Preview Newsletter
ACC AM Dec 9
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(ACC Mentioned) Global Nov IBAP In Fifth Consecutive Fall As Autos Petchem Costs Drop
Dec 8, 2015 | ICIS News
By Vasiliki Parapouli
The Global ICIS Basket of Automotive Petrochemicals (IBAP) has fallen for the fifth consecutive month to its lowest recorded level in November, ICIS analysis showed on Wednesday. Petrochemical prices fell in all three of the major auto producing regions of Europe, the US and Asia. -
(ACC Mentioned) House Approves Microbeads Ban Legislation
Dec 8, 2015 | InsideEPA
The House has approved legislation to ban the use of plastic microbeads in personal care products by 2018, seeking to reduce microplastic pollution in the Great Lakes and other waterbodies and drawing praise from the wastewater treatment industry and plastic manufacturers. -
(ACC Mentioned) U.S. House Passes Legislation To Ban Plastic Microbeads
Dec 8, 2015 | Plastics Today
By Kari Embree
The U.S House on Monday swiftly passed a bill to ban plastic microbeads in over-the-counter (OTC) and personal-care products, starting in 2017. The legislation, which is headed next to the Senate for review, would ban the manufacture of microbeads beginning in 2017 and eliminate their use in cosmetics and over-the-counter drugs in 2018... -
(ACC Mentioned) Bill to Ban Microbeads Advances Through Congress
Dec 8, 2015 | Chem.Info
By Meagan Parrish
This week, the House approved a bill that would phase out the production and sale of microbeads in soaps and personal care products by 2017. Called the Microbead-Free Waters act and sponsored by Fred Upton (R-MI) and co-sponsored by Frank Pallone Jr. (D-NJ), the bill passed by a unanimous voice vote on Monday. -
City Councilman Wants All Foam Recycled: ‘There Is A Strong, Established And Growing Market For Used Foam Products’
Dec 8, 2015 | New York Daily News
By Erin Durkin
A City Councilman opposed to the city’s plastic foam ban says he’ll introduce legislation to require all used foam to be recycled. “It is indisputable that foam can be recycled. There is a strong, established, and growing market for used foam products,” said Councilman Fernando Cabrera (D-Bronx). -
Murphy Urges Senate To Vote On Bill To Ban Microbeads
Dec 8, 2015 | The Hill - Regulation
By Lydia Wheeler
Sen. Chris Murphy (D-Conn.) is calling on his colleagues in the Senate to follow in the footsteps of the House and pass legislation to ban plastic microbeads from soaps and body washes. “Microbeads are tiny plastic particles that go down our drains right into our lakes, rivers, and oceans,” he said in a news... -
EPA Aims to Propose E-Manifest User Fee in Spring
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
The Environmental Protection Agency plans to propose by spring 2016 a user fee regulation for its national electronic manifest system to track hazardous waste shipments, an agency official said Dec. 8. The proposed rule, which will set out the methodology the agency is proposing to set fees, is under final agency review... -
Scientists Identify Key Characteristics Of Human Carcinogens
Dec 9, 2015 | Chemical Watch
By Philip Lightowlers
A group of government and university scientists, mainly from the US, have published a method for identifying and organising human carcinogens, based on ten key characteristics – mechanisms commonly exhibited by known human carcinogens. The characteristics were identified by two expert workshops... -
Site for Self-Reporting Environmental Violations Launched
Dec 9, 2015 | BNA Daily Environment Report
By Renee Schoof
An online system for companies to self-disclose environmental violations and resolve some routine issues automatically without penalties will be available from the Environmental Protection Agency on Dec. 9. The eDisclosure system modernizes the agency's 1995 audit policy and allows businesses to get routine disclosures... -
Continuous Monitoring Touted for TCE: Scientist
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
Short-term exposure to trichloroethylene that has migrated into indoor air through vapor intrusion is a newly discovered public health concern, and continuous monitoring technology is the preferred way to handle it, a scientist said. “TCE is the hottest topic in vapor intrusion right now,” Blayne Hartman... -
US EPA Extends DfE Antimicrobial Pesticide Pilot
Dec 8, 2015 | Chemical Watch
The US EPA has extended its Design for the Environment (DfE) labelling programme's antimicrobial pesticide pilot to 3 May 2016. This aims to help “consumers find products that are more toward the green end of the pesticide spectrum.” The agency renamed the DfE programme Safer Choice and released new eco-logos in March. -
DOT Oil Pipeline Rules Must Be Changed: National Academies
Dec 9, 2015 | BNA Daily Environment Report
By Rachel Leven
The Transportation Department should strengthen oil pipeline rules given findings that diluted bitumen, heavy petroleum mixed with lighter oils, has greater environmental risks than other crude oils when interacting with the environment, the National Academies of Sciences, Engineering, and Medicine said Dec. 8 in its report on the findings. -
Oil Spill Lawsuits Seek Pipeline Inspection Records
Dec 9, 2015 | BNA Daily Environment Report
Environmental Defense Center and Santa Barbara Channelkeeper filed a pair of lawsuits Dec. 7 to push the pace of federal agency responses to Freedom of Information Act requests about oil pipeline inspection records and related information (Envtl. Def. Ctr. v. Pipeline and Hazardous Materials Safety Admin., C.D. Cal., No. 2:15-cv-09433, 12/7/15... -
Texas Proposals on Fracking Draw Industry Support
Dec 9, 2015 | BNA Daily Environment Report
By Nushin Huq
The oil and gas industry said it liked the Texas Railroad Commission's proposed rules on unconventional fracture-treated fields because they streamline regulations for horizontal wells used in hydraulic fracturing, according to comments filed with the commission and posted on Dec. 7. -
Colorado's Fracking Battle Goes Before State Supreme Court
Dec 9, 2015 | AP (in the Houston Chronicle)
By Dan Elliott
Colorado's loud public battle over fracking goes before the state Supreme Court on Wednesday when the justices hear arguments about whether local governments can ban the technique. Fracking, or hydraulic fracturing, helped set off an energy boom in Colorado. It also stirred up a fight over the potential dangers to the environment, public health... -
McCarthy: Clean Power Plan ‘Will Stand Test of Time’
Dec 9, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's Clean Power Plan “will stand the test of time” despite an array of legal challenges to the rule, Administrator Gina McCarthy said in a speech at the international climate negotiations in Paris. “First, it's based on science and the law,” McCarthy said Dec. 8 according to a transcript of her remarks as prepared. -
Sixth Circuit Hears Oral Arguments on Water Rule
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
Predicting that judicial authority over a rule seeking to refine the reach of the Clean Water Act will ultimately be decided by the U.S. Supreme Court, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit heard oral arguments Dec. 8 on whether it is the appropriate venue to hear challenges to the rule... -
Judges Signal WOTUS Case Belongs In Appeals Court
Dec 8, 2015 | E&E News PM
By Tiffany Stecker
Federal judges today appeared leaning toward keeping lawsuits challenging the Obama administration's controversial Waters of the U.S. rule in an appeals court rather than district courts across the country as requested by the regulation's challengers. -
It's Power Of The Purse Time In Congress
Dec 9, 2015 | The Hill - Contributors
By Rick Manning
The final touches of the omnibus funding bill are being put into place, and it is imperative that conservative House and Senate members provide leadership with a pathway to get their votes and that the leadership reaches out to conservatives for that guidance before it is set in concrete. -
Power Companies, States Urge Court To Keep Climate Rule Alive
Dec 8, 2015 | E&E News PM
By Robin Bravender
Stopping U.S. EPA's climate change rules for power plants could hurt utilities investing to crack down on their greenhouse gas emissions, a coalition of energy companies told a federal court today. A broad coalition of utilities, states and others have asked the court to issue a stay halting the Obama administration's Clean Power Plan ... -
Federal Climate Data Too Disconnected, GAO Says
Dec 9, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The federal government could do a better job connecting information on climate change and its impacts to the people that need it, according to a new report from the Government Accountability Office. Federal climate change observations and projections have typically been spread out across different agencies. -
Cruz Hearing Attempts to Cast Doubt on Climate Science
Dec 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
Sen. Ted Cruz (R-Texas), a leading Republican candidate for president, attempted to cast doubt on the near-unanimous scientific consensus that human activity significantly contributes to climate change Dec. 8 during a Senate Commerce, Science and Transportation subcommittee hearing.
