to get more information on existing chemicals would be welcome,” he said.
Meanwhile, the agency will proceed under existing law, Morris said.
Comments OPPT has received on the proposed rule are being analyzed, he said.
Agency staff are finding particularly helpful some of the technical, scientific issues raised—such as how to define what constituted a “trace amount” of nanomaterial that would be excluded from the data-collection rule, Morris said.
“We are working through those technical questions. That exercise will help us irrespective of whether we proceed with rulemaking,” he said.
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CSB Must Better Protect Data, EPA Inspector General Says
Nov 11, 2015 | BNA Daily Environment Report
By Stephen Lee
Critical investigative data gathered by the Chemical Safety and Hazard Investigation Board could be at risk of theft, loss or damage because the agency isn't doing a good enough job of protecting its computer systems, a federal oversight office said Nov. 5.
The report is just the most recent in a string of tough assessments the Environmental Protection Agency's Office of Inspector General has levied against the CSB.
According to the report, the CSB didn't properly secure the keys to the server room at its Western Regional Office of Investigations in Denver. An administrative assistant was charged with keeping the keys, and she kept one of the three copies in her unlocked desk drawer, the OIG found.
The other two copies were kept in an unlocked box in a supply cabinet with a combination lock. All the employees at the office knew the combination “and could easily access the server room keys at any time,” the report said.
Data critical to CSB investigations are saved on the Denver servers.
No Environmental Controls
The CSB also didn't keep a roster of individuals authorized to get into the server room or any records of who went into the room, according to the report.
Further, the Denver office didn't implement environmental protection controls from fire and humidity, the OIG found.
During the course of the audit, which ran from May to October, the CSB implemented processes to monitor the temperature in the server room and started using a visitor access log.
In February, the OIG issued 17 recommendations to the CSB regarding its information security program. The agency has made progress in completing 13 of those recommendations, the report said.
CSB Responds
CSB Chairwoman Vanessa Sutherland, who took the reins of the agency toward the end of the OIG's investigation period, wrote in her response to the inspector general that the CSB generally agrees with the findings. Several fixes have already been implemented, Sutherland said, such as physical access logs and visitor escorts.
The CSB is also “committed to working diligently to complete the recommendations on time or ahead of schedule,” an agency spokeswoman told Bloomberg BNA Nov. 6.
Jeff Ruch, executive director of Public Employees for Environmental Responsibility, was critical of the inspector general's persistent investigations into the CSB.
“It seems that each succeeding IG report becomes increasingly trivial,” Ruch told Bloomberg BNA Nov. 6. “In this one, the IG is reporting on the office thermostat setting. Our concern is that this IG is devolving into a nit-picking hall monitor whose work becomes more and more tangential to safety of our chemical industrial infrastructure.”
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Senators Propose PHMSA Reauthorization With Inspection Reporting Deadline
Nov 10, 2015 | PoliticoPro - Whiteboard
By Elana Schor
A bipartisan quartet of senators today released a proposal to reauthorize the nation's pipeline safety regulatory agency that requires it to report back to companies within 30 days of completing an inspection.
The new bill from Sens. Deb Fischer, Cory Booker, Steve Daines, and Gary Peters would also require the Pipeline and Hazardous Materials Safety Administration, an arm of the Department of Transportation, to prioritize previously unfulfilled mandates before pursuing new regulations.
Fischer and Booker are the senior members of the Senate Commerce Committee's subpanel with jurisdiction over the issue, while Daines and Peters have both taken a keen interest in pipeline safety following high-profile oil leaks in their home states.
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Pennsylvania Seeks Input on Pipeline Report
Nov 11, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
A 48-member task force in Pennsylvania charged with formulating guidelines for future pipeline development across the shale-rich state issued its first draft report Nov. 10 and is seeking public feedback through Dec. 14.
The Pennsylvania Department of Environmental Protection (DEP) released the draft report from the governor's Pipeline Infrastructure Task Force on its website Nov. 10.
Gov. Tom Wolf (D) established the task force in May to help find ways that Pennsylvania could take advantage of its energy resources while protecting the environment and public health.
More than 4 trillion cubic feet of natural gas were produced in Pennsylvania in 2014, making Pennsylvania the second-largest supplier of natural gas in the country, according to the report. Yet almost one-third of the wells drilled in Pennsylvania since 2004 are shut in because there aren't enough pipelines to move gas from the well to end users, the report says.
In a written statement, DEP Secretary John Quigley called the report a “milestone in developing the framework to help guide responsible pipeline development in Pennsylvania.”
The task force's 12 working groups made 184 recommendations in the report on pipeline planning, permitting, construction, safety, long-term operation and maintenance.
Pennsylvania currently has more than 12,000 miles of large pipeline in the ground, the report says. The miles of gathering lines alone are expected to quadruple by 2030.
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Senators Release Pipeline Reauthorization Bill
Nov 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Four senators introduced Nov. 10 a 25-page bill that would reauthorize through 2019 pipeline safety programs.
The Securing America's Future Energy: Protecting Infrastructure of Pipelines and Enhancing Safety (SAFE PIPES) Act (bill number unavailable) would provide the nation's pipeline safety regulator direct hiring authority.
The bill also would request or encourage the Pipeline and Hazardous Materials Safety Administration to conduct integrity management assessments for natural gas and liquid pipelines and advanced mapping technology reviews, and would ensure coordination on research and development with industry and the public.
