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ACC PM 11/24/2015

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) Chemical Sector Warns EPA's Nano Data Rule Unclear, Faces Lawsuit Risk
Nov 24, 2015 | InsideEPA
By Dave Reynolds

A chemical industry attorney says EPA would likely face lawsuits if it finalizes its proposed nanoscale materials data collection rule without further consulting with industry, arguing the agency's public record supporting the plan lacks information to address criticism raised in comments...
California Identifies Priorities for Prop 65
Nov 24, 2015 | Chemical Watch

California's Developmental and Reproductive Toxicant Identification Committee (Dartic) has set priorities for the development of hazard identification materials, for five substances (CW 27 October 2015).
Common Preservative In Personal Care Products Linked To Breast Cancer
Nov 24, 2015 | Environmental Working Group
By Paul Pestano

Low doses of chemical preservatives widely used in cosmetics, shampoos, skin lotions and other personal care products may be linked to breast cancer, according to a new study from researchers at the University of California, Berkeley.
US EPA's Self and Third-Party Certification Programmes Under Scrutiny
Nov 24, 2015 | Chemical Watch

The US EPA's Office of Inspector General (OIG) plans to investigate the agency's self- and third-party certification programmes.
US EPA to Fix Procedures on Public Pesticide Petitions
Nov 24, 2015 | Chemical Watch

The US EPA has proposed “corrective actions”, after its inspector general reported that the Office of Pesticide Program (OPP) does not have policies or procedures to “ensure transparency when managing public pesticide petitions”.
Vermont Approves Product-Specific Chemical Reporting Rule
Nov 24, 2015 | Chemical Watch
By Kelly Franklin

A Vermont legislative council has approved a rule that will require product-specific reporting, under the state's chemical disclosure programme for children's products, despite objection from industry groups (CW 22 September 2015).

Chemical Security News

CPUC Axes Power Plant Anti-Terrorism Funds
Nov 24, 2015 | E&E - Greenwire
By Jaxon Van Derbeken

California regulators cut funds meant for anti-terrorism protections at power plants amid a dispute with state lawmakers.

Transportation News

Feds Tell Railroads They Must Meet Deadlines for Live-Saving Technology
Nov 23, 2015 | Ashley Halsey III
By Washington Post

U.S. railroads that were granted a three-year delay to install a life-saving safety mechanism have been told by federal regulators that they will be held to a strict schedule to ensure that they get the job done.
FRA Administrator Makes it Clear That Railroads Need to Focus on PTC Plans, Says Report
Nov 24, 2015 | Logistics Management
By Jeff Berman

Even though an extension for railroadsto implement positive train control (PTC)by at least three years to December 31, 2018, is now intact, when it was enacted by Congress and subsequently signed into law by President Obama late last month...

Energy and Environment News

(ACC Mentioned) U.S. Law's Reach at Heart of Epic Cross-Border Cleanup Fight
Nov 24, 2015 | E&E - Greenwire
By Jeremy P. Jacobs

The latest phase of a decadelong lawsuit to recoup the cleanup costs of one of the nation's largest Superfund sites could have major implications for the pre-eminent U.S. law for stemming pollution from contaminated sites, industry and environmental lawyers say.
U.S. Must Be Candid About Hurdles Facing Obama Agenda -- AGs
Nov 24, 2015 | E&E - Greenwire
By Amanda Reilly

U.S. negotiators must make clear to the international community that the centerpiece of the Obama administration's domestic climate agenda is "unlikely to survive" court challenges, two attorneys general who are opposing the rule said.
House Panel Leaders Press for More Time, Coordination on Methane Regs
Nov 24, 2015 | PoliticoPro - Whiteboard
By Elana Schor

Two senior House Republicans today urged EPA and the Interior Department to further extend the public comment period for its proposed methane rules for the oil and gas sector and to more closely align their respective processes for reining in the greenhouse gas.
EPA Will Have to Look at Refineries' Eventually -- McCarthy
Nov 24, 2015 | E&E - Climatewire
By Jean Chemnick

U.S. EPA's continuing mandate to implement the Clean Air Act will continue to generate new greenhouse gas emissions reductions that will allow the United States to tighten its future international climate commitments no matter who is next in the White House, Administrator Gina McCarthy said.
Companies Push Ill.'s GOP Governor to Support Clean Energy
Nov 24, 2015 | E&E - Energywire
By Daniel Cusick

A coalition of Illinois business leaders is pressing Gov. Bruce Rauner (R) to back a state bill that would ratchet up renewable energy and efficiency standards. The leaders say it would drive economic growth and put the state on a path to comply with the federal Clean Power Plan.
US Agencies Look to Cut Greenhouse Gas Emissions
Nov 24, 2015 | The Hill - E2 Wire
By Devin Henry

The Obama administration is pushing federal agencies to cut their greenhouse gas (GHG) emissions by more than 40 percent by 2025.
Ports are the New Power Plants — At Least in Terms of Pollution
Nov 24, 2015 | Washington Post
By Lydia DePillis

On New Jersey’s map of diesel exhaust, most of the state is a peaceable blue, indicating a relatively low concentration of pollutants.
90 House Lawmakers Back WOTUS Riders in Spending Bill
Nov 24, 2015 | E&E - Greenwire
By Tiffany Stecker

Ninety lawmakers have signed a letter urging House leaders to include policy riders to block the Waters of the U.S. rule in the year-end omnibus spending bill.
Scientists Warn Congressional Probe Will Chill Research
Nov 24, 2015 | National Journal
By Jason Plautz

What’s the line between investigation and intimidation? When does oversight become an overreach?
Why Are So Many Americans Skeptical About Climate Change? A Study Offers a Surprising Answer
Nov 24, 2015 | Washington Post
By Joby Warrick

Climate change has long been a highly polarizing topic in the United States, with Americans lining up on opposite sides depending on their politics and worldview. Now a scientific study sheds new light on the role played by corporate money in creating that divide.

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) Chemical Sector Warns EPA's Nano Data Rule Unclear, Faces Lawsuit Risk

Nov 24, 2015 | InsideEPA

By Dave Reynolds

A chemical industry attorney says EPA would likely face lawsuits if it finalizes its proposed nanoscale materials data collection rule without further consulting with industry, arguing the agency's public record supporting the plan lacks information to address criticism raised in comments -- though an environmentalist says further delay is unnecessary.
"What the agency really needs is additional input and additional content" to clarify its proposal and improve the rule, the industry source says, adding that companies should have a chance to comment on possible solutions before they appear in a final rule.
If EPA were to finalize its proposal without further dialogue with industry, "in all likelihood it would be challenged," the source says.
The call for EPA to seek further input on its proposed Toxic Substances Control Act (TSCA) section 8(a) nano reporting rule, comes after agency officials recently declined industry's call to withdraw and re-propose the entire plan, but advocates are calling for EPA to finalize the long-stalled rule and begin collecting data.
EPA's April 6 proposal came after years of wrangling with the nano industry and White House officials over the scope of the rule. The agency says data collected under the rule will guide its future policies on nanomaterials, including potential regulation of some substances found to pose risks to human health or the environment.
Soon after EPA issued the proposal, the industry coalition sAmerican Chemistry Council (ACC) in a June public meeting urged the agency to withdraw and re-propose the plan, arguing it lacks clarity and scientific backing.
EPA officials told the Society of Chemical Manufacturers and Affiliates (SOCMA) during an Oct. 6 meeting at the group's Washington, D.C., office that the agency would not withdraw and re-propose the rule.
But in a recap of the meeting on its website, SOCMA says, "[T]he agency is working to refine it and make it clearer," and that "EPA also seemed receptive to SOCMA's concerns."
SOCMA argued in comments last summer that EPA should base reporting requirements on a substance's potential hazard rather than on physical factors and clarify terms, such as "trace" amounts by setting a mass-based threshold, among other recommendations.
The U.S. Small Business Administration's Office of Advocacy also has urged EPA to reconsider major aspects of the proposal, faulting its economic analysis and urging the agency to broaden a proposed small business exemption, as well as calling for guidance to clarify aspects of the rule.
Data Collection
Although EPA has said in the Unified Agenda it intends to finalize the data collection rule in June, both the industry source and an environmentalist say they intend to seek meetings with the agency on its proposal. Advocates also say the rule would face further delays if not issued before President Obama leaves office.
EPA's April 6 proposal would require a one-time data submission to EPA six months after issuance of the final rule, and the agency is also proposing that companies that intend to manufacture reportable substances after the rule takes effect would have to report to EPA at least 135 days before commencing manufacturing.
EPA and other federal agencies have long struggled with how to assess and regulate nanomaterials since their unique, technology-advancing properties may also present health and safety risks.
Agency staff told a June 11 public meeting that the proposed collection effort focuses on nanoscale materials derived from existing substances already on the TSCA inventory, as agency officials believe EPA review processes for new chemicals are effective at ensuring substances do not pose health and safety risks.
The industry source tells Inside EPA that while EPA appears likely to decline to re-propose the entire plan, the agency should consult with industry, possibly by seeking comment on a narrower set of issues, to clarify aspects of the plan for which the agency's public docket lacks adequate information to address criticism raised in comments.
"EPA has set out a starting place for what it thought might be the right criteria, but the comments EPA has received are that the [reporting] criteria are not well defined," the source says. "Having put out this initial proposal, the overall rule would benefit from a re-opening of the dialogue on some of these topics."
Issues that EPA needs further information to address in a final rule include clarifying requirements for identifying substances for reporting, defining the criteria that the substance have "unique and novel" characteristics or properties as a result of their size, and providing the criteria the agency used to exclude certain substances from reporting under its proposal.
Exclusion Criteria
Since EPA did not clarify the exclusion criteria in its proposal, the source says, companies did not have adequate opportunity to argue in comments that materials they use might also merit exclusion. Another issue, the source says, is that EPA has not provided adequate justification for why the 135-day notification period is necessary.
EPA could address those problems by seeking additional public comment, possibly through a supplemental notice.
A source with the International Center for Technology Assessment (ICTA), which supports public disclosure of all health and safety data before products are put on the market, said environmentalists also intend to seek meetings with EPA on the proposal.
The ICTA source says the call for a supplemental proposal is the latest in long-standing industry effort to delay the rule, possibly until after the end of the Obama administration, when it would face further reviews under a new administration. Even if not perfect, EPA should promptly finalize the rule and begin collecting data, the source says.
Noting industry's argument that the proposal's "unique and novel" criteria is unclear, the ICTA source says companies regularly describe their products' unique or novel properties when seeking patents.
"They go to their investors and say, 'It's unique and novel,' and then they go to EPA and say, 'No, it's not,'" the source says. "The industry basically doesn't want any new reporting requirements.