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(ACC Mentioned) Global Nov IBAP In Fifth Consecutive Fall As Autos Petchem Costs Drop
Dec 8, 2015 | ICIS News
By Vasiliki Parapouli
The Global ICIS Basket of Automotive Petrochemicals (IBAP) has fallen for the fifth consecutive month to its lowest recorded level in November, ICIS analysis showed on Wednesday.
Petrochemical prices fell in all three of the major auto producing regions of Europe, the US and Asia. According to data, Europe was again the largest contributor to the drop, with the size of the overall decline in November being bigger than October but smaller than September.The major causes of price decreases in November globally were falling building block petrochemicals costs, the stronger dollar against the euro and the pressure deriving from the slowdown in the Chinese economy.
This is a provisional IBAP and will be subject to revision as the US polyvinyl chloride (PVC) November contract had not settled by the time of publication.
The IBAP comprises prices for polypropylene (PP), polyethylene (PE), acrylonitrile butadiene styrene (ABS), nylon, polyvinyl chloride (PVC), polycarbonate (PC), isocyanates, polyols, styrene butadiene rubber (SBR), polyethylene terephthalate (PET), base oils and soda ash.
In Asia and Europe, the IBAP additionally includes prices for polyacetal (POM) and polybutylene terephthalate (PBT), which ICIS does not cover in the US.
Weightings are based on American Chemistry Council (ACC) and European Automobile Manufacturers Association (ACEA) data. IBAP data goes back to March 2014.
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(ACC Mentioned) House Approves Microbeads Ban Legislation
Dec 8, 2015 | InsideEPA
The House has approved legislation to ban the use of plastic microbeads in personal care products by 2018, seeking to reduce microplastic pollution in the Great Lakes and other waterbodies and drawing praise from the wastewater treatment industry and plastic manufacturers.
The bill, H.R. 1321, was introduced by Reps. Fred Upton (R-MI) and Frank Pallone (D-NJ) and passed Dec. 7 by voice vote. Upton is the chairman and Pallone is the ranking member of the House Energy and Commerce Committee.
Sen. Kirsten Gillibrand (D-NY) urged EPA last year to add plastic microbeads to the list of emerging contaminants the agency is studying as part of an interagency lakes cleanup effort. Gillibrand is the sponsor of the companion Senate legislation, S. 1424.
The bill would ban the manufacture of such beads beginning July 1, 2017, and ban their use in products beginning on July 1, 2018. The deadlines for eliminating their use “in the case of a rinse-off cosmetic that is a nonprescription drug” are one year later. It would preempt any state bans unless they are identical to the federal language.
Microbeads are solid plastic particles usually less than five millimeters in size and are found in many personal care and cosmetic products such as toothpastes and face wash. They have been found to attract pollutants like polychlorinated biphenyls, dichlorodipherryltrichloroethane and polycyclic aromatic hydrocarbons, raising concerns about their ingestion by aquatic species and possible human exposure through the food web.
Nine states have enacted similar bans, and an additional 15 states are considering or have pending microbeads legislation, according to the report accompanying the bill. California is the most recent state to enact a ban, which would become effective Jan. 1, 2020, and environmentalists and the wastewater treatment industry have praised the bill for banning both traditional microbeads and those made with biodegradable plastics.
Rep. Candice Miller (R-MI) praised the bill's passage in a Dec. 7 statement, saying, “I generally oppose imposing federal mandates on states, and while a small number of Great Lakes states have already taken action to ban microbeads, the threat they pose is just too great to wait for each state to adopt this necessary ban individually.”
Adam Krantz, CEO of the National Association of Clean Water Agencies, said in a Dec. 7 statement that the legislation “is an important step towards increased collaboration among key stakeholder groups to improve our nation's water quality.”
“We are pleased to see this legislation pass with strong bipartisan support as well as with the support of the personal care product industry to protect our critical water resources from products too small to be captured by the municipal wastewater treatment process," he said.
The American Chemistry Council also praised the House vote, saying in a Dec. 7 statement that the bill “is an important step to ensure we have one sensible, national standard for phasing out the use of solid plastic microbeads in personal care products across America.”
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(ACC Mentioned) U.S. House Passes Legislation To Ban Plastic Microbeads
Dec 8, 2015 | Plastics Today
By Kari Embree
The U.S House on Monday swiftly passed a bill to ban plastic microbeads in over-the-counter (OTC) and personal-care products, starting in 2017. The legislation, which is headed next to the Senate for review, would ban the manufacture of microbeads beginning in 2017 and eliminate their use in cosmetics and over-the-counter drugs in 2018 and 2019, respectively. The bill cleared the House unanimously after previously passing the House Energy and Commerce Committee, also without objection, in November.
Plastic microbeads have been in the middle of a heated debate as concern has been raised among clean water advocates on the challenging removal process typically done in wastewater treatment processes. The microbeads are able to crossover into the waterways during these, inflicting harm to marine life. Currently, there are other natural alternatives available to replace plastic microbeads in personal care and OTC products.
Consumer Healthcare Products Association (CHPA) President and CEO Scott Melville released the following statement commending the U.S. House of Representatives for speedy passage of the Microbead-Free Waters Act of 2015 (H.R. 1321). The bill, sponsored by U.S. Rep. Frank Pallone, Jr. (D-NJ) and U.S. Rep. Fred Upton (R-MI), provides a reasonable timeframe for the removal of synthetic plastic microbeads from over-the-counter (OTC) and personal care products.
“The OTC medicine industry applauds Representatives Pallone and Upton for shepherding legislation that sets forth feasible phase-out dates for plastic microbeads in OTC products, appropriate definitions of key terms, and ensuring uniform enforcement across the nation.
“Our industry takes concerns about these solid plastic microbeads possibly entering the marine environment very seriously, and we are committed to reformulating cosmetic OTCs—such as acne face washes and toothpastes—to remove plastic microbeads. CHPA member companies have already taken steps to voluntarily remove these solid plastic microbeads from their products by ceasing the development of any new products containing synthetic plastic microbeads and working toward formulating replacement products. The timeframe allocated in this bill provides manufacturers adequate time to identify and phase in alternatives.”
The American Chemistry Council (ACC) also praised lawmakers for passing the legislation on Monday.
“Plastics play a vital role in our economy—from helping build and maintain homes to advancing new technologies,” the industry group said. "H.R. 1321 is an important step to ensure we have one sensible, national standard for phasing out the use of solid plastic microbeads in personal care products across America."
CHPA along with the ACC, Personal Care Products Association, and SPI: The Plastics Industry Trade Association sent a letter of support for the legislation to Reps. Upton and Pallone on Nov. 17.
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(ACC Mentioned) Bill to Ban Microbeads Advances Through Congress
Dec 8, 2015 | Chem.Info
By Meagan Parrish
This week, the House approved a bill that would phase out the production and sale of microbeads in soaps and personal care products by 2017.
Called the Microbead-Free Waters act and sponsored by Fred Upton (R-MI) and co-sponsored by Frank Pallone Jr. (D-NJ), the bill passed by a unanimous voice vote on Monday.
Microbeads — tiny plastic pellets that can give skin care products soft exfoliation properties — have been under intense scrutiny in recent years. Made from non-biodegradable plastic, the particles have been shown to amass in high concentrations in waterways. Then, because the beads resemble fish eggs, they can be consumed by marine wildlife that could eventually end up in the food supply.