“America's pipelines move critical energy resources to our homes and businesses. Congress must conduct robust oversight to ensure the safety of this important network,” Sen. Deb Fischer (R-Neb.), chairman of the Senate Commerce, Science and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security, said in a statement. “That is why I'm proud to join my colleagues today to introduce bipartisan pro-safety legislation to reauthorize PHMSA.”
Authorization for pipeline safety programs expired at the end of September. The Senate's SAFE PIPES bill, which is co-sponsored by subcommittee ranking member Cory Booker (D-N.J.) and two others, is the first to be introduced during this round of reauthorization.
Sens. Steve Daines (R-Mont.) and Gary Peters (D-Mich.) are also co-sponsors of the long-awaited legislation.
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AGA to Congress: Consider Unfinished Pipe Business
Nov 11, 2015 | BNA Daily Environment Report
The American Gas Association is urging Congress to consider how many rules and initiatives the nation's pipeline regulator still hasn't completed, as the legislature works to craft a pipeline reauthorization bill. Citing an American Gas Foundation-funded report released Nov. 10, the association said pipeline safety rules and voluntary efforts by industry have resulted in improved safety. But several efforts are still nascent, including rules that the Pipeline and Hazardous Materials Safety Administration hasn't finalized since its previous reauthorization in 2012. “We hope Congress will take this report, our track record of success and all the rules that have still yet to be finalized and implemented into account when considering the reauthorization of pipeline safety legislation,” Christina Sames, a vice president with the gas association, said in a statement. Authorization for pipeline programs under PHMSA expired at the end of September (189 DEN A-27, 9/30/15). No bill has been introduced to reauthorize the programs. The report, which was prepared by Van Ness Feldman LLP, is available at http://www.gasfoundation.org/researchstudies/pipelinesafety.pdf.
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Feds Reject Call For Tougher Fire-Resistance For Crude Oil Tank Cars
Nov 10, 2015 | The Chicago Tribune
By Richard Wronski
Federal officials have rejected a call to toughen the fire-resistance of railroad tank cars that carry highly flammable crude oil, hundreds of which pass through the Chicago area each day.
The U.S. Department of Transportation is standing by its decision issued last spring that new and retrofitted tank cars be required to withstand being engulfed in a pool of burning liquid for 100 minutes without exploding.
Critics say slightly more than an hour and a half is too little time for police, firefighters and other first responders to react to the fiery derailment of a train hauling crude oil or ethanol.
Response time is of critical importance in the Chicago area, the nation's railroad hub. Scores of trains pass through each week hauling highly flammable crude oil from North Dakota's Bakken shale fields to refineries, generally on the East Coast.
When a BNSF train hauling 103 cars of crude oil derailed near Galena on March 5, witnesses said it took about only an hour for tank cars to explode, sending fire balls hundreds of feet into the sky. The explosions were so dangerous that firefighters couldn't get close enough to extinguish the flames, officials said.
The Association of American Railroads had urged the U.S. to reconsider its decision, issued in May. The association sought adoption of a tougher standard of thermal protection -— up to 800 minutes, more than 13 hours — to give responders adequate time to react to an incident.
But federal officials rejected the association's arguments, saying that 100 minutes was adequate time for first responders to assess an accident and take action, such as evacuating the area around a crude oil train derailment.
"There has not been any evidence presented that the current (100-minute) requirement is insufficient for achieving these goals," according to the decision by the Transportation Department's Pipeline and Hazardous Materials Safety Administration.
The decision was signed Nov. 5 by agency administrator Marie Therese Dominguez. The agency also rejected four other appeals of its May 8 rules regarding tank cars.
The decision "provides no comfort level," said Barrington Fire Chief James Arie. "It's confusing at best, disappointing to say the least."
In Barrington, at the intersection of two major rail lines, the Canadian National and the Union Pacific, officials would need to muster personnel and equipment and organize the proper response to a tank car derailment, including the possible evacuation of the heavily populated nearby area, Arie said.
"That's no small feat," Arie said. "It takes a long period of time to get those resources together. One hundred minutes goes by very quickly."
In west suburban Riverside, which straddles the BNSF Railway tracks and where crude oil trains also pass through daily, local police and firefighters would likely be the first to arrive at a derailment, but it could take 45 minutes for assistance to arrive from other departments via a mutual aid agreement, police Chief Tom Weitzel said.
A crude oil or ethanol derailment could necessitate the evacuation of an area within a half-mile of the scene and could take considerable time and personnel, Weitzel said.
"A hundred minutes makes no sense," Weitzel said.
The new regulations announced in May call for a three- to five-year phaseout of older-model tank cars, known as DOT-111s, that the National Transportation Safety Board and other experts have declared unsafe. The cars must be retrofitted or replaced with new ones that have stronger shells and valves, and protective shields to better withstand a collision or derailment
The latest federal data, first reported April 4 by the Tribune, shows about 437,000 barrels of Bakken crude oil being shipped daily from North Dakota to East Coast refineries. That is equivalent to as many as 42 mile-long tank car "unit trains" passing through Chicago and the suburbs each week.
The 100-minute requirement retained by the PHMSA decision is a 20-year-old standard that experts and the railroad industry say was written with liquefied petroleum gas in mind, not volatile crude oil or ethanol.
The PHMSA decision did not cite what happened in recent fiery derailments, including three that occurred in Illinois.
In the Galena incident, authorities said the tank cars survived the derailment intact, only to be engulfed in a flaming pool of oil that leaked from damaged cars and was ignited by a spark. The heat built up so much pressure within the cars that they blew up.
In Tiskilwa, 800 residents were evacuated after an ethanol train derailed and caused a massive explosion on Oct. 7, 2011.