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California Identifies Priorities for Prop 65

Nov 24, 2015 | Chemical Watch

California's Developmental and Reproductive Toxicant Identification Committee (Dartic) has set priorities for the development of hazard identification materials, for five substances (CW 27 October 2015).
Dartic, which advises the state's Office of Environmental Health Hazard Assessment (Oehha) on determining reproductive toxicity of substances for listing under Proposition 65, met on 9 November and established the following prioritisations:nickel and nickel compounds – medium/low;pentachlorophenol (PCP) – medium/high;tetrachloroethylene (TCE) – medium/high;perfluorooctanoic acid (PFOA) – high; andperfluorooctane sulfonate (PFOS) – high.
The preparation of hazard identification materials can serve as a precursor to a substance being listed on Prop 65 as a reproductive or developmental toxicant.
The committee also considered whether to maintain the listed status of methyl-n-butyl ketone as a reproductive toxicant, following changes to the Osha regulation on which this had been based (CW 28 August 2015).
The committee unanimously agreed that the substance should remain on the Prop 65 list, and voted 6-2 to add the developmental toxicity endpoint to its listing. It also voted unanimously to list 2,5-hexanedion – a metabolite of methyl-n-butyl ketone – as a reproductive toxicant.
Dartic asked that the following substances be considered as candidates for listing, at a future meeting:polybrominated diphenyl ethers (PBDEs);perchlorate;chlorpyrifos; andn-hexane.

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Common Preservative In Personal Care Products Linked To Breast Cancer

Nov 24, 2015 | Environmental Working Group

By Paul Pestano

Low doses of chemical preservatives widely used in cosmetics, shampoos, skin lotions and other personal care products may be linked to breast cancer, according to a new study from researchers at the University of California, Berkeley.
The preservatives are parabens, found in more than a fifth of the products inEWG’s Skin Deep® Cosmetics Database. It's been known for more than a decade that parabens, which mimic the hormone estrogen, can disrupt lab animals' endocrine systems, but some scientists argue the concentrations in people are too low to worry about.
Now the UC Berkeley study, published online Oct. 27 in Environmental Health Perspectives, argues that previous research only looked at parabens' effects in isolation. The study shows that when parabens interact with other biochemical changes in breast cancer cells, the effect is much stronger and could lead to faster, more aggressive growth of tumors and formation of malignant cancer.
According to cancer scientists, two-thirds of breast cancer tumors have a cell receptor called estrogen receptor alpha. When estrogen interacts with this receptor, it activates genes that turn normal cells into tumor cells. Earlier studies showed that parabens can have a similar effect on this receptor, but the concentration of parabens needed to activate the genes was much higher than what was found in the human body.
Berkeley researchers examined the effect of low concentrations of so-called long-chain parabens when paired with the effects of naturally occurring molecules in the body on another type of receptors, called HER. Even at low doses, a type of paraben called butylparaben worked in conjunction with activation of the HER receptor to switch on cancer genes. Researchers surmise that HER receptors increase the potency of butylparaben, making low doses more dangerous.
A growing body of research finds evidence that preservatives commonly found in personal care products can harm health. Companies are allowed to use these risky ingredients because of the weak and outdated regulations governing the cosmetics industry.
Earlier this year, Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine)introduced the Personal Care Products Safety Act that would give the Food and Drug Administration more oversight in cosmetics ingredient safety. The bill would require the FDA to review five potentially risky ingredients annually, and give it the authority to ban or restrict ingredients based on these assessments. One of the first ingredients on the list is propylparaben, a relative of butylparaben.
In the meantime, consumers should avoid long-chain parabens – butylparaben, propylparaben, isopropylparaben and isobutylparaben – by reading product labels and using EWG’s Skin Deep® to find products with safer ingredients.

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US EPA's Self and Third-Party Certification Programmes Under Scrutiny

Nov 24, 2015 | Chemical Watch

The US EPA's Office of Inspector General (OIG) plans to investigate the agency's self- and third-party certification programmes.
“Past OIG work has disclosed vulnerabilities and risk of fraud,” Carolyn Copper, assistant inspector general, wrote to agency officials, including those at the Office of Chemical Safety and Pollution Prevention.
The aim of the research is to survey EPA headquarters programme offices to obtain an inventory of self-certification and third-party programmes and functions, the letter says. Such an inventory would support the OIG's “focus on high-risk agency issues”.
The voluntary Safer Choice programme [previously know as Design for the Environment (DfE)] is among those that rely on third-party certifications.

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US EPA to Fix Procedures on Public Pesticide Petitions

Nov 24, 2015 | Chemical Watch

The US EPA has proposed “corrective actions”, after its inspector general reported that the Office of Pesticide Program (OPP) does not have policies or procedures to “ensure transparency when managing public pesticide petitions”.
The agency regulates pesticides and antimicrobials under the Federal Insecticide, Fungicide and Rodenticide Act and the Federal Food, Drug and Cosmetic Act. The public can submit petitions to the OPP for rulemaking, to modify or revoke pesticide tolerance, to cancel a pesticide registration or to seek a specific action on policy, guidance or agency process.
Because of the lack of transparency and direct communication, some petitioners in the past had sued the EPA for “unreasonable delay, resulting in unnecessary costs to the agency and public”, the inspector general said in a report.
The report said the OPP did not effectively communicate with petitioners, in the following areas:acknowledging petition receipt;providing updates about the work to resolve petitions; andproviding petition decisions.
The report also found, among other things, that:petition documentation was not readily accessible;some petition data was inaccurate, which resulted in the duplication of work to confirm it; andthe OPP does not provide guidance to the public on how to submit complete petitions.
The inspector general recommended that the assistant administrator for chemical safety and pollution prevention:develop policies and procedures to manage public petitions in a transparent, effective and efficient manner;communicate directly with petitioners;train staff to adhere to the records management policy; andimplement an effective tracking system for public petitions.
The agency agreed with the recommendation, and proposed to correct the deficiencies over the next two years.

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Vermont Approves Product-Specific Chemical Reporting Rule

Nov 24, 2015 | Chemical Watch

By Kelly Franklin

A Vermont legislative council has approved a rule that will require product-specific reporting, under the state's chemical disclosure programme for children's products, despite objection from industry groups (CW 22 September 2015).
The rule, developed by the Vermont Department of Health (DoH) and approved by the Legislative Committee on Administrative Rules (LCAR), is expected to take effect in early December.
It stipulates that manufacturers of children's products, containing any of 66 chemicals of high concern to children, report by 1 July 2016 their presence in products, identified by brand name and product model.
Falko Schilling, consumer and environmental advocate at the NGO Vermont Public Interest Research Group (VPIRG), said that the rule's passage is a “big win for Vermonters and consumers”.
The DoH did a “great job” adhering to the intent of the legislation – Act 188, which authorised the chemical reporting programme – and the rule will “allow consumers to make informed decisions about the products they're purchasing”, he added (CW 14 May 2014).
Several other states' chemical reporting rules, such as those in effect in Washington, have only product category information, and included a multi-year phase-in schedule (CW 6 November 2015).
A coalition of twenty-five industry groups called on the LCAR to reject the proposed rule, expressing such concerns as product-level reporting being “unduly burdensome”, and the lack of a phased-in reporting schedule, providing too short a timeframe for testing and reporting, especially for SMEs.
In responding to comments, the DoH said that the disclosure and publication of product names, containing chemicals of high concern, was called for by statute, and “is perhaps the most usable piece of information to the consuming public; its disclosure should not be left to the discretion of the manufacturer.”
Regarding the rule's lack of a phase-in schedule, the DoH said that staff from Washington state have reported that the schedule, used in their state's chemical disclosure programme, has “created confusion with both manufacturers and consumers”. With all manufacturers sharing a single reporting deadline in Vermont, the “consumer will not be confused as to whether a product does not contain a chemical of concern or whether it has not yet been reported,” it added.
William Driscoll, vice president of the Associated Industries of Vermont (AIV), said that not only is the volume of data required by the law “excessive”, but it is “extremely unreasonable” to require manufacturers to complete testing and reporting in “basically six months”, especially for small and sole proprietor operations.
The AIV “is certainly concerned about the unwarranted costs for manufacturers” created by the rule, he added.
According to written testimony provided by the Toy Industry Association (TIA), the rule could result in “up to millions” of reports, and industry groups have questioned whether the DoH will be equipped to manage the high volume expected under the rule, or if consumers will see their benefit.
“Frankly it remains to be seen if the department can actually handle what they have required,” added Mr Driscoll.
However, according to Mr Schilling, the industry objections are “just not true”. Manufacturers should already be testing their products for the Washington state law, he said, and the rule satisfies the legislative intent behind Act 188: to tell consumers what specific products contain substances of potential concern.
The DoH said that it is drafting guidance documents for complying with the rule, which will be available by 1 January 2016.