It’s a situation that not only poses an environmental risk to lakes and rivers, but also a health concern for anyone consuming potentially contaminated fish.
Companies such as L’Oreal, Johnson & Johnson and Procter & Gamble already have plans to phase out the use of microbeads, and several states have enacted bans that restrict manufacturing personal care products with microbeads.
“I would urge all my colleagues to join me in ending this pesky problem. They’re tiny plastic, but big-time pollution,” Upton said during the House session.
The bill in Congress would override the current patchwork of state restrictions on microbeads and according to Pallone, would phase out products using the synthetic material faster than state laws would.
The law would apply to any non-prescription rinse-off cosmetics, including toothpaste.
The American Chemistry Council (ACC) lauded the legislation while touting the importance of plastic in the nation’s manufacturing industry.
“Plastics play a vital role in our economy — from helping build and maintain homes to advancing new technologies,” ACC said. "H.R. 1321 is an important step to ensure we have one sensible, national standard for phasing out the use of solid plastic microbeads in personal care products across America."
If passed into law, the bill will ban manufacturing microbeads starting in July 2017, followed by a ban on the sales of products containing microbeads that would start in July 2018. Sales of over-the-counter drugs containing microbeads would start in July 2019.
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Dec 8, 2015 | New York Daily News
By Erin Durkin
A City Councilman opposed to the city’s plastic foam ban says he’ll introduce legislation to require all used foam to be recycled.
“It is indisputable that foam can be recycled. There is a strong, established, and growing market for used foam products,” said Councilman Fernando Cabrera (D-Bronx).
The de Blasio administration enacted the ban on polystyrene, better known as styrofoam, in takeout containers and packing peanuts after the Sanitation Department determined there’s no practical way to recycle the stuff, which clogs up landfills.
NYC STILL WANTS TO BAN FOAM FOOD CONTAINERS
But opponents in the foam and restaurant industries sued to stop it, insisting the material can in fact be recycled, and a judge struck down the ban. Last week, an appellate court denied the city’s motion to appeal.
abrera said his proposal, which is still being drafted, will cover stiff foam used in packaging for appliances, in addition to the softer stuff restaurants commonly use to dish out food.
Fred Read, the general manager of Plastic Recycling Inc. in Indianapolis, said his company is willing to buy New York’s old foam for $9 million a year.
“It takes material out of the landfills,” he said. “That’s a nice economic and environmental win for everybody here in the city.”
Though many business owners have already made the switch away from foam, others griped using different materials would cost them too much.
“What we’re asking the mayor is, listen, you disagreed, we took you to court, we won. You disagreed with the judge, you appealed it, and they denied your appeal,” said Robert Jackson, head of the Restaurant Action Alliance, an industry-backed group, and a former Councilman. “Now, let’s sit down and make it work.”
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Murphy Urges Senate To Vote On Bill To Ban Microbeads
Dec 8, 2015 | The Hill - Regulation
By Lydia Wheeler
Sen. Chris Murphy (D-Conn.) is calling on his colleagues in the Senate to follow in the footsteps of the House and pass legislation to ban plastic microbeads from soaps and body washes.
“Microbeads are tiny plastic particles that go down our drains right into our lakes, rivers, and oceans,” he said in a news release. “For much of Connecticut, that means they end up in Long Island Sound, polluting the water and harming plants and animals.
Murphy said Connecticut has taken serious steps to protect its waterways, but one state can’t solve the problem alone.
“It’s a national problem that needs a national solution,” he said.
The House passed the The Microbead-Free Waters Act of 2015, by a voice vote on Monday. The legislation would phase polyethylene and polypropylene microbeads out of personal care products, including toothpaste, and preempt states from issuing their microbead regulations.
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EPA Aims to Propose E-Manifest User Fee in Spring
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
The Environmental Protection Agency plans to propose by spring 2016 a user fee regulation for its national electronic manifest system to track hazardous waste shipments, an agency official said Dec. 8.
The proposed rule, which will set out the methodology the agency is proposing to set fees, is under final agency review and will next go the White House Office of Management and Budget for consideration, said Ryan Gross, an environmental scientist at EPA.
All parties involved in the transportation of hazardous waste must use a complicated set of paper forms to track the waste's chain of custody to ensure its proper handling and disposal. The new e-system, expected to affect about 160,000 waste handlers, should reduce the burden to industry by 300,000 to 700,000 hours annually and save industry and states $75 million a year, according to the EPA.
Use of the e-Manifests will be voluntary, but the EPA has said it plans to promote them as much as possible as they are expected to improve access to high-quality data and increase transparency for the community.
Simple as Possible
In developing the user fee rule, EPA has aimed to keep the fee structure as simple as possible to accomplish full recovery of costs of the e-Manifest, and set costs related to the type of activity involved, Gross said.
Regulated users of the manifest system will pay fees while states and members of the general public who access the manifests will not, he said.
In October 2012, President Obama signed the Hazardous Waste Electronic Manifest Establishment Act (Pub. L. No. 112-195), which authorized the EPA to establish an electronic manifest system.
The first regulation under the act was published in 2014, when the EPA released a rule authorizing the use of electronic manifests under the Resource Conservation and Recovery Act (11 DEN A-19, 1/16/14).
Commercial Transactions
The e-Manifest must not hinder commercial transactions and the chain of custody process, said Tony Arabia, an EPA official. The system will begin functioning in March or April 2016, and Arabia said he hopes volunteers will submit live data before the fee rule is in effect. This will help development of the system in many ways, including better assessment of initial fees and improved future biennial reporting, Arabia said.
The agency hopes to have the e-Manifest operating by spring 2018, Barnes Johnson, director of the Office of Resource Conservation and Recovery in the EPA's Office of Land and Emergency Management, said at an Oct. 29 hearing held by the House Energy and Subcommittee on Environment and the Economy (210 DEN A-6, 10/30/15).
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Scientists Identify Key Characteristics Of Human Carcinogens
Dec 9, 2015 | Chemical Watch
By Philip Lightowlers
A group of government and university scientists, mainly from the US, have published a method for identifying and organising human carcinogens, based on ten key characteristics – mechanisms commonly exhibited by known human carcinogens.
The characteristics were identified by two expert workshops, hosted by the International Agency for Research on Cancer (Iarc) in Lyon, in 2012.
A paper just published in Environmental Health Perspectives explains how these can be used to identify likely carcinogens, based on data from literature studies, and then organise them according to mechanistic effects.
The ten characteristics of human carcinogens are that they:
act as an electrophile, either directly or after metabolic activation;
be genotoxic;
alter DNA repair or cause genomic instability;
induce epigenetic alterations;
induce oxidative stress;
induce chronic inflammation;
be immunosuppressive;
modulate receptor-mediated effects;
cause immortalisation of cells, by inhibiting senescence or natural cell death; and
alter cell proliferation, cell death, or nutrient supply.
The scientists go on to apply the characteristic to two known human carcinogens: benzene and polychlorinated biphenyls (PCBs).
A literature search on the two compounds recovered over 1,800 mechanistic studies for benzene and almost 3,900 for PCBs. To make the searches more efficient, the authors used a programme called the Health Assessment Workplace Collaborative (Hawc) Literature Search tool.
Using the ten characteristics, the collected information can be organised to evaluate the supporting evidence for mechanistic events as a function of dose, species and timing. The results give an overview, which can provide guidance for further assessments of the literature to produce hypotheses or adverse outcome pathway networks.
Benzene exposure was related to eight of the ten characteristics, the authors report, while PCBs related to seven. They observed that the less chlorinated PCBs were associated with characteristics similar to benzene (metabolic activation, DNA damage, cellular proliferation), but the dioxin-like PCBs were associated primarily with receptor-mediated activities.
