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ACC AM Dec 11
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(ACC Mentioned) Plastic Bottle Recycling In U.S. Tops 3 Billion Pounds
Dec 11, 2015 | Plastics News
By Anne Marie Mohan
Plastic bottle recycling grew 97 million pounds in 2014, increasing 3.3%, to top 3 billion pounds for the year, according to figures released jointly today by the Association of Plastic Recyclers (APR) and the American Chemistry Council (ACC). The recycling rate for plastic bottles climbed 1.0% to 31.8% for the year. -
(ACC Mentioned) US Oct PE Exports Soar As Producers Move More Offshore
Dec 10, 2015 | ICIS News
By Lane Kelley
US October polyethylene (PE) exports rose by solid double-digit percentages for all of the major grades as producers continued to rely on moving material offshore, according to government data released during the week. PE exports are ahead for the year to date in all three grades as exports have become a major relief valve for producers... -
(ACC Mentioned) Industries, Advocates Raise Varied Challenges To EPA Solid Waste Rule
Dec 10, 2015 | InsideEPA
By Suzanne Yohannan
Groups representing various industry sectors and environmentalists are calling on the U.S. Court of Appeals for the District of Columbia Circuit to vacate varying aspects of EPA's definition of solid waste (DSW) rule, finalized earlier this year, with industry seeking to loosen certain requirements where it alleges EPA has overreached... -
(ACC Mentioned) U.S. To Ban Soaps And Other Products Containing Microbeads
Dec 11, 2015 | Financial Spots
By Norman Tucker
The House of Representatives voted this week to ban the use of microbeads in cosmetics, calling the tiny plastic spheres "unnecessary plastic pollution" in the nation's waterways. "Most people who buy personal care products that contain microbeads are unaware that these tiny bits of plastic seep into waterways, threatening the environment... -
BPA Metabolite Stimulates Fat Cell Formation, Scientists Find
Dec 10, 2015 | Chemical Watch
By Philip Lightowlers
A ubiquitous metabolite of the plastics ingredient, bisphenol A (BPA), has been found to have potentially obesogenic effects in mouse and human cell cultures. There is evidence that BPA has oestrogenic activity and stimulates mammalian cells to become adipose (fat) cells (GBB January 2013). Its major metabolite, bisphenol A... -
President Obama Signs Three Constructive Gun Measures
Dec 10, 2015 | The Washington Post
By David Kopel
The day before Thanksgiving, President Obama signed the National Defense Authorization Act (NDAA), S.1356. The primary purpose of the act was to provide funds for operation of the U.S. military. However, the act also includes several other provisions to protect Second Amendment rights, which the Constitution recognizes to be... -
(ACC Mentioned) House Reauthorizes Freight Rail Oversight Panel
Dec 10, 2015 | The Hill - Transportation
By Keith Laing
The House approved legislation on Thursday to reauthorize the panel of federal regulators that oversees operations on the nation’s freight and passenger railways. The measure extends the federal funding authorization for the Department of Transportation's freight rail panel, which is known as the Surface Transportation Board (STB)... -
(ACC Mentioned) Surface Transportation Board Reauthorization Heads To President's Desk
Dec 11, 2015 | E&E Daily News
By Ariel Wittenberg
The House easily passed a bill to reauthorize the Surface Transportation Board with a quick voice vote yesterday, sending the measure to President Obama's desk. In addition to reauthorizing the STB, S. 808 expands the agency's jurisdiction, increasing the number of board seats from three to five, requiring the agency to report to Congress... -
Fight Over Oil Trains, New York Crude Heating Facility Reaches Court
Dec 10, 2015 | PoliticoPro
By Scott Waldman
The years-long battle over plans for an Albany facility that could see a new type of crude oil hauled through New York by train finally reached the courtroom Thursday. Lawyers for Global Partners, which wants to build a crude oil heating facility at the Port of Albany, squared off with... -
31 Lawmakers Want Seismic Survey Risks Reanalyzed
Dec 11, 2015 | BNA Daily Environment Report
By Alan Kovski
Thirty-one members of Congress sent a letter to an Interior Department official Dec. 10 seeking to block seismic surveys by oil and natural gas companies off the Atlantic Coast. The department's Bureau of Ocean Energy Management should retract the record of decision on an environmental review of possible seismic... -