A Canadian National Railway tank car train hauling 75 tank cars with ethanol derailed in Cherry Valley, near Rockford, on June 19, 2009. A massive fireball erupted and resulted in one death, nine injuries and the evacuation of 600 houses.
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(ACC Mentioned) EPA Regional Consistency Rule Questioned by Industry
Nov 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An Environmental Protection Agency proposal to update its regional consistency regulations would be illegal under the Clean Air Act and conflict with more than 40 years of agency policy, a variety of industry associations said.
Industry groups representing the petroleum, chemical and power sectors argued in comments that the EPA's proposal to allow regional offices to implement locally or regionally applicable court decisions without affecting national policy would conflict with Clean Air Act language requiring the uniform application of policies and procedures nationwide. Those groups predicted several adverse consequences if the EPA moves ahead with its proposal, including the possibility that businesses will be put at a competitive disadvantage based on their location due to differing regulatory requirements.
The EPA in August proposed (RIN 2060–AS53) to amend the regional consistency regulations to establish an exception for federal court decisions not issued by the U.S. Supreme Court or the U.S. Court of Appeals for the District of Columbia Circuit. The proposal would allow regional offices to implement local and regional decisions while other EPA regions would not be required to do the same (80 Fed. Reg. 50,250; 152 DEN A-5, 8/7/15).
The agency said its proposal was necessary to ensure that the Supreme Court and the D.C. Circuit would be the only courts with authority to issue decisions that have a mandatory nationwide effect. Section 307(b) of the Clean Air Act gives the D.C. Circuit exclusive jurisdiction over lawsuits challenging nationally applicable regulations and state or regionally applicable rules that have been deemed to have nationwide scope or effect. The Supreme Court has jurisdiction over any appeals to those D.C. Circuit rulings.
Industry: Uniformity Language Clear
Industry groups that oppose the EPA's proposal used their comments to raise arguments that could be litigated if the agency moves ahead with the rulemaking, namely whether the exception would violate clear language in a different part of the Clean Air Act governing the uniformity of national regulations.
The Class of ‘85 Regulatory Response Group, a coalition of about 30 companies involved in the power sector, said in its comments that the proposed exception would violate Section 301(a)(2) of the Clean Air Act, which requires the EPA to “assure fairness and uniformity” in policies for the implementation and enforcement of the Clean Air Act. The power sector group, which includes Xcel Energy Inc., Alliant Energy Corp. and others, argued the EPA's proposed interpretation of that statutory language would be legally indefensible.
“This language is clear and unambiguous: it requires EPA to uniformly implement and enforce the CAA across the country,” the Class of ‘85 group said. “EPA's proposed interpretation, which would allow for disparate implementation and enforcement of the CAA in different EPA regions, is indefensible.”
The American Petroleum Institute and the Interstate Natural Gas Association of America in joint comments also argued that the EPA's regional consistency proposal would conflict with Section 301(a)(2) of the Clean Air Act
“In effect, EPA proposes to issue regulations that would encourage, and codify, inconsistencies in national policies that would directly contradict the plain language of the CAA,” the API and INGAA said.
The EPA defended its authority to establish an exception in the regional consistency regulations, which the agency said would be a “reasonable extension” of the existing policies. The agency said there is nothing in Section 301(a)(2) of the Clean Air Act that suggests Congress wanted that provision to conflict with the judicial review provisions that gives the D.C. Circuit sole jurisdiction over rules that have nationwide effect.
Court Didn't Rule on Issue
The EPA said that it became aware of the need for an exception to the regional consistency regulations following a 2014 D.C. Circuit ruling that vacated an EPA policy memorandum related to title V operating permitting decisions. The D.C. Circuit ruled in that litigation that the memo violated the regional consistency regulations because it instructed regional officials to apply different permitting requirements in different regions (Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 752 F.3d 999, 78 ERC 1943, 2014 BL 150327 (D.C. Cir. 2014); 105 DEN A-16, 6/2/14).
The D.C. Circuit in that opinion said the agency could address the ruling by revising its regional consistency rules.
The National Environmental Development Association's Clean Air Project, the petitioner in that litigation, said in its comments that while the D.C. Circuit suggested the agency could revise its regional consistency rules, the court never actually reached the legal question of whether the Clean Air Act required uniformity of regulatory decision making. The court's suggestion that updating the regional consistency rules was an option does not condone the EPA's proposal to apply the Clean Air Act differently depending on region, the association said.
The association, which includes Koch Industries Inc., BP America and Exxon Mobil Corp., said the EPA's proposal would solve the interpretative problem identified by the D.C. Circuit in Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA. However, the association argued the proposal would violate Section 301(a)(2) and be inconsistent with more than 40 years of the EPA's interpretation that the law requires uniformity and consistency in carrying out the Clean Air Act.
Adverse Effects Predicted
Various industry groups predicted that allowing regional policies to vary based on judicial decisions could have several negative practical effects.
The API and INGAA said inconsistently applied regulations could create an “unlevel commercial playing field” in the U.S., with some businesses placed at a competitive disadvantage because they would be subject to different regulatory requirements than competitors based in other regions.
The Class of ‘85 group said creating such an exception to the regional consistency regulations would “open the floodgates for excessive ligation” over whether EPA actions should be classified as one of national applicability or regional and local applicability. Additionally, the group predicted the EPA's proposal would lead to additional litigation that intends to expand a court's regional decision to apply in more jurisdictions.
A coalition of 16 industry groups, including the U.S. Chamber of Commerce and the American Chemistry Council, said in its comments that the proposed exception would “introduce new complexity” to regulation under the Clean Air Act.