The authors also note that Iarc working groups have recently found that evidence exists for five characteristics being involved in malathion carcinogenicity, including genotoxicity, oxidative stress, inflammation, receptor-mediated effects and cell proliferation or death. Three have also been identified in DDT carcinogenicity: immunosuppression, receptor-mediated effects and oxidative stress.
“Mechanistic data may provide evidence of carcinogenicity, and can play a role in up- or downgrading of an evaluation, based on cancer findings in animals,” the authors conclude. A comprehensive literature search and categorisation approach, they add, will help in assessing the overall strength of mechanistic data for carcinogenetic hazard.
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Site for Self-Reporting Environmental Violations Launched
Dec 9, 2015 | BNA Daily Environment Report
By Renee Schoof
An online system for companies to self-disclose environmental violations and resolve some routine issues automatically without penalties will be available from the Environmental Protection Agency on Dec. 9.
The eDisclosure system modernizes the agency's 1995 audit policy and allows businesses to get routine disclosures resolved faster, the agency said in a Federal Register notice to be published Dec. 9.
The EPA acknowledged in the notice that a large number of self-disclosed violations over the years “has taxed the agency's ability to promptly resolve all pending disclosures.”
The EPA in 1995 issued the audit policy, which provides incentives such as reduced or waived penalties if regulated entities voluntarily disclose and correct environmental violations, and since then regulated businesses increasingly have conducted environmental audits to correct violations before government inspectors discover noncompliance. The agency said it receives hundreds of disclosures annually.
The new system streamlines the audit policy and the small business compliance policy, which also provides incentives for disclosures. The EPA outlined the plans during webinars in June (115 DEN A-4, 6/16/15).
Two Categories of Self-Disclosure
The new system sets up two categories for automated treatment.
Category One includes certain routine violations of the Emergency Planning and Community Right-to-Know Act (EPCRA) violations, which requires reporting on hazardous substances. The system automatically will issue an electronic notice of determination confirming that the violations are resolved with no penalties assessed, as long as the report is accurate and complete. More than half of audit policy disclosures have been under EPCRA.
Category Two covers other certain violations of EPCRA and the Comprehensive Environmental Response, Compensation and Liability Act that are not covered in Category One. For these disclosures, the system automatically issues an acknowledgement letter that says the EPA will determine eligibility for a reduced penalty if and when it considers taking enforcement action. The agency said it would screen Category 2 disclosures for serious matters such as criminal conduct and imminent hazards.
To use the system, companies must register to file, submit a disclosure within 21 days of when a potential violation was discovered, and certify the violations have been corrected, and policy conditions have been met.
The system does not change the agency's New Owner Policy Implementation, which addresses environmental violations at newly acquired facilities and has been in force since 2008. Pre-existing new owner disclosures will be resolved manually, not through eDisclosure. New owners may use the system to disclose future violations, but doing so will not provide consideration under the new owner policy. For that, the EPA will manually process disclosures.
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Continuous Monitoring Touted for TCE: Scientist
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
Short-term exposure to trichloroethylene that has migrated into indoor air through vapor intrusion is a newly discovered public health concern, and continuous monitoring technology is the preferred way to handle it, a scientist said.
“TCE is the hottest topic in vapor intrusion right now,” Blayne Hartman, a scientist with Hartman Environmental Geosciences, said during a webinar sponsored by Bloomberg BNA Dec. 7.
That is because two regional offices of the Environmental Protection Agency recently released guidance showing that small amounts of TCE, over short exposure times, can cause heart defects in fetuses, especially in the first trimester.
Pregnant women who are exposed to TCE for as little as a 24-hour period can be at risk, according to the guidance from EPA Regions 9 and 10.
But most sampling for TCE is done by passive sampling, Hartman said. With passive sampling, a collector—such as a piece of charcoal—is put into each room to be monitored and compounds of interest passively migrate and adsorb onto the collector, he told Bloomberg BNA after the webinar. If the collector sat in a room for 14 days, it would yield only one sample, he said.
Continuous Sampling Devices
But Hartman is trying to get the word out that continuous sampling devices are available. One device can measure TCE levels in 10 rooms by taking “grab” samples every 10 minutes and producing hundreds of samples in two weeks.
TCE is one of the most common chemicals found in vapor intrusion, which refers to the migration of chlorinated solvents from groundwater and soil into overlying buildings. Contaminated indoor air is a potential health concern.
Interest in TCE also has increased because the EPA's final guidance on vapor intrusion, released in June by the Office of Land and Emergency Management (formerly the Office of Solid Waste and Emergency Response), places an emphasis on monitoring for short-term exposure (113 DEN A-21, 6/12/15).
High Cost of Monitoring
In the guidance from the regional offices, the EPA recommended that businesses and schools near TCE plumes use passive sampling and take one sample over 21 days at a cost of about $10,000 per location, Hartman said.
“I think that's because EPA can't get the data they really want, which is every 24 hours,” he said. “But that would cost hundreds of thousands of dollars, which EPA realizes isn't feasible,” he told Bloomberg BNA.
With passive monitoring, TCE levels could spike at night, when students and workers are not there, giving false positives, he said. But more importantly, monitoring for only 21 days isn't enough, he said. “The idea has been that if you've looked at a building for a month, that's long enough, but that's not the case,” he said.
Continuous analyzers can provide data on TCE every 10 minutes at 15 to 30 locations in a building “forever,” and provide “real-time” alerts and graphics, he said.
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US EPA Extends DfE Antimicrobial Pesticide Pilot
Dec 8, 2015 | Chemical Watch
The US EPA has extended its Design for the Environment (DfE) labelling programme's antimicrobial pesticide pilot to 3 May 2016. This aims to help “consumers find products that are more toward the green end of the pesticide spectrum.”
The agency renamed the DfE programme Safer Choice and released new eco-logos in March. But it decided to retain the DfE name and logo for antimicrobials. This was because pesticides are regulated under the the Federal Insecticide, Fungicide, and Rodenticide Act (Fifra), Melanie Adams of the Safer Choice programme told delegates at Chemical Watch’s Global Supply Summit in Washington DC.
Under Fifra, she said, you cannot make safety claims on a registered pesticide product, “so actually using the word 'safer' isn't allowed under the current law.”
Products that qualify for the label will have to meet the Safer Choice criteria as well as meeting obligations under Fifra, she said. So registrants will also need to provide test results demonstrating efficacy of their products.
Ms Adams told Chemical Watch that she is unsure whether the pilot will be extended after May next year, or launched as a new programme.
The active ingredients approved so far for use in the antimicrobial pilot programme are:
lactic acid, citric acid, hydrogen peroxide (added in 2009);
ethanol and isopropanol (added in 2012); and
peroxyacetic acid and sodium bisulfate (added in 2015).
According to the EPA, antimicrobial products carrying the DfE label, are among other things:
in the least hazardous classes of EPA’s acute toxicity category hierarchy;
unlikely to have carcinogenic or endocrine disruptor properties;
unlikely to cause developmental, reproductive, mutagenic, or neurotoxicity issues; and
have no outstanding “conditional registration” data issues.
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DOT Oil Pipeline Rules Must Be Changed: National Academies
Dec 9, 2015 | BNA Daily Environment Report
By Rachel Leven
The Transportation Department should strengthen oil pipeline rules given findings that diluted bitumen, heavy petroleum mixed with lighter oils, has greater environmental risks than other crude oils when interacting with the environment, the National Academies of Sciences, Engineering, and Medicine said Dec. 8 in its report on the findings.
The Pipeline and Hazardous Materials Safety Administration, meanwhile, responded that it would take preliminary steps to publicize, receive feedback on and “work to advance” the study's findings. Environmental groups such as the Sierra Club cited the study as another reason to halt the transportation of crude oil, with little outright response from the oil and pipeline industries.
“The recommendations set forth in our report represent a practical and pragmatic approach to mitigating the unique concerns associated with spills of diluted bitumen,” Diane McKnight, who chaired the academies' committee that prepared the report, said in a statement.