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Chemical Security News

CPUC Axes Power Plant Anti-Terrorism Funds

Nov 24, 2015 | E&E - Greenwire

By Jaxon Van Derbeken

California regulators cut funds meant for anti-terrorism protections at power plants amid a dispute with state lawmakers.
State lawmakers cut $5 million from the California Public Utilities Commission's budget earlier this year after a dispute over whether the commission should have hired outside counsel during a federal and state probe of the agency's dealings with Pacific Gas and Electric Co. Lawmakers made the cut to revoke $5 million the agency had spent on the outside legal advice.
Because the state Legislature did not specify how the cut should be implemented, CPUC took it in part from funds budgeted to implement a new state law to protect power plants from terrorist attacks.
That bill, which state Sen. Jerry Hill (D) introduced in 2014, was prompted by a 2013 attack on a PG&E substation near San Jose that knocked out 17 transformers and caused power outages. Gov. Jerry Brown (D) signed the bill into law last year.
After CPUC cut $350,000 from its budget to implement the new law, it won't be able to pay staff to review utilities' security plans.
CPUC Executive Director Timothy Sullivan said the involvement of other federal and state agencies means the cut "doesn't really compromise safety the way that cuts in other programs would."
Hill called the decision "unbelievable" (Jaxon Van Derbeken, San Francisco Chronicle, Nov. 23).

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Transportation News

Feds Tell Railroads They Must Meet Deadlines for Live-Saving Technology

Nov 23, 2015 | Ashley Halsey III

By Washington Post

U.S. railroads that were granted a three-year delay to install a life-saving safety mechanism have been told by federal regulators that they will be held to a strict schedule to ensure that they get the job done.
The device — positive train control — has been called “arguably the single-most important rail safety development in more than a century” by federal regulators.
Safety experts say PTC could have prevented the deaths of eight people in a Philadelphia Amtrak derailment this year, and those of 288 other passengers and train crew members since 1969.
They consider implementation of PTC more important than ever since trains carrying volatile natural gas or oil have derailed nine times so far this year, and they fear one could cause catastrophic explosions as it passes through a city.
With the boom in domestic oil production, the number of rail tank cars carrying flammable material in the United States has grown from 9,500 seven years ago to 493,126 last year.
The railroads, most of which had fallen far behind schedule in meeting a Dec. 31 deadline for installation of PTC, petitioned Congress for relief and were given a three-year extension. Congress, whose members have received more than $24 million in campaign contributions from the powerful railroad industry since 2008, also said railroads could ask for up to two additional years after the 2018 deadline to complete the job.
But the legislation that granted the extension came with teeth, and Federal Railroad Administrator Sarah Feinberg has served notice that she intends to use them.
“The focus has to remain on getting PTC up and running and implemented as soon as possible,” she said in a speech to a railroad conference last week. “I recognize that the legislation allows 2018 to be the goal and there to be a potential extension beyond 2018 to 2020. But the deadline is 2018. If you need to get to 2020, there are certain boxes that have to be checked in order to get there.”
Warning against expecting another deadline extension, Feinberg sent a letter to the railroads outlining the “boxes” that must be checked in the coming months and years.
She said each railroad must submit a detailed plan before the end of January for PTC implementation, with justifications for the pace at which the railroad intends to proceed, and annual reports thereafter.
Feinberg wrote that extensions beyond the 2018 deadline would be considered only if a railroad had demonstrated a good-faith effort to comply with the mandate.
“What Feinberg was saying in her letter was ‘Don’t even send me a plan that says [you will complete installation by] 2020,’ ” said an FRA official who spoke on condition of anonymity in order to comment candidly. “Her main concern right now is that people are focused on 2020 and they’re not focused on 2018. She’s telling them, ‘If you happen to get to 2018 and you have met these criteria and benchmarks to be eligible [for an extension to 2020], then we’ll talk about it at that point.’ ”
It was the fear that the FRA might impose hundreds of millions of dollars in fines that sent the railroads to Congress seeking a reprieve from the Dec. 31 deadline that Congress established seven years ago.
The railroads long had argued that PTC technology was too complex to allow them to meet the December deadline and that the $14.7 billion cost to equip freight and commuter lines was prohibitive. They said they have devoted time, energy and billions of dollars for the installation of the systems and are firmly committed to proceeding as swiftly as possible.
But while some major railroads, notably the giant BNSF Railway and commuter rail lines such as Philadelphia’s SEPTA system, made substantial progress, others appeared to make minimal efforts to meet the deadline. Critics suggested that they were counting on a sympathetic Congress to extend the 2015 deadline.
In a Nov. 5 talk to the Railroad Safety Advisory Committee, Feinberg made clear that her agency would continue to press the railroads about PTC implementation.
“I know there were probably more than a few sighs of relief from the folks in this room last week when Congress passed the PTC extension,” Feinberg said. “The Amtrak accident in Philadelphia remains a stark reminder of both what can happen without PTC, and the sense of urgency required to prevent a similar accident in the future.”
Feinberg had been acting FRA administrator since January.
“Since she’s been here there’s been a different tone and posture on PTC,” said the FRA official who spoke on the condition of anonymity.
In what was seen as a message to the railroads, the Senate approved Feinberg’s nomination at the same time it passed the PTC extension.
“Over the last year, I am sure you have observed that FRA is in a much more aggressive posture on PTC,” Feinberg said in addressing the safety advisory committee, “and everyone should expect for that posture to continue.”

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FRA Administrator Makes it Clear That Railroads Need to Focus on PTC Plans, Says Report

Nov 24, 2015 | Logistics Management

By Jeff Berman

Even though an extension for railroadsto implement positive train control (PTC)by at least three years to December 31, 2018, is now intact, when it was enacted by Congress and subsequently signed into law by President Obama late last month, a Reuters report indicated that does not mean by any stretch that the federal government will take its foot off the gas pedal, when it comes to ensuring that railroads have their PTC plans in place.
As previously reported, the objective of PTC systems is to prevent train-to-train collisions, overspeed derailments, and incursions into roadway work limits. PTC sends and receives a continuous stream of data transmitted by wireless signals about the location, speed, and direction of trains, according to the Federal Railroad Administration (FRA). PTC systems, added the FRA, utilize advanced technologies including digital radio links, global positioning systems and wayside computer control systems that aid dispatchers and train crews in safely managing train movements.
A mandate for PTC systems was included in House and Senate legislation- The Rail Safety and Improvement Act of 2008. The legislation was passed after a September 12, 2008 collision between a freight train and a commuter train in Los Angeles. PTC has received renewed attention, following a tragic Amrtak accident in the Philadelphia area earlier this year. As per the mandate, the December 31, 2015 deadline required freight railroads to install Positive Train Control (PTC) technology on 40 percent of its network.
The report cited a letter to railroads by Federal Railroad Administrator Sarah Feinberg, which said that the U.S. government will “aggressively enforce” the new 2018 PTC deadline. If railroads are not PTC-ready by 2018, they are eligible for a waiver for two more years.
According to the report, Feinberg wrote that rail operators could face a daily civil penalty of at least $5,000 if they don’t submit a PTC implementation plan by January 27, adding that “FRA intends to aggressively enforce the deadlines and requirements.”
These plans submitted by the railroads, they will include information on intended schedules to implement the technology and demonstrate how rail operators will meet milestones, with a regulator having 90 days to approve or disapprove each plan, said Reuters. And plans that do not get regulatory approval would then receive another 30 days to file a revised plan.
In the weeks leading up to the PTC extension being announced, various railroad stakeholders made it clear that rail service shutdowns could be looming if an extension was not granted.
And the AAR said in September that the lack of an extension would have far-reaching impacts on the nation’s freight and passenger rail industries, their customers and the American economy and they have indicated without the certainty of a PTC extension in the very near future, preparatory actions were beginning to suspend service by December 31.
At last week’s RailTrends conference in New York hosted by Progressive Railroading magazine and independent railroad analyst Tony Hatch, FRA’s Feinberg said that PTC is one of the most—if not the most—significant advance in technology in the rail industry during the last 100 years.
“That’s why FRA has been advocating for—and that railroads have been working to implement—Positive Train Control,” she said. “I appreciate the work that the rail industry has done to implement this technology and we remain your partner in implementation. I would not make the extension the primary focus. The focus has to remain on getting PTC up and running and implemented as soon as possible.”
She added that 2018 is and remains the goal, adding that for those railroads that need to get to 2020, there are certain boxes that need to be checked in order to get there, but that came with the edict not to aim for 2020 and assume Congress will “give in” and offer up another extension.
AAR Chairman and CEO Ed Hamberger said at RailTrends that the industry’s push for the extension represents a focus on safety, with PTC needing to be rolled out as fast as possible, with the rail sector running as fast as possible to get that done.
“The industry will have spent $6 billion in private capital on PTC by the end of this year, and it will be 100 percent installed with all of the hardware in the ground and on locomotives by 2018. It will be over 50 percent up and running by that time. We are committed to getting it done….and start getting the safety benefits and also to the extent that there are business benefits and start reaping them. We will get this done.”
Hamberger also made it clear that getting the PTC extension was vital in that it underscored the emphasis of exactly what the railroad sector means to the economy, echoing Feinberg’s comments of that for the country to move forward economically railroads need to be there.
And had the extension had not been passed by November 1, freight and commuter rail would have had to cease operations, he said, with the potential for an economic ripple effect, coupled with that 1.7 million Americans that take daily commuter trains would have had to go back out on highways to get to work.