The industry coalition also raised concerns that the proposal would give the EPA “too much discretion to apply arbitrary and unspecified factors” when determining how judicial decisions from district courts and circuit courts other than the D.C. Circuit should be applied. The coalition suggested that if the EPA moves ahead with its proposal to create an exception under the regional consistency regulations, it only allow such an exception on a case-by-case basis, with each decision subject to a full notice-and-comment rulemaking that would give affected parties a fair opportunity to participate.
The comment period for the proposed regional consistency rule closed Nov. 3. The EPA's regulatory agenda projects it will issue a final rule by October 2016.
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Sanders Says He Opposes New Bakken Oil Pipeline
Nov 10, 2015 | PoliticoPro - Whiteboard
By Elana Schor
Democratic presidential hopeful Sen. Bernie Sanders today came out against a pipeline that would carry as many as 570,000 barrels a day of light U.S. shale oil through Iowa, raising pressure on frontrunner Hillary Clinton to weigh in.
Sanders' opposition to the $3.8 billion Dakota Access pipeline comes after he touted his early opposition to Keystone XL following Obama's rejection of that pipeline on Friday. Clinton took several years to speak out against Keystone publicly.
"The vast majority of scientists tell us that climate change is real, it is caused by humans, and it is already causing devastating problems," the Vermont Independent said in a statement to the Des Moines Register. "They say that if we do not aggressively transition our energy system away from fossil fuels toward energy efficiency and sustainable energy, the planet we leave our children will be a much less habitable place."
The Iowa Utilities Board is set to begin hearings Thursday on the pipeline, which would run from shale-rich areas of North Dakota to Illinois.
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FERC's Clark Doesn't Expect 'Keystone-Like Debacle' On Gas Pipelines
Nov 10, 2015 | E&E News PM
By Edward Klump
It's unlikely the politics that engulfed a federal review of the Keystone XL oil pipeline project will flow into a process for interstate gas pipeline permitting, Tony Clark of the Federal Energy Regulatory Commission said today.
Clark, speaking to reporters at a conference here, pointed to the Natural Gas Act and an independent regulatory model for interstate gas pipelines that he said employs a more judicial approach and relies on a record and due process to reach decisions.
The setup was different for TransCanada Corp.'s Keystone XL proposal, which was rejected this month by the U.S. Department of State after a multiyear review (Greenwire, Nov. 6). That decision was hailed by environmental interests and blasted by the pipeline's supporters.
"The State Department process was something just sort of out of this world," Clark said.
He said that "it became enmeshed in politics and presidential politics and interest group politics, and it really wasn't about the process of how you rationally site infrastructure projects, I don't think."
Clark said trade press reports suggest groups that don't like pipeline infrastructure projects would like to see a more political process imposed on how the Natural Gas Act functions.
"I think there's a large body of case law and regulatory precedents which would indicate that we base it more on the rule of law as opposed to a more political process, and I think it's the right way to handle it," the FERC commissioner said.
Clark added: "And that probably mitigates the chance that you would have a Keystone-like debacle begin happening on the natural gas side."
He said FERC is more visible than in the past, with increased protests and intervention in its cases. But even with more attention, Clark said, the agency is focused on making sure the Natural Gas Act is upheld in line with rules and precedent.
"We are truly an independent agency," he said.
KXL would have connected to Canada, and Clark said it became so political because the State Department was involved due to its crossing of a border. Otherwise, he said, it largely would have been sited by state utility commissions.
Clark said FERC needs to be able to defend a certificate for a pipeline in front of a judge because decisions can be appealed in court. And the number of interveners means it's likely a major project will be appealed to court, he said.
"It causes us to make sure that we're doing our job really, really well," Clark said, adding that FERC has a good track record of decisions being upheld. Addressing 'comments and concerns'
With a lot of data points, he said, larger projects can perhaps take more time than in the past.
"We need to make sure that all of those protests and comments and concerns are addressed and we have a response for them," Clark said.
Colette Honorable, another FERC commissioner here today, declined to comment on KXL or its implications in an interview. But she offered a general statement.
"I do think that the regulatory process is tried and true," she said. "It's open and transparent, and there is a great opportunity for a number of diverse stakeholders to participate."
It's possible another pipeline proposal that crosses an international border could trigger another State Department review.
Clark said that "there was nothing remarkable about Keystone," calling it "just another pipeline" project that probably was similar to many others in service or being put in service.
"It just became a cause célèbre because politics intervened" and it turned into "a symbol of pipes themselves," he said.
"Is there a chance that a group picks out one particular pipeline on the gas side and says, 'We're going to protest this so we make a symbol of it,' and it happens to cross a border? I suppose there's some potential."
But Clark said the dynamics are different in the gas pipeline industry, as there isn't that much need for a pipeline tied to Canada given shale development in the United States.
On interstate natural gas pipelines, Clark said Congress has given FERC authority to deal with siting of pipelines. Still, he said things can occur at state and local levels that can "frustrate and slow that process," noting air and water quality permits.
Clark said courts generally have held that a state can't seek to use its process as a "backdoor mechanism" that could give it authority over interstate gas pipelines.
The commissioner also mentioned Keystone XL during a panel at the National Association of Regulatory Utility Commissioners conference today as he discussed the value of an independent regulatory model.
Meanwhile, he said KXL -- regardless of how one felt about it -- sat "around as a matter of politics" and wasn't decided for years.
Clark said "how the Keystone XL permitting process went" at the State Department is "exactly how you do not want" infrastructure development to unfold.