The congressionally mandated report's recommendations, which also affects departments such as the Environmental Protection Agency, are targeted at oil-by-pipeline movement but will likely be applicable to other transportation modes such as rail, the report said. Congress mandated the report at least in part in light of the 800,000-gallon Marshall, Mich., dilbit pipeline spill in 2010 where cleanup efforts have occurred for five years.
The Association of Oil Pipe Lines declined to comment on the study, “Spills of Diluted Bitumen from Pipelines: A Comparative Study of Environmental Fate, Effects, and Response.”
Chemical, Physical Properties
While “dilbit” has similar chemical and physical properties as other crudes when being moved inside a transmission line, those characteristics change following a spill into the environment—namely when the oil interacts with the environment over days, an instance known as “weathering.” Weathering leads to increased risks of the oil sinking or submerging into water compared to other crude oils, the report said.
This is problematic in part because there aren't many consistently reliable and effective tools and techniques currently identified to contain, recover or respond to oil that sinks or is submerged, the report said. And generally regulations in place on this issue don't account for the additional risks associated with moving dilbit, it said.
PHMSA should make more stringent its rules regarding oil spill response planning for pipelines through steps such as working with the Environmental Protection Agency and the U.S. Coast Guard to ensure response plans are sufficient, the study said. Additionally, PHMSA should require operators to annually disclose the type and amount of crude oil moved and which pipeline moves it, it said.
There are also a number of actions and research areas recommended, including the National Oceanic and Atmospheric Administration building predictive modeling work on dilbit transport by pipelines and EPA developing an adhesion standard for dilbit.
Next Steps
PHMSA told Bloomberg BNA it plans to take a number of steps in response to report. Those steps include:
• issuing a related advisory bulletin regarding the study's findings and offering voluntary improvements for onshore oil pipeline operators to improve their spill response plans;
• holding a public workshop in 2016 to hear how to improve its oil spill response rules for pipelines;
• addressing the study's recommendations with related offices such as the National Response Team; and
• working with the industry to address preparedness and response issues.
Environmentalists meanwhile praised the report, and said it showed crude oil transportation by any method is too dangerous.
“Transporting crude oil by any means is unacceptable and a disaster waiting to happen,” Lena Moffitt, director of the Sierra Club's Dirty Fuels campaign, said in a statement. “The National Academies of Science, Engineering, and Medicine study further underlines the inherent danger surrounding the transportation of crude oil. The only means to guarantee our safety is to continue moving towards 100% clean and renewable energy, and leave dirty fuels where they belong—in the ground.”
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Oil Spill Lawsuits Seek Pipeline Inspection Records
Dec 9, 2015 | BNA Daily Environment Report
Environmental Defense Center and Santa Barbara Channelkeeper filed a pair of lawsuits Dec. 7 to push the pace of federal agency responses to Freedom of Information Act requests about oil pipeline inspection records and related information (Envtl. Def. Ctr. v. Pipeline and Hazardous Materials Safety Admin., C.D. Cal., No. 2:15-cv-09433, 12/7/15 and Envtl. Def. Ctr. v. Bureau of Safety and Envtl. Enforcement, C.D. Cal., No. 2:15-cv-09436, 12/7/15). The FOIA requests were filed after a May 19 oil spill from a Plains Pipeline LP line on the coast of California. The activist groups filed the lawsuits in the U.S. District Court for the Central District of California after they did not get responses as quickly as they wanted from federal onshore and offshore pipeline regulators. The complaints are available at http://bit.ly/1M1iuUZ and http://bit.ly/1XZu0qN.
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Texas Proposals on Fracking Draw Industry Support
Dec 9, 2015 | BNA Daily Environment Report
By Nushin Huq
The oil and gas industry said it liked the Texas Railroad Commission's proposed rules on unconventional fracture-treated fields because they streamline regulations for horizontal wells used in hydraulic fracturing, according to comments filed with the commission and posted on Dec. 7.
The proposed rules would amend the Texas Administrative Code sections 3.5, 3.31, 3.38, 3.40, 3.45, 3.51, 3.52 and 3.86, which relate to drilling activities such as filing applications and deepening, reentering and plugging back wells. They also address spacing issues, well densities, assignment of acreage to pooled development and proration units, oil allowables, oil potential test forms required, oil well allowable production and horizontal drainhole wells.
The rules were originally written for vertical wells and adjusted for horizontal wells on a case-by-case basis, Christi Craddick, one of three commissioners at the agency, told Bloomberg BNA. The proposed amendments would codify regulations specific to horizontal wells across the state (214 DEN B-1, 11/5/15).
The Texas Railroad Commission is the state agency charged by the state legislature with regulating the oil and gas industry.
The Texas Oil and Gas Association, Texas Independent Producers and Royalty Owners Association, the Permian Basin Petroleum Association and the Alliance of Energy producers filed a joint comment thanking the agency for the amendments, which they said would streamline regulations for horizontal development and productions. The groups also recommended that the agency should clarify that in a hearing the burden of proof should lie with the proponents of a field amendment.
Land Surveyors
The Texas Society of Professional Surveyors asked the commission to hold a public hearing on the proposed rules, but it did not raise any concerns when it filed comments.
The proposed rules outline plat, or survey, requirements and allow professional engineers to certify documents pertaining to those boundaries.
Some of those who filed comments told the commission that professional engineers would not have the training or knowledge to oversee boundary issues.
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Colorado's Fracking Battle Goes Before State Supreme Court
Dec 9, 2015 | AP (in the Houston Chronicle)
By Dan Elliott
Colorado's loud public battle over fracking goes before the state Supreme Court on Wednesday when the justices hear arguments about whether local governments can ban the technique.
Fracking, or hydraulic fracturing, helped set off an energy boom in Colorado. It also stirred up a fight over the potential dangers to the environment, public health and property values.
Two cases are before the Supreme Court on Wednesday: a ban on fracking in Longmont and a five-year moratorium in Fort Collins. The oil and gas industry sued both cities and won in the lower courts.
Whatever the Supreme Court decides, it probably won't be the final word. Fracking critics are also asking voters and state regulators to rein in the oil and gas industry and could take the fight to the Legislature.
Things to know about the fight:
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WHY FRACKING MATTERS:
Fracking injects a high-pressure mix of water, sand and chemicals to break open underground formations. Combined with other drilling techniques, it opened up previously inaccessible oil and gas reserves, boosting Colorado's economy. The industry says it's safe, but critics worry about danger to the environment and public health from spills and leaks. Others say around-the-clock noise, lights and fumes from drilling rigs make their homes unlivable as oilfields overlap with growing communities.
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THE COURT CASE:
Longmont voters banned fracking inside the city in 2012, and Fort Collins voters approved a five-year moratorium in 2013. The Colorado Oil and Gas Association sued, and lower courts threw out the bans. Both cities appealed, and the Supreme Court will listen to oral arguments on Wednesday.
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THE BIG PICTURE:
Oil and gas have traditionally been regulated only by state government in Colorado, but Longmont, Fort Collins and other local governments are challenging that. Energy companies prefer state control — it means they have only one set of rules to worry about, and state law says regulators' job is to foster energy development, not prevent it.
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WHAT'S NEXT:
The Supreme Court probably won't reach a decision for weeks or months, and even then it might not be a definitive ruling. The justices could send one or both cases back to the lower courts to reconsider. If that happens, the question would wind up before the Supreme Court again sometime later.
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OTHER BATTLEFIELDS:
The Supreme Court isn't the only place Colorado's fracking war is being fought. The industry is putting up a stiff fight before the Oil and Gas Conservation Commission, the state's rule-making agency, over proposals to give local governments a consulting role but not veto power on drilling sites. A group called Coloradans for Community Rights wants to put a constitutional amendment on the 2016 ballot that would give local governments the right to regulate oil and gas, which is sure to bring a powerful counter-campaign from the industry. Another group, 350 Colorado, wants the Legislature to replace the Oil and Gas Conservation Commission with two agencies, one to protect residents from the effects of oil and gas and another to encourage renewable energy.