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Energy and Environment News

(ACC Mentioned) U.S. Law's Reach at Heart of Epic Cross-Border Cleanup Fight

Nov 24, 2015 | E&E - Greenwire

By Jeremy P. Jacobs

The latest phase of a decadelong lawsuit to recoup the cleanup costs of one of the nation's largest Superfund sites could have major implications for the pre-eminent U.S. law for stemming pollution from contaminated sites, industry and environmental lawyers say.
At issue is whether a source of air pollution can be held liable when emissions fall on a Superfund site -- even if they drifted for miles and across the Canadian border.
A federal district court judge in Washington state ruled in December that Superfund's liability scheme was meant to include such emissions. The judge held that Teck Metals Ltd. may be responsible for the costs to clean up contamination caused by air emissions from its smelter in British Columbia that landed on an enormous Superfund site near the Grand Coulee Dam in northeast Washington.
The ruling could put Teck Metals on the hook for millions of dollars in additional cleanup costs. The company has appealed to the 9th U.S. Circuit Court of Appeals and has gained the support of the U.S. Chamber of Commerce and industry groups that say the precedent could expose any emitter to "massive liability."
Canada has also intervened, claiming the ruling violates its sovereign authority by penalizing the company for emissions that occurred on Canadian soil. The country also claims it threatens diplomatic relations with the United States established by a 1935 agreement.
But environmentalists see something more nefarious in Teck Metals' appeal. They contend that instead of expanding the law's reach, the ruling maintains the status quo on air emissions that can be proved to directly contaminate land and water.
Teck Metals -- and the U.S. Chamber and other major trade groups -- the greens say, are trying to chip away at the scope of liability in the Superfund statute, one of the most expansive in American law.
"The effort by the mining industry and the chamber is describing it as a threat or some new change in the law," said David Mears, a Vermont Law School professor who formerly worked on the case for the Washington state attorney general. "If they were to prevail, it would be rolling back existing law."
Map by Michael Abate.
Teck Metals' pollution, and the early phases of the litigation stemming from it, have been prime material for environmental law textbooks.
The mining giant -- which until 2008 was known as Teck Cominco -- has operated the world's largest lead-zinc smelting operation in Trail, British Columbia, since 1906. About 10 miles north of the U.S.-Canada border on the Columbia River, the smelter has historically released pollutants by discharging slag and wastewater into the river and emitting lead, cadmium, mercury and zinc particles through its smokestacks.
It caused a massive area of contaminated soils and water downstream on the Columbia River, which became the subject of diplomatic negotiations between Canada and the United States that began more than 50 years ago.
U.S. EPA in 2003 ordered the metals giant to investigate and remediate the area, and the site became known as the Upper Columbia River Superfund site. Negotiations, however, remained at the State Department.
Progress stalled.
"Nothing was happening," Mears said.
In 2004, tribes sued seeking to recover the millions of dollars it would cost to clean up the contamination. The state soon joined the case.
The company sought to dismiss the lawsuit, claiming Washington and the tribes were trying to extend the reach of the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, beyond the country's border.
That phase of the case, which was limited to the question of water pollution, was closely watched by environmental lawyers as defining the scope of CERCLA's liability scheme.
The smelter lost. The San Francisco-based 9th Circuit ruled the hazardous substances were technically leached or disposed of in the United States. Therefore, CERCLA applied and Teck Metals was liable. The company appealed to the Supreme Court, which declined to review the case. Teck Metals has spent several million dollars cleaning up existing pollution and installing new control measures.
In 2010, Washington and the tribes sought another avenue to recover funds from Teck Metals: its air emissions. They amended their lawsuit, claiming that under CERCLA the company was liable as an "arranger" for disposal of air pollutants from its smelter that drifted into Washington and landed in the Superfund site.
Last December, Judge Lonny Suko for the Eastern District of Washington agreed. He acknowledged that in the more than 30 years since CERCLA was enacted in 1980, no court has expressly addressed the issue of air emissions qualifying as "disposal" for liability purposes.
"Instead, it appears to have been treated as a given that if hazardous substances from aerial emissions are 'disposed' of 'into or on any land or water,'" he wrote, "response costs and natural resource damages can be recovered for cleaning up those hazardous substances and compensating for harm caused."Industry concerns
Teck Metals believes it caught a break in August, however, when the 9th Circuit issued a ruling in a case that the company believes raises a similar issue.
In Center for Community Action and Environmental Justice v. BNSF Railway Co., the appeals court rejected a request by environmentalists to force the rail companies to reduce their diesel exhaust emissions at rail yards in California.
The environmentalists used a novel tack in attempting to curb the air emissions: trying to tap the Resource Conservation and Recovery Act, or RCRA, a law that is primarily aimed as accounting for the proper management and disposal of hazardous waste.
In siding with BNSF, the 9th Circuit unanimously ruled that the company was not "dispos[ing]" the diesel particles when they were released into the air because "emitting" wasn't included in the definition of "disposal" in RCRA. Therefore, the environmentalists could not go forward with their case.
Teck Metals contends that same principle applies to its air emissions. And they point to the text of CERCLA, which lifted the definition of "disposal" directly from RCRA -- the law at issue in the BNSF case.
When Congress enacted CERCLA, Teck Metals wrote in court documents, it discussed disposal by "expressly incorporating the definition of that term in RCRA."
Teck Metals further argues that the BNSF ruling means disposal "requires that waste be first placed into or on land or water" -- not, as Washington state and the tribes contend -- into the air.
The company is asking the 9th Circuit to reverse the lower-court judge's ruling in light of the BNSF ruling. The 9th Circuit has yet to schedule oral arguments in the case, Pakootas v. Teck Cominco Metals Ltd.
Teck Metals now has some heavy hitters in its corner.
Canada, for example, says the lower-court ruling infringes on diplomatic relations with the United States. Specifically, it points to a 1935 Ottawa Convention that addressed sulfur dioxide air emissions from the Teck Metals smelter that crossed the border, but not the specific pollutants at issue in the current case. That convention, Canada says, established a bilateral process for negotiations between the United States and Canada.
The lower-court decisions "subjecting the Trail Smelter to liability for air emissions under CERCLA clearly impinge on Canada's sovereignty," Canada wrote in court documents. "The orders undermine the long history of cooperations between the United States and Canada in controlling transboundary pollution."
The Chamber of Commerce, American Chemistry Council and National Association of Manufacturers have similarly backed Teck Metals' appeal.
They argue that their members work to ensure air emissions comply with the Clean Air Act and other local regulations. The district court ruling, they say, could subject them to new liability and lawsuits under a new law -- CERCLA -- for emissions that drift miles away.
"Depending on the type of emission and the meteorological conditions, some of these regulated emissions can travel hundreds of miles before touching ground," they wrote. "Operators have no control over where these emissions will land."
They contend that the ruling would lead to an unprecedented expansion of liability under CERCLA. And their members, they conclude, would be prime targets because they would be financially capable of contributing to costly cleanups.
"And because the original polluters often have exhausted their financial resources long before a cleanup is paid for, plaintiffs searching for a new deep pocket will have every incentive to use the District Court's reasoning aggressively," they wrote, adding that their members could be left "with the entire cleanup bill, even if their actions are not subject to any liability under the [Clean Air Act] framework for regulating air emissions."'Big impact'
Washington, the tribes and EPA -- as well as several uninvolved attorneys -- take issue with the doomsday scenario laid out by the industry groups and others.
Teck Metals' argument that hazardous substances that travel through the air any distance before contaminating land are outside the meaning of "disposal" under CERCLA "creates a new requirement that is unsupported by the statutory text, extremely narrow, and would severely undermine Congress' objectives," EPA said.
"No CERCLA case has ever adopted Teck's interpretation," the agency said.
EPA and Washington also sought to distinguish the BNSF case from Teck Metals' air emissions.
The BNSF case, the state wrote, was about blocking future emissions of pollutants -- not holding BNSF liable for particles that were already released and have contaminated land and water.
"Under CERCLA," it wrote, "a 'disposal' requires that hazardous substances be discharged, deposited, injected, dumped, spilled, leaked or placed 'into or on any land or water.' ... That is exactly what occurred here."
Washington argues that Teck Metals' reading of the BNSF ruling would create a huge loophole in CERCLA liability.
And that may be the motivation for the lawsuit, said Justin Pidot, a former environmental attorney at the Justice Department who is now a professor at the University of Denver's Sturm College of Law.
EPA has historically had a lot of leverage in negotiating settlements and liability, he said.
"That's the way the statute was created, and that's the way Congress intended it," he said. "And industry groups have always hated it."
There has been an effort to undercut that liability scheme in the court. In 2008, for example, the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. United States ruled 8-1 that Shell Oil Co. wasn't liable for pollution at a Superfund site in Arvin, Calif., where large amounts of pesticides leaked and spilled.
Shell sold the chemicals and was aware of the releases. The 9th Circuit, consequently, held that it could be held liable for 6 percent of the cleanup costs.
The Supreme Court reversed that decision. The high court held that Shell was not an "arranger" of the disposal of the chemicals that caused the contamination because it didn't directly intend for the spills to occur.
Mears, the Vermont Law School professor, said the scenario described by the chamber and others wasn't realistic.
Linking an emitter of air pollution miles away to contamination on the ground in a Superfund site is incredibly difficult, he said. Only in instances where there is a direct and easily established connection -- such as the Teck Metals site -- has EPA considered assigning air pollution liability. There is one such site in Tacoma, Wash., where Asarco Co. operated a smelter that spewed lead and arsenic nearby.
"When you look at the history of the statute," he said, "nothing suggests that they are going after mild levels of contamination that are diffuse from many different sources. The parade of horribles just doesn't seem tenable to me."
If the lower-court ruling stands, however, it may lead to at least one other type of expense for emitters: litigation.
"A big concern, practically speaking, is that CERCLA litigation can be very time-consuming and expensive," said Zachary Kearns, an environmental attorney at Marten Law in Portland, Ore. "If the court opens the door to liability for air emissions, if you're an air emitter you'll likely be forced to defend yourself more often than you would have otherwise. And that's a big impact in and of itself."