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Natural Gas Groups Criticize Residential Furnace Rule
Nov 11, 2015 | BNA Daily Environment Report
By Rebecca Kern
The natural gas industry criticized the Energy Department for not providing additional analysis of the cost impacts of the proposed energy efficiency standards for non-weatherized gas residential furnaces.
“Without better knowledge of the particular inputs and assumptions used by the department in its analysis, [American Gas Association] and other stakeholders remain unable to make a reasonable assessment of the scenarios put forward” by the Energy Department, the American Gas Association said in its Nov. 6 supplemental comments on a notice of data availability (NODA) on the residential furnace standard.
The American Gas Association (AGA) and the American Public Gas Association (APGA), which represent natural gas utilities, were among a number stakeholders that filed comments Nov. 6 on the department's NODA (RIN 1904–AD20), published in the Federal Register Sept. 14, which provided additional information related to the proposed standards for residential non-weatherized gas furnaces.
The natural gas industry has opposed the standards, which would require residential furnaces meet a 92 percent minimum annual fuel utilization efficiency standard and would apply to all affected appliances made on or after the date of the final rule, expected to be in 2021(48 DEN A-3, 3/12/15).
The gas industry has said the standards are too costly to implement and that the department's rulemaking process and analysis has not been transparent (61 DEN A-11, 3/31/15).
The gas industry and other stakeholders, including energy efficiency groups, environmental groups and appliance manufacturers, have been meeting since the summer to develop their own residential furnace efficiency standard. The stakeholders would like for the Energy Department to adopt their standard or for it to be included in energy legislation in Congress (141 DEN A-16, 7/23/15).
Lack of Transparency
The AGA and APGA contracted with the Gas Technology Institute, a research organization, to conduct a technology review of the analysis presented in the department's NODA.
Particularly, the groups are concerned with the lack of information provided by the department on changes made to its life cycle cost estimates for the appliances, which is the total customer expense over the life of an appliance, including purchase and operating costs. The groups are also concerned with the lack of transparency provided on how the department reached its payback period estimates, which is the amount to time it takes customers to recover the assumed higher purchase prices of a more energy-efficient appliance through lower operating costs.
While the groups noted that changes to the life cycle cost estimates were released after the proposed rule was issued, the changes to the calculations used for developing life cycle cost savings in the NODA analysis produce “significantly different results than the calculations used in the [notice of proposed rulemaking] analysis.”
“AGA is disappointed in the lack of transparency associated with these changes in the life cycle cost and payback period spreadsheet/model that has impacted its ability to effectively evaluate the results produced in the NODA,” AGA said in its comments.
Groups Call for Stronger Standards
Separately, the American Council for an Energy-Efficient Economy, a group that advocates energy efficient appliance standards, said in its Nov. 6 comments that the department should issue a standard for 95 percent minimum annual fuel utilization efficiency, which would be even greater than the 92 minimum annual fuel utilization efficiency in their proposed standard.
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State Field Likely Set for Clean Power Plan Legal Fray
Nov 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
Just five states are not currently involved with litigation on the Environmental Protection Agency's Clean Power Plan and at least two of those—Pennsylvania and Nevada—don't plan to enter the legal fray.
Both Pennsylvania and Nevada have concluded that developing state implementation plans for implementing the carbon dioxide emissions cuts for existing power plants will maximize flexibility and they have already begun work on them, spokesmen for Govs. Tom Wolf (D-Pa.) and Brian Sandoval (R-Nev.) told Bloomberg BNA Nov. 9.
“In the interest of the state's energy future and ratepayers, I have asked the Nevada Division of Environmental Protection to draft a plan of compliance for the Clean Power Plan rule,” Sandoval said in a statement to Bloomberg BNA. “By pursuing this strategy, we will avoid the automatic implementation of a federal plan and provide Nevada with the best opportunity to develop a proposal that will utilize the state's portfolio of clean energy resources.”
Idaho Gov. C.L. “Butch” Otter (R), whose state is also currently not involved with the proceedings, told Bloomberg BNA in a statement he is “continuing to assess what role if any Idaho will play in this lawsuit going forward.”
Twenty-seven states have already challenged the regulation in the U.S. Court of Appeals for the District of Columbia Circuit, while a coalition of 18 states and other major cities have intervened to defend the Clean Power Plan (West Virginia v. EPA, D.C. Cir. , No. 15-1363, motion filed 11/4/15; 214 DEN A-3, 11/5/15).
The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that will be implemented by state regulators.
Pennsylvania Moving Quickly
Neil Shader, press secretary for Pennsylvania's Department of Environmental Protection, told Bloomberg BNA the state intended to begin developing its plan to comply with the regulation Nov. 13 right after the public comment period ends (199 DEN A-6, 10/15/15).
“The administration is focused on moving forward with writing a strong, well-tailored state plan, which is why we have spent the past several months engaging the public, industry stakeholders, legislators and more at 14 listening sessions across Pennsylvania,” Shader said. “The goal is to craft a state plan that will work for Pennsylvania and will stand on its own merit.”
Both Idaho and Tennessee, also not currently involved with the litigation, say their states have “unique circumstances” that mean the Clean Power Plan will affect their states in different ways than most of the rest of the country.
“Idaho is impacted by this rule differently than many of the other states involved in the lawsuit because we have no coal-fired generating plants but instead import energy produced from coal,” Otter said. “Nonetheless, I am very concerned that the EPA is moving forward with the Clean Power Plan because it lacks jurisdiction and is infringing on a role traditionally left to the states.”
Harlow Sumerford, communications director for Tennessee Attorney General Herbert Slatery III, told Bloomberg BNA Nov. 10 his state was unique because it got most of its power through the Tennessee Valley Authority, a federally owned corporation.