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McCarthy: Clean Power Plan ‘Will Stand Test of Time’
Dec 9, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's Clean Power Plan “will stand the test of time” despite an array of legal challenges to the rule, Administrator Gina McCarthy said in a speech at the international climate negotiations in Paris.
“First, it's based on science and the law,” McCarthy said Dec. 8 according to a transcript of her remarks as prepared. “Second, when I go out on the road to cities and towns across the U.S., it's crystal clear that the American people want climate action. I see it at the community level all the way up through polls at the national scale.”
McCarthy called the Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits on power plants in each state, “the single biggest step America has ever taken to fight climate change.” The rule is the backbone of President Barack Obama's domestic efforts to curb greenhouse gases while his administration attempts to broker the first truly international agreement on climate change at the Paris talks, which are scheduled to conclude Dec. 11.
“At EPA, we're using the regulatory authority that congress gave us to reduce greenhouse gas emissions, taking advantage of technological advancements and spurring the next generation of climate solutions,” McCarthy said. “We're partnering with communities on the ground. And we're collaborating across all levels of government and sectors of industry. We are using every tool in our toolbox, and there are many.”
Despite McCarthy's optimism, the Clean Power Plan has faced significant pushback from states and industry groups opposed to the rule. The attorneys general of 27 states as well as several utilities, unions and industry groups have brought lawsuits to overturn the Clean Power Plan. Another 18 states and several environmental groups have intervened on behalf of the EPA.
Opponents of the rule have sought to have it stayed during litigation, arguing the Clean Power Plan imposes immediate burdens on state regulators and utilities who must make decisions now on how best to achieve the EPA's carbon dioxide standards before they go into effect in 2022.
States, Environmental Groups Oppose Stay
However, states and environmental groups supporting the EPA argued that a stay would be unwarranted in responses filed in the U.S. Court of Appeals for the District of Columbia Circuit Dec. 8 (West Virginia v. EPA, D.C. Cir., No. 15-1363, responses filed 12/8/15).
Opponents of the rule are unable to show irreparable and immediate harm will befall them if the rule is allowed to go into effect during litigation because states can have up to three years to develop compliance plans—or opt out and allow the EPA to write a plan—and the first emissions reductions are not required from utilities until 2022, the environmental groups including the Natural Resources Defense Council, Sierra Club and Environmental Defense Fund, said in their response.
“Movants can cite no case in which this court (or any other) has stayed agency action when the required compliance was so remote in time, or when sources’ actual obligations remained to be determined,” the environmental groups said. “The rule does not require any emission limitations until 2022. Once in effect, emission reductions will phase in gradually through 2030, allowing each state to determine an optimal ‘glide path' for compliance.”
States supporting the EPA, including New York and California, argued that the rule does not usurp state authority but instead builds upon a cooperative federalism model that has been successfully employed for other Clean Air Act regulations.
“Far from intruding on state sovereignty or coercing state governments, the rule sets reasonable limits on carbon-dioxide pollution from fossil-fuel power plants—just as previous EPA rules have limited other forms of pollution from these same power plants,” they said. “The rule allows states the option of implementing the emission limits themselves—through a broad range of possible approaches—or opting out of regulation completely, in which case EPA will directly regulate the power plants. Under either approach, states will continue, as before, to exercise any traditional regulatory oversight they have to review and approve power plant decisions to comply with the rule.”
The EPA filed its opposition to the stay Dec. 3 (233 DEN A-8, 12/4/15).
Petitioners' final replies are due by Dec. 23.
The Kansas City Board of Public Utilities is the most recent party to challenge the EPA's rule in a petition for review filed Dec. 8.
Despite the opposition, McCarthy said she remains confident the rule will survive both legal and political challenges and that the Clean Power Plan will demonstrate the U.S.'s leadership on climate change.
“A large majority of Americans see climate change as a serious threat and they support the policies in our Clean Power Plan—even in places you wouldn't expect,” she said. “States, utilities, and communities are working together to get the process started on compliance plans. That's how we know our actions will stand the test of time, no matter what happens politically.”
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Sixth Circuit Hears Oral Arguments on Water Rule
Dec 9, 2015 | BNA Daily Environment Report
By Pat Ware
Predicting that judicial authority over a rule seeking to refine the reach of the Clean Water Act will ultimately be decided by the U.S. Supreme Court, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit heard oral arguments Dec. 8 on whether it is the appropriate venue to hear challenges to the rule (In re EPA, 6th Cir., 2015 BL 333498, MDL No. 135, oral arguments, 12/8/15).
Opponents of the Clean Water Rule, or “waters of the U.S.” rule issued in June by the Environmental Protection Agency and the U.S. Army Corps of Engineers generally think challenges should be heard at the district court level, not the appeals courts.
Arguing on behalf of 18 states and several industry groups that want the Sixth Circuit to dismiss the case over lack of jurisdiction, Ohio State Solicitor Eric Murphy told the panel that challenges to the rule rightfully belong in district courts under the Clean Water Act.
With the rule, the agencies are attempting to broadly expand their power but narrowly restrict the judicial review opportunities available for those challenging it, Murphy said, adding that the U.S. Supreme Court has twice rejected agency efforts to enlarge their authority beyond what the act allows.
Statute and precedent reflect that the jurisdiction to redress harm caused by the rule lies with the district courts, he said.
In October, the Sixth Circuit issued a nationwide stay on the rule that will remain in place until it settles the question of whether an appellate or a district court has jurisdiction to hear challenges to the clean water rule (197 DEN A-1, 10/13/15).
The Sixth Circuit said that its stay on the rule would allow for “more deliberate determination” of whether the administration's rule is “proper” under federal law.
Wasting Judicial Resources
The EPA and the corps along with seven states—Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington—and the District of Columbia and a coterie of environmental groups are requesting that the Sixth Circuit retain jurisdiction.
Martha Mann, an attorney with the U.S. Department of Justice, told the court that giving district courts jurisdiction would be akin to wasting judicial and party resources, resulting in substantial delays in resolving challenges to the rule.
Moreover, the argument that jurisdiction lies in the district courts under Section 509(b)(1)of the Clean Water Act is misplaced, she said, citing precedent in Sackett v. EPA (132 S. Ct. 1367, 73 ERC 2121, 2012 BL 67234 (2012)), in which the Supreme Court held that a compliance order issued by the EPA prior to taking civil enforcement action was indeed subject to judicial reviews. Sackett, she said, does not turn on whether original jurisdiction was in the district courts versus the appeals courts, but on whether the challenged agency action was reviewable at all.
Jurisdictional Questions
Jurisdictional questions arise because the Clean Water Act is unclear as to where challenges to rules under that statute should be heard, attorneys have said, leading to multiple complaints and challenges filed in the district and appellate courts (235 DEN A-4, 12/8/15).
Section 509 (b)(1) of the Clean Water Act allows challenges to effluent limits and permit issuance or denials to be heard in appellate courts.
Appellate Judge David McKeague asked Mann why Congress gave “such convoluted instruction” with regard to the judicial review process under the Clean Water Act.
Mann said that while the phrasing could, perhaps, be clearer, with regard to the Clean Water Rule, the act's less-than-artful wording “does not take it out of the 509 bucket.”
McKeague also asked her whether the current U.S. Supreme Court would read this language practically or textually, noting this is the judicial panel that will eventually settle the question.
Mann said the high court would probably take a practical rather than constrained approach to the judicial review provisions in the act.
Should Not Stand
Murphy said that given the rule's “manifest illegality” and harm to the states, it should not be allowed to stand.