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U.S. Must Be Candid About Hurdles Facing Obama Agenda -- AGs

Nov 24, 2015 | E&E - Greenwire

By Amanda Reilly

U.S. negotiators must make clear to the international community that the centerpiece of the Obama administration's domestic climate agenda is "unlikely to survive" court challenges, two attorneys general who are opposing the rule said.
In a letter to Secretary of State John Kerry, West Virginia Attorney General Patrick Morrisey (R) and Texas Attorney General Ken Paxton (R) said they expected their many legal arguments against the Clean Power Plan -- including that it gives U.S. EPA too much authority over the nation's energy policy -- to win in court.
"We believe you have a duty to acknowledge to negotiating nations at Paris 2015 that the centerpiece of the President's domestic CO2 reduction program is being challenged by a majority of States and will likely be struck down," Morrisey and Paxton wrote in the letter dated yesterday.
Today, 622 state and local Democratic officials from 32 states also sent a letter to President Obama supporting the United States' taking a leadership role in the upcoming negotiations but expressing concerns about the administration's carbon rules for power plants.
Obama is scheduled to travel to Paris for the U.N. climate change negotiations on Monday. Ahead of the talks, the administration has pledged to reduce U.S. greenhouse gas emissions 26 to 28 percent by 2025 compared to 2005 levels.
At the talks, U.S. officials are expected to lean heavily on the Clean Power Plan, EPA's rule that requires states to write and put in place plans to reduce carbon dioxide emissions at existing power plants, to show the U.S. commitment to addressing climate change.
The rule is under fire in both the courts and Congress. Twenty-seven states, including West Virginia and Texas, have challenged the rule, while 18 states are backing it in the U.S. Court of Appeals for the District of Columbia Circuit.
Last week, the Senate voted to pass two resolutions through the Congressional Review Act that would block the Clean Power Plan and EPA's carbon rule for new power plants. House members are expected to take up the resolutions, through the White House has promised to veto both.
Pointing to their court challenge and the broader opposition, Morrisey and Paxton wrote to Kerry that the Clean Power Plan has been "under withering scrutiny from both Republicans and Democrats since it was proposed."
"The President's representations regarding his Administration's CO2 emission reduction plans are based on unilateral executive action that is unlikely to be the law for very long," they wrote.
Outlining their main legal arguments against the rule, the attorneys general argued that it gives EPA wide-reaching economic power, that the Clean Air Act prohibits EPA from issuing the rule and that it infringes on states' rights.
The 622 Democrats today charged that the Obama administration's carbon rules ignore the fact that fossil fuels will remain an essential source of energy for the world "for decades to come." They said Obama is attempting to "wish" away carbon dioxide emissions from the coal sector rather than focusing on managing them through the deployment of carbon-mitigating technologies.
"If we are going to provide real leadership in the world community on climate, we cannot begin by implementing policies that have no hope of succeeding outside of the United States, or possibly even within the United States," the Democrats wrote. "The EPA, while well intentioned, has lost sight of the importance of preserving affordable and reliable energy in its pursuit of clean energy."
The Democrats are aligned under the CoalBlue Project, chaired by former Rep. Zack Space (D-Ohio).
State challengers to the Clean Power Plan have asked the court to immediately halt the rule, arguing that they are being "immediately and irreparably harmed" by its requirements. EPA's supporters say the rule is a necessary step to tackling climate change.
The court is expected to decide whether to grant the request for a stay early next year -- after the Paris negotiations conclude.
Administration attorneys are confident they will prevail in the lawsuit, which is expected to be ultimately decided by the Supreme Court (Greenwire, Oct. 29).
Morrisey and Paxton also called on U.S. officials to submit whatever agreement comes out of the Paris talks to the Senate for approval, echoing requests by opponents of the Obama administration's climate change agenda in the upper chamber.
While the Senate is responsible for giving advice and consent on binding international treaties, a nonbinding agreement would not require approval. The administration has said the Paris deal would be politically, not legally, binding, obviating the need for Senate approval.
Senators and House members have warned that they won't make money available for the Green Climate Fund, which is meant to assist developing countries in mitigating and adapting to climate change, if Congress is not allowed a say in the final Paris agreement.
Rep. Morgan Griffith (R-Va.) yesterday announced he is leading 110 Republican members of the House in expressing opposition to the Obama administration's pledge to commit $3 billion to the fund.
In a letter to House Appropriations Chairman Hal Rogers (R-Ky.) and ranking member Nita Lowey (D-N.Y.), the Republican coalition said that Americans have already spent "tens of billions of dollars on climate change" and that "serious budget constraints" prevented more money from going toward the GCF.
"This request from the President appears to be just the beginning of a commitment to the United Nations that could dwarf previous such climate commitments made by the United States government," the Republican members wrote in the letter dated Friday.
Thirty-seven Republican senators last week sent a similar message to Obama (E&E Daily, Nov. 20).

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House Panel Leaders Press for More Time, Coordination on Methane Regs

Nov 24, 2015 | PoliticoPro - Whiteboard

By Elana Schor

Two senior House Republicans today urged EPA and the Interior Department to further extend the public comment period for its proposed methane rules for the oil and gas sector and to more closely align their respective processes for reining in the greenhouse gas.
Reps. Ed Whitfield and Doug Lamborn, who chair Energy and Commerce and Natural Resources Committee subpanels with jurisdiction over methane, asked EPA to take public input on its methane plan until January — expanding on a previous public comment extension of less than three weeks. The GOP duo also asked EPA to reopen its process when Interior's Bureau of Land Management finishes work on separate standards that would cover venting and flaring of methane from drilling on public lands.
The parallel methane regulations "have the potential to propose requirements that are conflicting or duplicative, and to create significant uncertainty for future operations in the oil and gas sector," the Republicans wrote to EPA chief Gina McCarthy and Interior Secretary Sally Jewell.
EPA's methane proposal, released in August, would require new technology to cut leaks of the potent greenhouse gas on new and modified drilling operations as well as expand the use of so-called "green completions" to oil wells.

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EPA Will Have to Look at Refineries' Eventually -- McCarthy

Nov 24, 2015 | E&E - Climatewire

By Jean Chemnick

U.S. EPA's continuing mandate to implement the Clean Air Act will continue to generate new greenhouse gas emissions reductions that will allow the United States to tighten its future international climate commitments no matter who is next in the White House, Administrator Gina McCarthy said.
In an interview with ClimateWire yesterday ahead of next week's start to U.N. climate talks in Paris, McCarthy said that even if a Republican succeeds President Obama at 1600 Pennsylvania Ave., "the agency will continue to function as it has before."
And that means meeting statutory obligations to promulgate new rules and review old ones -- a process that will lead it to consider whether to regulate greenhouse gas emissions from petroleum refining and other sectors in the future.
"Well, they certainly are going to have to take a look at refineries," McCarthy said. "They'll be obligated to look at it."
These and other rules will allow the State Department in the coming years to deliver on future pledges of emissions reductions, McCarthy said, improving on its pledge ahead of this year's talks that the United States will cut emissions between 26 and 28 percent compared with 2005 levels by 2025.
More than 150 countries have made emissions-reduction pledges ahead of Paris, but while taken together they would reduce the rate at which human-driven warming is occurring, the sum would still fall short of the cuts scientists say are needed to ensure the world a safe climate in decades to come.
U.S. negotiators are promoting text that would bring nations back to the negotiating table every five years after Paris with more ambitious pledges in hand. But while policies like the Clean Power Plan for existing units comprise the backbone of the 26-to-28-percent commitment, the United States will need to add to its policy arsenal in order to show deeper cuts in future years.
But the Clean Air Act provides for that, McCarthy said. The statute would require EPA under future administrations to review rules along a set timeline, including the existing power plant rule. And its policies will help drive the development of technologies that will allow for deeper reductions in the future, she said.Hoping for improved technology
"If there's one thing that we've learned at EPA, it is that constantly revisiting [rules] allows you to take full advantage of technology developments," said McCarthy. The same will be true on the international front, as a deal in Paris sends a market signal that leads to business decisions that will eventually bring more ambitious global reduction targets within closer reach, she said.
This year's agreement will allow the world to "make a big leap forward, but that doesn't mean getting to a trajectory that science demands," she said. That's why future action will be needed in order to keep warming to the recommended 2 degrees Celsius that scientists recommend.
The U.S. emissions commitment -- or intended nationally determined contribution, in U.N. lingo -- had been enough to convince the world that the United States is a full participant in the process, according to McCarthy. When she attended the conference of the parties to the Montreal Protocol at the beginning of this month, McCarthy said she was asked for details about how the Clean Power Plan would withstand litigation and for assurances that Congress and a Republican president couldn't repeal it. But she was not told that it wasn't ambitious enough.
"Every country is respecting the seriousness of our commitment, because we're putting actions behind it," McCarthy said. "I'm not seeing any other country asking, 'Why aren't you doing this, couldn't you do more there?'"
She added that she had reached out repeatedly to her counterparts in foreign countries since the Clean Power Plan was completed last August to reassure them that the rule is on solid legal footing and could only be rolled back through a lengthy rulemaking process that would also require extensive litigation.
She said she did not know whether the United States would make any new announcements at the talks, perhaps when Obama addresses them on Nov. 30. While several Cabinet members including McCarthy herself are expected to travel to Paris, the White House has yet to release those plans, and McCarthy said she wasn't sure she'd be attending. But a new U.S. commitment would not be necessary to facilitate a successful outcome in Paris, she said.
McCarthy defined success in Paris in much the same way the State Department has. She said she hoped the summit would produce a deal that combined ambitious targets, more transparency and accountability provisions; financial and technical assistance for poor countries; and a mechanism to increase ambition in later years. While such an agreement would not be a "silver bullet," she said, it would be a solid foundation on which to build.