“We have consulted with the Tennessee Department of Environment and Conservation and are finalizing our review of the rule, which includes considering alternatives,” Sumerford said. “Our review of the rule is largely impacted by the impact it has on TVA, which differentiates us from other states.”
Alaska, which is exempted from the final Clean Power Plan, is also not participating in the litigation and did not respond to multiple requests for comment.
Rule ‘Not Based in Reality.'
Separately Sen. Joe Manchin (D-W.Va.) slammed the EPA's carbon dioxide emissions limits for new power plants (RIN 2060-AQ91) in a letter to the agency as “not based in reality” and said recent media reports of a struggling Canadian project further support the notion that carbon capture and sequestration technologies are not “adequately demonstrated.”
“EPA should recognize that it has erred by once again prescribing a technology that has not been adequately demonstrated,” Manchin wrote to EPA Administrator Gina McCarthy. “I am completely sympathetic to the need for standards to be ‘technology-forward'; however, imposing requirements that are commercially impractical is unreasonable.”
In its final rule, the EPA set a carbon dioxide emissions limit of 1,400 pounds per megawatt-hour for new coal-fired power plants. Meeting that limit would effectively require at least the partial use of carbon capture and sequestration technologies. The EPA partly based that decision on the operation SaskPower International Inc.'s Boundary Dam Integrated Carbon Capture and Storage Project, which began operations in 2014 (63 DEN A-8, 4/2/15).
Manchin further called for the EPA to immediately “rescind” the final regulation and “allow the U.S. coal industry out from under this unfair regulatory overhang.”
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Sierra Club Pushes 4 GOP Moderates On Clean Power Plan
Nov 10, 2015 | E&E News PM
By Amanda Reilly
The Sierra Club is pressuring the four members of a Senate Republican working group on the environment to oppose congressional attempts to overturn the Clean Power Plan.
In a statement today, Sierra Club Executive Director Michael Brune said voting against Congressional Review Act resolutions that would scuttle the Obama administration's carbon rules for power plants would be the "only way" for the newly formed working group "to be taken seriously."
Republican Sens. Kelly Ayotte of New Hampshire, Lamar Alexander of Tennessee, Mark Kirk of Illinois and Lindsey Graham of South Carolina announced the Senate Energy and Environment Working Group late last month. They plan to meet periodically to "discuss general energy and environmental issues and exchange ideas about potential legislation" (Greenwire, Oct. 29).
"The climate crisis is the greatest environmental threat our country has ever faced, and the Clean Power Plan is one of America's strongest policies to combat it," Brune wrote. "With these CRA votes, this new working group has an opportunity to prove its mettle and side with the majority of Americans by supporting the Clean Power Plan."
U.S. EPA is requiring states to write and put in place plans to reduce carbon dioxide emissions from existing power plants.
Opponents of the plan have introduced a CRA resolution to block it in the Senate; another CRA resolution would block EPA's carbon regulations for new and modified power plants.
The leader of the Senate working group, Ayotte, offered the first Republican support for the Clean Power Plan last month. Locked in a tight race for re-election against New Hampshire Democratic Gov. Maggie Hassan, Ayotte said she supported the plan "to protect New Hampshire's beautiful environment for our economy and for our future."
But the other three members of the group have signaled that they would vote for the CRA resolutions.
Graham and Alexander are co-sponsors of both resolutions. Alexander reiterated his opposition today when asked about the Sierra Club's request.
"I vote for clean air. I vote for conservation," Alexander said. "I don't support outlandish rules."
While not a sponsor, Kirk also has reportedly said he would vote to block the Clean Power Plan through the resolutions.
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Judges Won't Consider Key Precedent On EPA Standards
Nov 11, 2015 | E&E News PM
By Jeremy P. Jacobs
Federal judges today rejected a bid from environmental groups to reconsider an important legal precedent for how U.S. EPA calculates air standards.
The Sierra Club and other groups asked the U.S. Court of Appeals for the District of Columbia Circuit to reconsider its July ruling upholding EPA's standards for chrome-plating facilities (Greenwire, July 21).
Their rehearing request had far-reaching implications. The Sierra Club sought an en banc rehearing, meaning before all the court's judges, in order to overturn earlier D.C. Circuit precedents on how EPA sets new air standards.
The case concerns whether EPA is required to recalculate the maximum achievable control technology (MACT) floor, the benchmark determined by averaging the least-emitting 12 percent of facilities at the time new standards are drafted.
The Sierra Club argued that calculation must be undertaken every time EPA updates a standard to account for technology advancements within the regulated sector.
If it isn't mandated to make a MACT floor determination, the group said, EPA can set standards "at any level it chooses" and therefore is shirking its responsibilities under the Clean Air Act (Greenwire, Sept. 8).
Three-judge D.C. Circuit panels have on two occasions ruled that EPA is not required to recalculate the MACT floor, most notably in the 2008 case Natural Resources Defense Council v. EPA.
Green groups sought a rehearing for the chrome-plating case in hopes that the larger en banc panel would overrule that precedent.
The D.C. Circuit didn't bite, however. In a customary short order without explanation, the court denied the rehearing petition.
EPA's chrome-plating standards were issued in 2012 for the country's roughly 1,300 facilities that dip goods ranging from gardening tools to airplane components in chemical baths that provide a corrosion-resistant finish.
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Kerry Wants To Include Climate Change In Nation Risk Assessments
Nov 10, 2015 | E&E News PM
By Ariel Wittenberg
The State Department is forming a task force to determine how best to include climate change issues in country risk assessments, Secretary John Kerry said today.