Exxon Mobil, Others Asked by Democrats About Climate
Dec 11, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Forty-five House Democrats are asking the chief executive officers of Exxon Mobil Corp. and other major fossil fuel companies when they first learned that burning their product contributes to climate change and what they've done with that knowledge since then. In a letter sent earlier this week to Exxon Mobil, along with BP Plc, Chevron Corp... -
House Dems Blast Energy CEOs' 'Campaign Of Deception'
Dec 10, 2015 | E&E - Greenwire
By Robin Bravender
A coalition of 45 House Democrats is demanding answers from oil giants regarding what lawmakers called "a coordinated campaign of deception" aimed at deceiving the public about climate science. The lawmakers today released a letter they sent to the CEOs of Exxon Mobil Corp., Chevron Corp., ConocoPhillips Co... -
Rule Proposed on Oil, Gas Work in Refuges
Dec 11, 2015 | BNA Daily Environment Report
By Alan Kovski
A proposed rule issued Dec. 10 by the U.S. Fish and Wildlife Service would update regulations on oil and natural gas development in national wildlife refuges and include provisions to establish a new permitting process. “The proposed revisions continue to allow for the responsible extraction of oil and gas, but require closer adherence... -
Wildlife Agency Seeks Overhaul Of Refuge Drilling Rules
Dec 10, 2015 | The Hill - E2 Wire
By Timothy Cama
The U.S. Fish & Wildlife Service (FWS) wants to overhaul the way it regulates oil and natural gas drilling on wildlife refuges. The new standards proposed Thursday seek to ensure that old wells are properly plugged, spills are contained, land managers can minimize the impacts of drilling, spills are properly detected and other measures. -
Bipartisan Lawmakers Seek To Halt Seismic Surveys In Atlantic
Dec 10, 2015 | E&E News PM
By Emily Yehle
More than 30 lawmakers are pressuring the Bureau of Ocean Energy Management to halt the permitting process for seismic surveys in the Atlantic Ocean, signaling growing anxiety over how such surveys could affect marine wildlife. Reps. Mark Sanford (R-S.C.) and Bobby Scott (D-Va.) sent a letter to BOEM today with the signatures of 31 colleagues. -
EPA Oil, Gas Methane Rule Spurs Fear Of Economy-Wide Air Permit Mandate
Dec 10, 2015 | InsideEPA
By Stuart Parker
Groups representing the energy, manufacturing and other sectors are warning that EPA's proposed rule to limit the greenhouse gas (GHG) methane from new oil and gas drilling could trigger an economy-wide need for thousands of small emissions sources to obtain Clean Air Act permits and are urging EPA to prevent that outcome. -
EPA Sets Ambitious Agenda For Slew Of Major Water Regulations In 2016
Dec 10, 2015 | InsideEPA
By David LaRoss
EPA is setting an ambitious agenda for pursuing a slew of major water regulations in 2016, including its closely-watched water quality standards for Maine, updates to its National Pollutant Discharge Elimination System (NPDES) governing regulations, and finalizing a pending effluent rule for wastewater from the shale gas industry. -
CERCLA Seen as Playing Role in Environmental Behavior
Dec 11, 2015 | BNA Daily Environment Report
By Pat Ware
Thirty-five years after the Superfund law was enacted, the program is seen as playing a large role in changing environmental behavior in the U.S., speakers said during a Dec. 10 webinar. “Whatever one thinks of it, one thing it's done is changed corporate behavior in a very concrete way,” said Joel Gross, a partner with Arnold & Porter. -
White House More Optimistic on Omnibus
Dec 11, 2015 | BNA Daily Environment Report
By Cheryl Bolen
The White House is now optimistic that a year-long omnibus appropriations bill will be finished the week of Dec. 14, so long as Republicans drop their most controversial policy riders. The administration's concern with the omnibus continues to center on “ideological riders” in the budget process, White House press secretary Josh Earnest said.
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(ACC Mentioned) Plastic Bottle Recycling In U.S. Tops 3 Billion Pounds
Dec 11, 2015 | Plastics News
By Anne Marie Mohan
Plastic bottle recycling grew 97 million pounds in 2014, increasing 3.3%, to top 3 billion pounds for the year, according to figures released jointly today by the Association of Plastic Recyclers (APR) and the American Chemistry Council (ACC). The recycling rate for plastic bottles climbed 1.0% to 31.8% for the year.