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Companies Push Ill.'s GOP Governor to Support Clean Energy

Nov 24, 2015 | E&E - Energywire

By Daniel Cusick

A coalition of Illinois business leaders is pressing Gov. Bruce Rauner (R) to back a state bill that would ratchet up renewable energy and efficiency standards. The leaders say it would drive economic growth and put the state on a path to comply with the federal Clean Power Plan.
Executives for 149 firms signed an open letter in this week's Crain's Chicago Business asking Rauner to support both the Illinois Clean Jobs Bill (S.B. 1485/H.B. 2607) and U.S. EPA's Clean Power Plan requiring the state's electric utilities to cut greenhouse gas emissions by 42 percent.
The state bill, which has garnered support from both Democrats and Republicans, would create energy efficiency programs to reduce electricity demand statewide by 20 percent within the next 10 years, while also boosting Illinois' renewable portfolio standard from 25 percent by 2025 to 35 percent by 2030.
Some of the executives attended a press conference yesterday at the North Loop office of Coalition: Energy, a hub for energy entrepreneurs and startup firms that are working to advance alternative energy solutions in Illinois and nationally.
"This is a moment when Illinois needs to decide whether it will capture the investments and jobs of a booming industry or see them go elsewhere," Lisa Albrecht, a renewable energy specialist with Solar Service Inc., said in a statement. She represents one of the largest solar design and installation firms in the state with roughly 2,000 systems installed.
Albrecht and other business leaders say that if Rauner signs the Illinois Clean Jobs Bill he will put the state on a path to meeting power-sector carbon emission limits required by the Clean Power Plan, while also stimulating the creation of more than 32,000 jobs.
"By attracting more renewables to Illinois, creating more wind capacity, we can increase jobs, increase investments, and continue to provide a lifeline to local communities and Illinois schools at a time they need it most," said Chris Baxter, a Chicago-based origination manager at EDP Renewables North America, a major wind power developer in the state.
The state's clean energy sector already employs an estimated 104,000 workers, according to data from the Illinois Clean Jobs Coalition. But officials warned that "many other states are passing Illinois by in the race for wind and solar projects and the massive investments and jobs that they bring."Rauner silent on climate policy
Calls to Rauner's press office seeking a response to the letter were not returned. Rauner has not taken a position on the Clean Power Plan, and his views on the state energy bill also remain largely unknown, according to sources following the legislation. Many expect no action to be taken on any energy bill in the General Assembly before next year, after lawmakers pass a budget bill.
Rauner previously indicated that he would reserve judgment on the state bill until after the federal Clean Power Plan was finalized. That occurred last month with EPA's publication of the final rule in the Federal Register (ClimateWire, Oct. 23).
While Rauner has remained silent, Illinois Attorney General Lisa Madigan (D) said earlier this month she will back the Clean Power Plan, calling it "an important next step toward cleaner, healthier and more affordable energy." She said her office would file a motion to intervene on behalf of EPA in a court challenge brought by about two dozen other states opposing the program.
Illinois energy policies are further complicated by other interests, including nuclear power giant Exelon Corp., which has pursued its own legislative agenda to ensure its baseload nuclear plants are incorporated into any state compliance plan for the Clean Power Plan.
Exelon, which is also the parent of Illinois' largest regulated utility, Commonwealth Edison, has argued that several of its large nuclear plants have been economically squeezed by the state's shift toward wind power and other renewables, and that nuclear should have a level playing field to compete with other zero-carbon energy sources.
Other top policymakers, including Chicago Mayor Rahm Emanuel (D), have expressed support for the Clean Power Plan and the state energy bill. Among other things, Emanuel has argued that new federal and state clean energy policies would generate as much as $400 million in new investment annually in Chicago alone.
Backers of the state energy legislation also cite estimates from the Illinois Citizens Utility Board, which claims the bill would save Illinois ratepayers $1.6 billion by 2030. That translates to roughly $100 a year per household, on average.
Conservative groups argue the opposite, that a substantial increase in renewable energy use by the state's utilities will drive up electricity rates for consumers and create economic pain for Illinois, the nation's fourth-largest coal-producing state.

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US Agencies Look to Cut Greenhouse Gas Emissions

Nov 24, 2015 | The Hill - E2 Wire

By Devin Henry

The Obama administration is pushing federal agencies to cut their greenhouse gas (GHG) emissions by more than 40 percent by 2025.
The White House announced the 41.8 percent reduction target on Monday, pushing government agencies to cut emissions from their buildings and vehicle fleets around the country.
Cutting down on the emissions, the administration said, will save up to $18 billion in taxpayer-funded energy costs and increase the federal government’s share of renewable energy to 30 percent.
“The federal government’s actions to reduce pollution, support renewable energy, and operate more efficiently make a significant impact on national emissions and drive progress across the federal supply chain,” the White House said in a statement.
Obama has pushed the federal government to lower its emissions over the course of his presidency, signing an executive order toward that goal earlier this year.
Officials pointed to a handful of success stories so far, noting that the General Services Administration — the largest owner of office space in the country — has cut its energy consumption enough to reduce its annual emissions by 43 percent since 2008.
NASA and the departments of Energy and Homeland Security are all looking to deploy clean energy systems to meet their goals, the administration said.
In total, the White House said, “federal agencies have developed targeted strategies to cut their GHG emissions by reducing energy use in their buildings, making their vehicles more efficient, using clean energy sources like wind and solar and employing energy savings performance contracts."

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Ports are the New Power Plants — At Least in Terms of Pollution