Kerry announced the task force during a speech at Old Dominion University in Norfolk, Va., about the intersection between climate change and national security.
He said giving embassies reports on how conflicts could be exacerbated by climate change would help American diplomats be more proactive in preventing them.
"The strategic plans our embassies use should look at climate change so we can work with local governments on the issues and so we can do it before they evolve into deep grievances that devolve into armed conflicts," Kerry said. "By overlaying climate vulnerability with risk assessments, we can find areas where the combined risks are high and where there are opportunities for conflict prevention before it is too late."
Delivered on the eve of Veterans Day to an audience full of veterans and active-duty sailors from nearby Norfolk Naval Station, Kerry's remarks underscored the gravity of climate change as a "threat multiplier," describing how extreme droughts in Nigeria and Syria led to armed conflicts there.
"Climate change did not lead to the rise of Boko Haram, but severe drought and government instability to cope helped create a vulnerability that the terrorist group exploited," he said. "It is not a coincidence that just before the unrest in Syria, the country experienced its worst drought on record."
During his speech, Kerry slammed the partisan divide in the United States over climate change, saying that "those who continue to make climate change a political fight put us all at risk."
"We cannot sit idly by and allow them to do that," he said. "This is going to be like Mother Nature on steroids, and it is going to have very real impacts on our communities, our economy and our military. It will exacerbate the devastating challenges we already face."
Kerry said the issue of climate security is inconvenient for climate change doubters who decry environmentalists as tree huggers because it shows that "climate change is not just about Bambi."
"Those who paint climate change as just another partisan issue do not like to hear that part of the argument," he said. "Believe me, I wish I were wrong about this. It would be better for all of us if I were exaggerating the urgency of this threat."
Kerry also criticized those who reject mainstream climate science and dispute the mounting scientific evidence that climate change is real.
"A lot of us went to high school and learned that the sun rises in the east and sets in the west because the Earth revolves around its axis -- and we believe that even though we are not scientists," he said. "There is just a complete disconnect."
The secretary of State drew on his own service as a lieutenant in the Navy during the Vietnam War to underscore the importance of fighting climate change.
He described skippering a patrol boat on the Mekong River, where he said he remembered "being struck by the incredible natural beauty of the rivers and the delta and the constant movement of people and goods in it."
"Despite the war, the river was central to daily life," he said.
Kerry said that when he returned to visit the Mekong River as secretary of State, he was struck by the region's vulnerability to climate change.
"The future of that region and others, in particular places near the water," he said, "will depend on whether we as a global community can come together and address the challenge of climate change."
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EPA Asks North Dakota Court To Stay CWA Suit Pending 6th Circuit Ruling
Nov 10, 2015 | InsideEPA
By Bridget DiCosmo
EPA is asking the U.S. District Court for the District of North Dakota to stay a lawsuit filed by 11 states over the agency's Clean Water Act (CWA) jurisdiction rule until the U.S. Court of Appeals for the 6th Circuit rules on whether it has power to hear suits over the rule, arguing that a stay is vital to avoid creating duplicative litigation.
Litigation over the rule -- which EPA jointly crafted with the Army Corps of Engineers -- is proceeding in federal appellate and district courts, even as some lawmakers eye legislation that would force the agencies to scrap the policy. A coalition of farming, building and other industry organizations is urging Democratic senators that voted against such a measure to change their position and force the agencies to craft a new rule to define the CWA's scope.
The CWA rule released earlier this year is designed to resolve uncertainty about the reach of the law following Supreme Court rulings that created competing tests for jurisdiction. But critics, including the states that have filed suit over the policy, argue that it expands the scope of the law far beyond what Congress intended.
A group of 11 states filed suit over the rule in the district court in North Dakota. In that case, Chief District Judge Ralph Erickson in August held that district courts have authority over the rule and granted an injunction against the rule's implementation that applies only within the borders of the 11 states suing in North Dakota. But EPA is now arguing that the court should stay the suit pending a decision from the 6th Circuit.
The appellate court will hear oral argument Dec. 8 in consolidated litigation over the CWA rule, weighing the question of whether suits should be heard in that court or first heard in district courts.
'Jurisdictional Question'
The Department of Justice (DOJ) on EPA's behalf in the North Dakota litigation, filed by that state and 10 others, argues in a Nov. 9 reply brief, “There is no reason to proceed on this issue when the Sixth Circuit is poised to opine on the jurisdictional question,” and therefore the court should stay the lawsuit.
DOJ refutes the states' argument that the litigation should proceed because a decision by the 6th Circuit will bind the states because a favorable ruling for EPA in the appellate court means the district court suits could be dismissed. “The Court need not decide in this motion for a stay whether the Sixth Circuit’s decision has binding effect because, at a minimum, the Sixth Circuit’s decision (and its reasoning) will be highly informative,” the brief says.
DOJ previously filed briefs in at least eight district courts on Oct. 13 and 14 asking judges to hold proceedings until the 6th Circuit decides which courts have the power to consider suits over the CWA rule. The 11th Circuit is also weighing whether challenges to the rule belong in federal district or appeals court.
Under the CWA only challenges to specific types of rules must be initiated at the appellate level, while others should be brought to district court. But it is unclear which category a rule governing the reach of the act falls under, which has led challengers to file an array of suits at both levels of federal courts.
Critics of the CWA rule continue to file lawsuits in various courts, with the American Exploration & Mining Association filing suit Nov. 9 in the D. C. Circuit. The filing notes uncertainty over which court has jurisdiction to hear the challenges and says that the lawsuit is being filed “out of an abundance of caution.”