Judge Richard Allen Griffin asked Murphy if the court shouldn't be compelled to follow precedent set by Nat'l Cotton Council v. EPA (6th Cir. 2009) where the Sixth Circuit ruled on the validity of a final rule issued by the EPA under the Clean Water Act .
The nationwide scope and importance of the Clean Water Rule seems to support a centralized review in the courts of appeals, said Griffin.
When asked by McKeague why district court consideration of the rule is preferable to appellate scrutiny, Murphy said more reviews would clarify the rule by allowing several courts to consider it.
The Eleventh Circuit also will be considering the court's jurisdiction question during oral arguments on Feb. 22 (219 DEN B-1, 11/13/15).
Attorneys agree that the ban on the rule that the U.S. District Court for the District of North Dakota imposed on 13 states in late August will still be in effect if the Sixth Circuit finds that an appellate court has no jurisdiction over hearing challenges to the clean water rule (North Dakota v. EPA, 2015 BL 277809 (2015); 173 DEN A-11, 9/8/15)
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Judges Signal WOTUS Case Belongs In Appeals Court
Dec 8, 2015 | E&E News PM
By Tiffany Stecker
Federal judges today appeared leaning toward keeping lawsuits challenging the Obama administration's controversial Waters of the U.S. rule in an appeals court rather than district courts across the country as requested by the regulation's challengers.
A three-judge 6th U.S. Circuit Court of Appeals panel heard arguments on the narrow question of whether challenges to the rule -- which seeks to establish which streams and wetlands qualify for federal Clean Water Act protections -- belong in appeals courts or district courts.
Opponents of the rule -- 18 states, plus agricultural and industry groups -- argue district courts have jurisdiction over the cases. They contend that the WOTUS rule does not meet specific criteria in the Clean Water Act that authorizes cases to be filed directly to appellate courts.
Ohio's solicitor, Eric Murphy, representing the states challenging the rule, said the Clean Water Act defines seven factors under which a case must go to an appellate court. However, the broad coverage of the WOTUS rule leaves it outside of the eligible criteria in Section 509(b)(1) of the law for being heard in an appellate court, he said.
The rule "encompasses the full scope of the Act," Murphy said.
The administration's lawyers argued the opposite in hopes of keeping the cases in appellate court, where they will proceed more swiftly.
Justice Department Attorney Martha Mann, representing U.S. EPA and the Army Corps of Engineers, relied on a 6th Circuit ruling in 2009's National Cotton Council v. EPA as the basis for the appeals court jurisdiction.
That case, which upheld EPA's regulation of pesticide spraying over water under the Clean Water Act, went directly to appellate court -- bypassing district courts -- because it dealt with the regulations of effluent, which covers two of the seven factors for an appeals court hearing.
Judge Richard Griffin, a President George W. Bush appointee, appeared to side with that reasoning.
"I see it as a holding, and it's a holding I'm bound by," he said.
Murphy responded that the National Cotton Council case concerned a regulation, rather than a rule that would affect the reading of the Clean Water Act as a whole, like the WOTUS rule.
Judge David McKeague, another Bush appointee, asked if the appeals court would serve as a better venue for a rule with a nationwide application.
"You wouldn't dispute that, would you?" asked McKeague.
"I would absolutely dispute that," Murphy responded emphatically.
Murphy added that the Clean Water Act allows cases to be heard in appeals court that result in "action by the [EPA] administrator."
McKeague disagreed.
"It doesn't say the administrator alone," he said. The rule was jointly developed by EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. It was finalized in May.
In her argument, Mann acknowledged the placement of the case in appellate court did not follow the norm for Clean Water Act disputes.
"The vast majority of EPA's Clean Water Act docket is in district court," she said.
Judge Damon Keith, a President Carter appointee, also presided at the arguments.
The 6th Circuit is expected to rule quickly on the jurisdiction issue in the coming months.
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It's Power Of The Purse Time In Congress
Dec 9, 2015 | The Hill - Contributors
By Rick Manning
The final touches of the omnibus funding bill are being put into place, and it is imperative that conservative House and Senate members provide leadership with a pathway to get their votes and that the leadership reaches out to conservatives for that guidance before it is set in concrete.
Unfortunately, the spending levels have been set too high, rightfully causing great distress amongst conservatives, but that is water under the bridge at this juncture. The only question on the table is: How will the money be spent?
If conservative members don't provide leadership with a set of policy de-funds that, if included, will win their vote, and if leadership isn't actively engaging them, then the funding bill will be subject to the exact kind of deal-making with the Democrats that led to former Speaker John Boehner's (R-Ohio) demise. What's worse, the last significant opportunity to use the power of the purse to stop President Obama's extreme agenda will be lost.
Let's be clear: Obama only has 13 months left in his presidency and this funding bill covers ten of them.
If pausing Middle Eastern refugee resettlement to the U.S. while providing for their care closer to home is a priority, then conservatives should promise leadership that they will vote for the bill if that and some other key policy riders are included.
If stopping Obama's destruction of the electricity grid through his war on coal is a priority, then conservatives should push for the defunding of his two power plant rules, the Boiler MACT (Maximum Achievable Control Technology) rule, the wood-burning stove regulation, ending cozy enviro-funding sue-and-settle deals, and stop the $3 billion Green Climate Fund expenditure to buy support from developing nations for the Paris climate treaty. While they were at it, they should defund the fracking regulations that are designed to enable local environmental groups to bury energy-producing companies in lawsuits, killing the industry that has brought us low-priced gasoline with a thousand paper cuts.
If stopping Obama's fundamental transformation of America is a priority, then conservatives should defund his Department of Housing and Urban Development rule, known as "Obamazoning," that overrides local zoning based upon federal Census maps, and stop the administration's efforts to criminalize speech using the IRS, Securities and Exchange Commission, Federal Election Commission, Federal Communications Commission and Department of Justice. They should also keep the current de-fund of Obama's attempt to give away control over the Internet, and rein in Obama's use of his executive powers to remove public land from development using the power of the purse, as a de-fund included in the House Interior Appropriations bill by Rep. Rob Bishop (R-Utah) would do. And join House Judiciary Committee Chairman Bob Goodlatte's (R-Va.) effort to stop Justice Department lawsuit settlements from compelling companies to fund the next generation of ACORN, as occurred in the Bank of America settlement.
And if preventing Obama from tipping the scales in favor of Big Labor is a priority, then ending the Occupational Safety and Health Administration (OSHA)'s walk-around rule; the National Labor Relations Board's (NLRB) attack on the business franchise model through its joint employer standard; as well as the NLRB's establishing quickie union elections, along with hamstringing employers from getting help on how they can legally communicate with their employees in an organizing situation, is a must.
In just the past few months, Obama has issued Labor Department guidance that puts the thumb on the scale in favor or private pensions and 401(k) plans investing in socially conscious or politically correct investment funds, and through the fiduciary rule, Obama is trying to drive out small investment advisers in favor of the Wall Street bigwigs.
These are just a few examples of things that leadership and conservative members should be able to work together on to reestablish Congress's Article One constitutional authority.
In 2015, these type of riders are the new earmarks. Rather than add goodies to the basket, this omnibus will likely be the last chance to substantially rein in Obama's regulatory onslaught on our nation's freedom. It would be a shame if the Republican majority in Congress failed to seize this opportunity to stop some significant parts of Obama's agenda. And for those conservatives courageous enough to provide leadership a pathway to get their vote, it is up to leadership to get as much of its to-do list done as possible.
With Obama's time in office dwindling, Congress must assert its authority on as many matters as possible. The stakes are too high to allow petty differences get in the way of stopping Obama's fundamental transformation from becoming a reality.
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Power Companies, States Urge Court To Keep Climate Rule Alive
Dec 8, 2015 | E&E News PM
By Robin Bravender
Stopping U.S. EPA's climate change rules for power plants could hurt utilities investing to crack down on their greenhouse gas emissions, a coalition of energy companies told a federal court today.