Nov 24, 2015 | Washington Post

By Lydia DePillis

On New Jersey’s map of diesel exhaust, most of the state is a peaceable blue, indicating a relatively low concentration of pollutants. But there’s a big angry red splotch, where diesel levels are 100 to 1,000 times the benchmark that’s considered safe for humans to breathe.
That splotch falls squarely over the Port of New York and New Jersey, the nation’s third-largest gateway for ocean-borne cargo. It also encompasses several low-income communities in Newark, Bayonne, and Elizabeth, where asthma is now a leading cause of absenteeism for school-age kids. More detailed maps show elevated cancer risk from air quality in census tracts closest to the port.
It’s not just Newark: There are similar red splotches over neighborhoods surrounding seaports across the nation. Living next to one of them is similar to living next to a coal plant, with all the exhaust from trucks, ships, rail yards and cranes — except the federal Environmental Protection Agency hasn’t regulated their cumulative emissions as tightly, in the way that it has recently targeted those gigantic single sources of air pollution with strict new limits on how much they can emit.
And the clock is ticking. The widening of the Panama Canal is expected to create an influx of super-large ships, and many U.S. ports are now beefing up their capacity to welcome them. So advocates are sending a message that new inventions — like hydrogen and electric-powered vehicles and machines — are needed to make sure the adjacent neighborhoods don’t suffer even more as freight volumes rise.
“We call these facilities diesel magnets,” says Angelo Logan, policy lead for a coalition of environment and community groups called theMoving Forward Network. “They need to be looked at in the same way that power plants are looked at, in the same way that an oil refinery is looked at.”
Currently, the EPA requires states to develop plans to bring broad areas into compliance with national air quality standards. But that might not mean the neighborhoods closest to the ports in particular reach those safe levels. That’s why Logan’s coalition wants the EPA to step in, requiring states to make and enforce specific plans for the tangle of businesses that transport goods in and out of the metropolitan area.
“We can grow and we can grow green, but what it requires is that EPA really push industry and the ports to move into zero emissions technologies,” Logan says. “There are many different governments and authorities, and EPA has a national reach.”
So far, they’ve got a petition aimed at EPA Administrator Gina McCarthy and backed by advocacy groups such as Union of Concerned Scientists and Natural Resources Defense Council. A letter to McCarthy in late July laid out their specific requests, and has so far not received a response.
To the seniors who gather around folding tables a few times a week at the community center in Weequahic Park in Newark, living in a web of transportation infrastructure feels like being under attack. Some of them grew up there, others moved for cheaper housing, but all feel unable to escape.
“You’re constantly getting it, from above and below,” says Brenda Liggins, a small woman enveloped in a large white sweatshirt, talking about the trains that shake the ground as they rumble by, the planes that scream as they pass overhead.
“In order to get away from the fumes, you have to get out by 5 in the morning,” agrees Cora Moody, 66. “Before the air starts selling down.”
But the worst thing, for the Weequahic Park commentariat, is the trucks.
"These trucks stay on the whole day. All you hear is BRRRRRUHHGHGH,” imitates Everton Hammond, 59. The noise even reaches through the window of his high-rise right off Frelinghuysen Avenue, a main trucking thoroughfare; exhaust surrounds the seniors who sit on the benches outside. “It chokes you out. Sometimes you can barely breathe,” he says.
Then, someone wondered whether planes could even be dropping gasoline in the park, after noticing a strange illness on the park’s trees. They probably aren’t, but it seems like the kind of thing that might happen around the Port of Newark.
“They don’t know what is harming them,” says Kim Gaddy, a local organizer with Clean Water Action, who knows the park and its seniors well. “Today, it’s the trucks. Tomorrow, it could be something else.”
The sprawling, fragmented complex that abuts Weequahic Park also happens to be one of the best illustrations of why it’s hard to get some ports to do much on their own.
For one thing, it’s difficult to tell who exactly is in charge of what. The Port Authority is governed by a board that’s split by appointees of the governors of both states, but some parts of the port sit on land owned by different municipalities. The marine terminal operators lease space from the Port Authority and manage cargo brought in by the shipping lines, paying fees to the trucking companies that haul containers away to rail yards or warehouses.
In 2009, the Port Authority convened all of those stakeholders to come up with a plan to reduce emissions, including voluntary steps like financial incentives for clean-burning ships. Since then, officials say, levels of toxins like nitrogen oxide and sulfur have declined, despite a small rise in traffic. The New York Shipping Association, which represents the businesses that run the port, says those voluntary programs are enough — its members have upgraded to cleaner cargo handling equipment (with the help of state subsidies). “Our members continue to back environmental goals for our port, actively live up to the commitments they have made and will continue to do so,” says spokeswoman Beverly Fedorko.
But that hasn’t had much of an impact on diesel emissions from trucks, which come the closest to where people live, and are now internationally recognized as a cause of lung cancer. The Port Authority’s plan says that all trucks with engines older than 2007 will be banned from the port starting in 2017, since the newer ones are much cleaner, but the path from A to B is far from clear. New trucks cost tens of thousands of dollars, and most port truckers are independent operators, running on razor-thin margins as it is — they likely won’t be able to finance the replacements in time.
“There’s no way we can get enough grant funding to replace all these trucks,” says Bill Nurthen, general manager of the port’s environmental programs. The federal Diesel Emissions Reduction Act could to help fund these kinds of projects, but Congress has given the program only 30 percent of the money authorized by the legislation. At the moment, the Port Authority has enough money to help replace 354 of the 6,302 pre-2007 trucks that come in and out on a regular basis.
Faced with that reality, Nurthen says they’re considering pushing back the deadline. “If you stick with the phaseout plan, which would deny access to trucks with 2006 or older engines,” he says. “Imagine what that would do to the port’s ability to move cargo.”
Amy Goldsmith, a Moving Forward Network member who serves as the New Jersey director for Clean Water Action, says that’s exactly the problem. "There’s no mandate that the Port Authority upgrade,” Goldsmith says. “It’s completely voluntary, and they can throw it out in any board meeting they feel like.”
Instead, she wants the EPA to set much more ambitious targets that would force the adoption of next-generation technologies, rather than incremental upgrades. “I think history has shown that industry has never stepped up to do the right thing on its own,” Goldsmith says. “It’s always through a regulatory technique or a mandate to move the technology, and innovation. It’ll move faster if the EPA keeps its direction, rather than leaving everyone to wonder, where are we going to land?”
In response to the Moving Forward Network’s campaign, the EPA provided information about its efforts to help ports clean up. "EPA has a suite of programs and regulations that reduce emissions at ports, including engine standards, fuel requirements and voluntary programs to address emissions from port trucks, equipment and vessels,” EPA spokeswoman Christie St. Clair wrote in an e-mail, noting that further recommendations were due by year’s end.
On the other side of the country, California shows that another way is possible.
Through the California Air Resources Board and other regional regulatory bodies, the Golden State has been much more aggressive in containing emissions at the ports of Los Angeles and Long Beach, the nation’s largest. To meet phase-out deadlines for older trucks, they levied a fee on loaded containers to raise $2 billion for grants and loan subsidies. Terminal operators have started to use more electric power in order to meet the goals of a clean air action plan, and even a machine that sucks smog out of the exhaust vents of barges and then filters out the toxic chemicals.
Equally important, however, is a change in the structure of the industries that serve the port. In the case of trucks, advocates think that larger companies would be better equipped to comply with new regulations themselves, rather than having the cost fall on cash-strapped owner operators.
That’s why this environmental story is also a labor story. One of the key members of the Moving Forward Network is the International Brotherhood of Teamsters, which has been battling for years to prove that those truck drivers have been illegally misclassified as independent contractors by the companies that dispatch them. The federal Department of Labor has prosecuted scores of such cases, and now the Teamsters are unionizing some companies whose drivers are newly classified as employees.
One of those is an L.A.-based company called EcoFlow, which is building a fleet of highly efficient trucks — even a few hydrogen and electric ones — and negotiating a contract with the Teamsters. The business case for that model depends on law enforcement making it more expensive to misclassify drivers, which in years past has been profitable and risk-free for trucking companies.
"There is an embedded cost that is not coming to the forefront, which is that the non-compliance part catches up to them in the form of fines and litigation,” says Jonathan Rosenthal, a private equity executive who leads EcoFlow’s board. “I think what will happen is that the industry will over time migrate to a largely employee model. But you have to assume that enforcement of existing regulations will be more rigorous.”
Gradually, the intense political and regulatory pressure in California has started to make a difference to the health of surrounding communities. “We know in L.A. kids’ lungs have gotten better as air pollution has dropped,” says Andrea Hricko, professor of clinical preventive medicine at the University of Southern California.
She’s supporting the campaign targeting EPA, though, because most local politicians — in places like New Orleans, New Jersey, Savannah, Galveston — haven’t supported the same level of regulation that’s possible in California. “It’s been harder for the ports here to get away with a lot than it has been in communities that don’t have the capacity to deal with this issue,” Hricko says.
Meanwhile, researchers are still learning more about how diesel affects kids in Newark. Professor Robert Laumbach of Rutgers’ Robert Wood Johnson School of Medicine has been collecting data from particulate monitors that attach to kids’ backpacks. The results aren’t all in, but Laumbach hypothesizes that the chronic stress of poverty in neighborhoods surrounding the port might exacerbate the health effects of bad air quality, which he compares to the cigarette smoke that used to pervade public places.
"Back when I was a kid, growing up in the 1970s, my family would go out to restaurants, and there were no smoking restrictions. And then it became apparent that cigarette smoke makes cardiovascular disease worse, and causes cancer, even for people who don’t smoke,” Laumbach says. “We’re still at the point where it’s accepted that there are diesel trucks in our neighborhoods. When there’s a technology available that controls it, why do we accept these risks for diesel exhaust?”
To the kids in Newark, it’s not just the presence of the port itself — it’s the surrounding operations as well, like the trash incinerators, the scrap yards, the swirl of on-ramps and off ramps from four major highways. It’s especially bad in the summer, says Nyheim Carter, a gangly 14-year-old who lives in the Ironbound, a low-income neighborhood that gets the brunt of the emissions. "You might think aww, you farted! But no, it’s the air,” he says. “It stinks so much I don’t want to go outside.”
Carter and his friend Jefferson Diaz, 13, say they’ll move out as soon as they’re old enough, and certainly wouldn’t raise their own kids where they grew up. “I want to Iive in the rich areas,” Diaz says. “They don’t put the incinerators there.”

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90 House Lawmakers Back WOTUS Riders in Spending Bill

Nov 24, 2015 | E&E - Greenwire

By Tiffany Stecker

Ninety lawmakers have signed a letter urging House leaders to include policy riders to block the Waters of the U.S. rule in the year-end omnibus spending bill.
The letter calls on House Speaker Paul Ryan (R-Wis.), Minority Leader Nancy Pelosi (D-Calif.), House Appropriations Chairman Hal Rogers (R-Ky.) and ranking member Nita Lowey (D-N.Y.) to allow a backstop provision to block funding in fiscal 2016 for the implementation of the joint U.S. EPA-Army Corps of Engineers rule, which was finalized earlier this year and has been challenged by dozens of states in numerous courts.
The rule was written in an effort to clarify the definition of waters that receive automatic protection under the Clean Water Act but has faced a strong pushback from farmers, developers and congressional Republicans.
"We urge you to consider the substantial cost, confusion, and regulatory burden this rule will have on the economy if this controversial rule is funded for Fiscal Year 2016," said the letter, which was spearheaded by Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) and Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-Ohio).
Of the 90 signatures, three are Democrats -- Reps. Brad Ashford of Nebraska, Collin Peterson of Minnesota and Kurt Schrader of Oregon.
The 6th U.S. Circuit Court of Appeals in Cincinnati has issued a temporary nationwide stay on the rule while it decides whether it has jurisdiction over the issue.
The U.S. District Court for the District of North Dakota, where a federal judge issued an injunction in August, could move ahead on the case before the 6th Circuit has decided in which court the battle will be fought (Greenwire, Nov. 18).
Under the final version of the rule, wetlands that are farther than 4,000 feet from a river or stream that is covered by the Clean Water Act are beyond the reach of the law unless they fit into one of five categories: prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands (Greenwire, June 1).