Pending Legislation
Meanwhile, a coalition of farming, building, and other industry groups Nov. 10 sent a letter to Senate Democrats urging them to reconsider their opposition to S. 1140, a bipartisan bill that would force EPA and the Corps to withdrawal the final rule and craft a new draft based on extensive public outreach.
The letter asks Democratic Sens. Chris Coons (DE), Tom Carper (DE), Tim Kaine (VA), Mark Warner (VA), Bill Nelson (FL), Dianne Feinstein (CA), Brian Schatz (HI), Jon Tester (MT) and Sen. Angus King (I-ME) who caucuses with Democrats, to reconsider support for S. 1140. The letter is signed by a host of state and local Chambers of Commerce, home builders, farm bureau and other groups, including the Florida Farm Bureau Federation, the Maine Arborist Association, the Montana Building Industry Association and other organizations.
The senators in a Nov. 3 letter to EPA and the Corps urged the agencies to resolve confusion about the rule's implementation, warning that if the agencies fail to provide such clarity then they could potentially support measures to force revisions to the rule such as a bill that failed in a recent floor vote.
In the industry coalition's letter, the groups say, “No amount of the “clearer and concise implementation guidance” you call for in your letter can address the flaws in the final rule, because, unless and until a court of law orders it vacated or remanded, EPA will assert the final promulgated rule is the law of the land. The letter asks the lawmakers to “reconsider” support for S. 1140 when the Senate again takes up the issue. S. 1140, by Sen. John Barrasso (R-WY), failed in a 57-41 vote on a motion to invoke cloture that would have allowed the legislation to proceed to a floor vote. The eight Democratic senators and King who wrote the recent letter to EPA and Corps say they are not ruling out supporting a similar bill in the future.
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Groups Up Pressure on 11 Senators Over Waters Rule Vote
Nov 11, 2015 | BNA Daily Environment Report
By Anthony Adragna
Eleven Democratic and Independent senators who did not support legislation forcing the Obama administration to rewrite a Clean Water Act jurisdictional rulemaking should reconsider their votes, more than 50 agricultural, business and manufacturing groups said Nov. 10.
“As has been discussed with you at length over the past several months, [the Environmental Protection Agency] and the [U.S. Army] Corps [of Engineers] have proven unwilling to address the concerns you raise and that we share,” the letter regarding the legislation said. “We do not believe that EPA's final rule can be fixed without further legitimate and transparent rulemaking process.”
The 11 senators targeted—Independent Angus King (Maine) and Democrats Bill Nelson (Fla.), Tim Kaine (Va.), Mark Warner (Va.), Dianne Feinstein (Calif.), Brian Schatz (Hawaii), Chris Coons (Del.), Tom Carper (Del.), Jon Tester (Mont.), Michael Bennet (Colo.) and Amy Klobuchar (Minn.)—did not support the bill but instead sent a letter to the administration outlining concerns with the so-called waters of the U.S. regulation.
The Federal Water Quality Protection Act (S. 1140) would require the rule, which clarifies the jurisdiction of the Clean Water Act, to be rewritten.
Among the national groups included on the letter were the American Farm Bureau Federation, the American Petroleum Institute, the Associated Builders and Contractors, the National Association of Home Builders and U.S. Chamber of Commerce.
Senate Failed to Get to Bill
The Senate on Nov. 3 came three votes short of enabling debate to proceed on the Federal Water Quality Protection Act, which is sponsored by Sen. John Barrasso (R-Wyo.).
The 11 senators targeted in the letter did not support allowing debate on the bill to continue but instead sent a letter to the Obama administration warning their votes might change without proper assistance in implementing the waters jurisdiction rule.
“While we cannot currently support the Federal Water Quality Protection Act, we believe the EPA and Army Corps of Engineers can and must do better to address the legitimate issues that have been raised in regards to the implementation of this rule,” their letter said. “Should the EPA not provide this clarity or enforce this rule in a way that erodes traditional exemptions, we reserve the right to support efforts in the future to revise the rule.”
The Senate later passed a resolution (S.J. Res. 22) nullifying the regulation (RIN 2040–AF30) on a 53-44 vote, and the House is also expected to pass the measure. Both chambers, however, appear well short of the votes necessary to overcome a certain presidential veto (214 DEN A-20, 11/5/15).
‘Classic Washington Doublespeak.'
The industry groups, Barrasso and Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, said the senators were trying to have it both ways with their votes.
“Their letter is classic Washington doublespeak with the senators voting to support EPA and the Corps on the [waters of the U.S or WOTUS.] rule while trying to cover themselves with a letter asserting the contrary,” the U.S. Chamber said in a statement accompanying the letter. “However, the message they have sent with their vote is clear: They fully support EPA's and the Corps’ final WOTUS rule.”
Inhofe has floated the idea of tweaking the bill, bringing it up for a vote again and seeing if the pressure on the senators had any effect.
“By now, there should be a lot of activity in their home states,” Inhofe told reporters Nov. 10. “I can't imagine putting myself in the same position.”
“The support is so overwhelming and you've already declared a position, you got to vote that way,” Inhofe said.
An aide to Senate Majority Leader Mitch McConnell (R-Ky.) would not comment on whether the legislation might resurface for another vote.
In the meantime, Barrasso told reporters he would continue to “put [the bill] on anything,” including perhaps appropriations language where there has been significant support for a policy rider on the waters rule. He also encouraged his colleagues to reconsider their votes.
“They should've been with us in the beginning,” Barrasso said.
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