A broad coalition of utilities, states and others have asked the court to issue a stay halting the Obama administration's Clean Power Plan while litigation plays out. But several power companies including NextEra Energy Inc., Calpine Corp., Pacific Gas and Electric Co., and Southern California Edison Co. today urged judges to keep the rule in place.
In a filing with the U.S. Court of Appeals for the District of Columbia Circuit, the power companies that described themselves as "forward-thinking" said halting the rule would "only deepen uncertainty about when and how power-sector CO2 emissions will ultimately be regulated" and would "cause harm to the power companies and others who are investing in clean generation technology today in anticipation of future CO2 regulation."
The power companies that filed the brief today supporting EPA represent nearly 100,000 megawatts of generating capacity and serve customers in 19 states.
The power companies told the court that the agency's foes have incorrectly complained that they'll be immediately harmed by the power plant regulations "because the rule requires nothing of affected sources until 2022 (at the earliest)," they wrote. "Because there are still more than six years before the rule actually requires any reductions from the affected units, movants can wait until the court decides this case on the merits, if they choose, before seeking the necessary permits and financing to build any new capacity that may be needed to achieve the rule's goals."
The mammoth lawsuit challenging EPA's Clean Power Plan pits 27 states and a wide range of industry interests, labor groups, power companies and others against the agency and its supporters. Backing EPA in the lawsuit are 18 states, environmental groups, supportive power companies and others.
Utilities, states and others opposed to the rule have warned the court they'll be immediately and irreparably harmed if the rule isn't stopped in its tracks.
In their request to stay the rule, utility challengers wrote in October that EPA's rule requires states to "restructure the nation's energy industry by reducing the electricity generated by certain types of facilities (primarily coal-fired power plants) and by shifting that generation to EPA-favored facilities (e.g., wind and solar facilities) that emit less CO2." That shift, they warned, "will substantially increase costs to the public and jeopardize the reliability of the nation's electricity system."
The 18 states supporting EPA -- along with several cities and a county -- also warned the court against issuing a stay today, citing harm their states would face and symbolic impacts in international climate negotiations.
"State intervenors have faced significant harms and costs from climate change for many years," the states led by New York Attorney General Eric Schneiderman (D) said in their filing with the court. EPA's state supporters wrote that the states challenging the rule "have fallen far short of showing harm that is 'both certain and great'" or imminent, because "the rule gives states flexibility to meet its deadlines without incurring overly burdensome costs or making irreversible decisions."
And, the states added, as international climate negotiations continue in Paris, "a stay of the rule -- a fundamental plank of our country's pledge to cut carbon pollution -- could prejudice the United States' ability to convince other countries to implement an international agreement to reduce carbon emissions."
The states defending EPA's rule are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington. Several cities and a county are also backing the agency in the lawsuit, including the District of Columbia; Boulder, Colo.; Chicago; New York; Philadelphia; South Miami, Fla.; and Broward County, Fla.
EPA urged the court to keep its rule in place in a filing last week (E&ENews PM, Dec. 3).
A coalition of environmental and public health groups also urged the court to deny efforts to stay the rule in a filing today; renewable energy industry groups filed a separate motion also asking the court to allow the rule to move ahead.
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Federal Climate Data Too Disconnected, GAO Says
Dec 9, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The federal government could do a better job connecting information on climate change and its impacts to the people that need it, according to a new report from the Government Accountability Office.
Federal climate change observations and projections have typically been spread out across different agencies. Lately, the White House has tried to bring that data together into one place on data.gov, but the GAO says it is still not fully meeting the information needs of public and private sector decision makers looking to build resilience into their infrastructure planning (54 DEN A-18, 3/20/14).
Often, these planners are unaware that climate information exists or unable to use what is available. A perceived lack of readily available federal data and tools may also be preventing businesses from preparing for the long-term effects of climate change, a White House advisory panel recently found (229 DEN A-6, 11/30/15).
“Good information should be available to decision makers at the local, state and federal levels, so as to better prepare for the impacts of climate change,” Sen. Maria Cantwell (D-Wash.), who along with two other congressmen asked the GAO to study the issue, said in a statement Dec. 8.
National System Needed
The GAO is calling for a kind of climate data czar—from either an existing or new federal agency—that could provide direction and funding to otherwise fragmented information-gathering. Groups outside the government, such as nonprofits, could then be enlisted to translate the data for decision makers, who may not know how to use it on their own, it said.
The GAO pointed to well-established climate information systems in Germany, the Netherlands and the United Kingdom as potential models.
Ultimately, having a national system of authoritative climate data “may make it easier for federal, state, local, and private sector decision makers to justify the costs of incorporating climate change information into planning efforts, thereby reducing long-term federal fiscal exposure,” it said. According to an analysis included as part of the president's fiscal year 2016 budget request, over the last decade, extreme weather events and fires have cost the federal government more than $300 billion—and that price tag is expected to climb as rare events become more common and intense due to climate change (22 DEN B-3, 2/3/15).
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Cruz Hearing Attempts to Cast Doubt on Climate Science
Dec 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
Sen. Ted Cruz (R-Texas), a leading Republican candidate for president, attempted to cast doubt on the near-unanimous scientific consensus that human activity significantly contributes to climate change Dec. 8 during a Senate Commerce, Science and Transportation subcommittee hearing.
Democrats on the Space, Science and Competitiveness Subcommittee said the hearing wasted committee resources, ignored decades of scientific evidence and called Cruz “out of touch” with nearly everyone else in the world.
Cruz, who chairs the subcommittee, said environmental policy in the U.S. should follow “actual science” and not “political and partisan claims.” He criticized “global warming alarmists” and the “climate industrial complex” for what he said was exaggerating “political theory” about the risks of climate change.
“Facts matter, science matters, data matter,” Cruz said. “What does it say when members of the United States Senate are protesting, ‘How dare the Science subcommittee in the United States Senate hear testimony from scientists about actual science?' ”
Three of the four Republican witnesses were scientists who disagree with the views of 97.2 percent of climate scientists who believe human activity plays a major role in climate change. The other Republican witness was Mark Steyn, a political commentator, and the sole Democratic witness was David Titley, a former naval officer and National Oceanic and Atmospheric Administration official who now works at Penn State University.
Six Democratic senators attended the hearing, while two Republicans—Sens. Steve Daines (Mont.) and Cory Gardner (Colo.)—joined Cruz.
Democrats Slam Hearing
At a news conference before the hearing, Democratic Sens. Tom Udall (N.M.), Brian Schatz (Hawaii) and Ed Markey (Mass.) said Republicans in Congress were the last remaining group in the world where the science of climate change was apparently unsettled. The group had just returned from an overseas trip to ongoing international climate negotiations in Paris (see related story).
“The only thing that requires a thorough scientific investigation is why Sen. Cruz is having a hearing on climate science,” Markey said. “This is no longer debate across the entire planet. They're all there. The last group of deniers are the Republican Congress.”
Democrats pointed to significant support within the scientific, military and business communities for the need to address the problem. They said even if there was uncertainty about aspects of the science, the evidence still showed it was prudent to take steps to address climate change.
“Knowing that there's more to learn shouldn't stop us from acting on what we know now,” Sen. Gary Peters (D-Mich.), ranking member of the subcommittee, said at the hearing. “We must discuss and determine what actions we need to take to limit the serious risks we face. There are many things we can do that are not just good for our environment, but good for our economy.”
New Sanders Bills
On the same day as Cruz's hearing, one of the leading candidates for the Democratic presidential nomination—Sen. Bernie Sanders (I-Vt.)—introduced two bills that he said would drive $500 billion in clean energy investments by 2030.
The American Clean Energy Investment Act of 2015 (no number) and the Clean Energy Worker Just Transition Act (no number) would allocate $41 billion to help oil, gas and coal workers as the country shifts from fossil fuels and both would be paid for by repealing subsidies and ending certain corporate tax breaks.
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