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Scientists Warn Congressional Probe Will Chill Research

Nov 24, 2015 | National Journal

By Jason Plautz

What’s the line between investigation and intimidation? When does oversight become an overreach?
That’s the question the House Science, Space, and Technology Committee is grappling with as Chairman Lamar Smith intensifies a probe into a federal study on climate change. Smith says that he’s just doing the committee’s due diligence, using his congressional powers to get answers to “serious questions” about how a government-backed study was conducted.
But critics, including his ranking member, say that probe is a McCarthy-esque witch hunt targeted at the science of climate change. Left unchecked, they say, it could have drastic ramifications.
“What we think is at stake here is the integrity of the scientific process and the ability of scientists to conduct their work free of reprisal,” said Christine McEntee, executive director of the American Geophysical Union. “The minute you start interfering in the debate before scientists get to their conclusions, you risk a lot of fear and intimidation.”
At issue is a study from the National Oceanic and Atmospheric Administration published in the journal Science this summer that found that there was no 15-year “pause” in global warming—a theory that climate skeptics have often embraced.
Smith, a Texas Republican, has charged that the study relied on skewed data, or that researchers monkeyed with the results, in order to build up support for the White House climate agenda. “It was inconvenient for this administration that climate data has clearly showed no warming for the past two decades,” he said in a statement last month, adding that citizens “have every right to be suspicious when NOAA alters data to get the politically correct results they want.”
In a letter last week to Commerce Secretary Penny Pritzker, Smith piled on with an allegation that a whistleblower told the committee the study was rushed.
Smith has called NOAA staff and scientists up to the Hill for closed-door interviews, and more controversially, subpoenaed internal communications among the scientists involved in the research.
In an interview with The Washington Post Monday, a spokeswoman for Science rebutted Smith’s claims. Ginger Pinholster of the American Association for the Advancement of Science, which publishes the journal, said the paper “went through as rigorous a review as it could have received,” one that was even longer than usual.
NOAA’s methodology and data is also publicly available, and the agency has said that it is complying with the investigation. What’s more, the global-warming “pause” has also been rebutted in other studies. In a statement last week, NOAA chief Kathryn Sullivan said that she was “not engaged in or associated with any ‘politically correct agenda,’” and that nobody at NOAA would manipulate science.
But the flare-up is bigger than just one study.
Keith Seitter, executive director of the American Meteorological Society, said in aletter to Smith that seeking internal communications “places a burden on NOAA scientists, imposes a chilling effect on future communication among scientists and potentially disrupts NOAA’s critical efforts to protect life and property.”
He goes on to quote from his group’s “Statement on Freedom of Scientific Expression”:
“The ability of scientists to present their findings to the scientific community, policy makers, the media, and the public without censorship, intimidation, or political interference is imperative.”
“The signal is that if you write something that’s controversial and a political figure is concerned about it, maybe you’re next on the list for a subpoena,” said Andrew Rosenberg, director of the center for science and democracy at the Union of Concerned Scientists.
While the scientific community is essentially settled on the reality and human-related causes of climate change (97 percent of scientific studies have affirmed it), the debate on the Hill has often careened into a fact-free zone in which members pick and choose the studies and results that back their side. Rosenberg said that Smith’s probe takes this a step further by going after the very roots of the scientific process.Any study, he said, goes through a strict peer-review process, and the data and methodology will be scrutinized. A study that doesn’t pass muster, he said, wouldn’t make it into print. And while anyone should be expected to explain the scientific backing of any study, he said that doesn’t include a researcher’s internal discussions.
“What you don’t want is when people are exchanging ideas to be thinking about how this would play out in a legal context,” he said. “You’re saying Congress knows better and Congress can intercede and turn this process of inquiry in a political and legal process.”
A committee aide said that the panel was not investigating the peer-review process, but rather NOAA’s internal review process before the study was submitted. In a statement, Smith said his concern was “the right of the American people to the facts and unbiased information.”
Since taking the reins of the Science Committee in 2013, Smith has increasingly gone after the scientific process. One of his centerpiece agenda items is a bill to address so-called “secret science,” which critics have said is just a backdoor way to undo climate-change policy. At the beginning of this Congress, Smith was handed new subpoena powers, which he’s used to go after a slew of federal officials working on climate and environment policy.
That already put Smith in the crosshairs of science groups, but the NOAA dispute has thrust the issue into the spotlight. Rep. Eddie Bernice Johnson, the ranking member of the committee, has fired off a series of irate letters, accusing Smith of engaging in an “ideological crusade” and a “witch hunt” against science that he doesn’t believe in.
But Smith says Johnson is standing in the way of the committee’s work. In a letterMonday, Smith wrote that Johnson has shown she’s “not interested in obtaining answers to those important questions” and “willing to let them go unanswered.” Smith accused her of acting “as a defense counsel for the administration” who says the committee should “seek fewer documents and ask fewer questions.”
As to whether his probe is out of line, Smith wrote: “The request for documents and communications between federal employees serves the purpose of informing the Committee about the reasoning behind why a certain policy decision was made. As it is true that science informs policy, examining the data underlying policy decisions can be very valuable to informing the Committee’s actions with respect to legislation that may be necessary.”
McEntee, whose group has challenged the investigation publicly, said that while it’s true that Congress should study—and even debate—science to inform policy, that can be done with the data and methodology that’s already made available. Going any further, she said, puts the whole process into question.
“If we start politicizing science, then the public and policymakers won’t have peer-reviewed work and the best information on which to base their policy deliberations,” she said. “This article is about climate change, but the next one could be about space weather or the causes of earthquakes or whether fracking hurts water quality. There’s not a topic where a report isn’t done that someone doesn’t agree with. … It’s about the integrity of the process.”

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Why Are So Many Americans Skeptical About Climate Change? A Study Offers a Surprising Answer

Nov 24, 2015 | Washington Post

By Joby Warrick

Climate change has long been a highly polarizing topic in the United States, with Americans lining up on opposite sides depending on their politics and worldview. Now a scientific study sheds new light on the role played by corporate money in creating that divide.
The report, a systematic review of 20 years’ worth of data, highlights the connection between corporate funding and messages that raise doubts about the science of climate change and whether humans are responsible for the warming of the planet. The analysis suggests that corporations have used their wealth to amplify contrarian views and create an impression of greater scientific uncertainty than actually exists.
“The contrarian efforts have been so effective for the fact that they have made it difficult for ordinary Americans to even know who to trust,” said Justin Farrell, a Yale University sociologist and author of the study, released on Monday in the peer-reviewed journal, Proceedings of the National Academy of Science.
Numerous previous studies have examined how corporate-funded campaigns have helped shape individual views about global warming. But the Yale study takes what Farrell calls the “bird’s-eye view,” using computer analytics to systematically examine vast amounts of printed matter published by 164 groups—including think-tanks and lobbying firms—and more than 4,500 individuals who have been skeptical of mainstream scientific views on climate change.
The study analyzed the articles, policy papers and transcripts produced by these groups over a 20-year period. Then it separated the groups that received corporate funding from those that did not.
The results, Farrell said, revealed an “ecosystem of influence” within the corporate-backed groups. Those that received donations consistently promoted the same contrarian themes—casting doubt, for example, on whether higher levels of man-made carbon-dioxide in the atmosphere were harmful to the planet. There was no evidence of such coordination among the non-funded groups.
The existence of corporate money “created a united network within which the contrarian messages could be strategically created” and spread, Farrell said.
“This counter-movement produced messages aimed, at the very least, at creating ideological polarization through politicized tactics, and at the very most, at overtly refuting current scientific consensus with scientific findings of their own,” he said.
The report did not examine the impact of outside money on the messages of groups that encourage activism on climate change. Farrell suggested that there were qualitative differences between such groups and those that sought to advance corporate interests by promoting skepticism about science.
“Funders looking to influence organizations who promote a consensus view are very different from funders looking to influence organizations who have the goal of creating polarization and controversy and delaying policy progress on a scientific issue that has nearly uniform consensus,” he said.
The publication of the report comes two weeks after New York prosecutors announced an investigation into whether Exxon Mobil misled the public and investors about the risks of climate change. The probe was prompted in part by reports in the Los Angeles Times and the online publication Inside Climate News, alleging that Exxon researchers expressed concerned about climate change from fossil fuel emissions decades ago, even as the company publicly raised doubts about whether climate-change was scientifically valid.
Exxon has declined to comment on the investigation while acknowledging that its position on climate-change has evolved in recent years. “Our company, beginning in the latter part of the 1970s and continuing to the present day, has been involved in serious scientific research, and we have been supporting since that time scientific understanding of the risk of climate change,” Exxon’s vice president of public and government affairs Ken Cohen told reporters after the New York probe was revealed.

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