The 25th annual National Post-Consumer Plastics Bottle Recycling Report marks the 25th consecutive year that Americans have increased the pounds of plastic bottles collected for recycling since the survey began in 1990.
Trends highlighted in the report include: Single-stream collection of household recyclables continues to grow, resulting in higher participation ratesUse of plastic bottles in packaging applications is expanding but offset by continued lightweighting and increased use of concentrates with smaller, lighter bottlesLack of access to away-from-home recycling continues to be a barrier to increased collection
During 2014, the collection of high-density polyethylene (HDPE, #2) bottles—a category that includes milk jugs and bottles for household cleaners and detergents—rose to nearly 1.1 billion pounds, a gain of over 62 million pounds from 2013.The recycling rate for HDPE bottles rose to 33.6%.
A higher percentage of all post-consumer plastic bottle material was processed by domestic reclaimers in 2014. Exports of all post-consumer plastic bottles rose slightly (in pounds) but fell to the lowest percentage of exports in six years (21.9%) as the amount of bottles collected increased faster than did exports, according to the report. The drop in exports may reflect the strength of the U.S. dollar and growth in domestic reclamation capacity.
U.S. reclamation capacity for HDPE increased to its highest level ever in 2014. Exports of HDPE bottles rose from 15.6% to 19.7% (218 million pounds) of domestically collected material, and domestic reclaimers processed approximately 951 million pounds of HDPE bottles in 2014.
“The message to American consumers is that plastic bottles are valuable resources even after they’ve been used,” says Steve Alexander, Executive Director of APR. “Americans generated an estimated $730 million in recycled plastic bottles in 2014. The simple act of recycling helps generate local revenue, supports recycling jobs, and enables us to continue to benefit from these useful resources.”
Adds Steve Russell, Vice President of Plastics for the ACC, “This report clearly illustrates 25 years of year-over-year growth in recycling plastic bottles. Plastics help reduce energy use and conserve resources—and after use, these efficient products and packages are increasingly valued as recycled materials. We’re confident that plastics recycling will continue to grow, and we will continue working to accelerate that growth.”
This year’s survey also found that the collection of polypropylene (PP, #5) bottles jumped 28.3% for the year to reach 79.5 million pounds, as the collection rate sprang to 44.9%. Domestic processing of post-consumer PP bottles grew to 65.3 million pounds.PP bottles deliberately recycled as PP (instead of blended with HDPE) rose from 44.2 million pounds in 2013 to 45.6 million pounds in 2014. ADVERTISEMENT
Although PP caps, closures, and non-bottle containers are widely collected for recycling in the U.S., these data are presented in a separate report on recycling non-bottle rigid plastics, which will be released in the coming months. Until then, see the 2013 Rigids Recycling Report.
Together, PET and HDPE bottles continue to make up nearly 97% of the U.S. market for plastic bottles, with PP comprising 1.9%, low-density polyethylene 0.8%, and polyvinyl chloride 0.4%.
Data on PET recycling referenced in the report were separately funded and published by APR and the National Association for PET Container Resources (NAPCOR) in a separate report entitled, 2014 Report on Postconsumer PET Container Recycling Activity.
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(ACC Mentioned) US Oct PE Exports Soar As Producers Move More Offshore
Dec 10, 2015 | ICIS News
By Lane Kelley
US October polyethylene (PE) exports rose by solid double-digit percentages for all of the major grades as producers continued to rely on moving material offshore, according to government data released during the week.
PE exports are ahead for the year to date in all three grades as exports have become a major relief valve for producers because of weakened domestic demand from falling oil prices.
Producers have been rolling or cutting prices for most of the year, selling material in the export market that cannot be sold domestically. Producers tried to raise monthly contract prices in October and November but delayed the hikes in response to market feedback.
High density (HDPE) exports increased by 55% in October year on year because of across-the-board gains to most destinations except Canada, according to the data from the US International Trade Commission (ITC).
Low density (LDPE) exports rose by 26%, with most of the gain coming from increased shipments to China, Canada and South America.
Linear low (LLDPE) exports soared 72% from increased cargoes to Latin America, China, Israel and Turkey.
Industry export data for October as reported by the American Chemistry Council (ACC) showed exports to be 7% lower. A big difference between the two data sets is that one is collected by industry (ACC) while the other is collected by the government (ITC).
Major US PE producers include Chevron Phillips Chemical, LyondellBasell, Dow Chemical, ExxonMobil, Westlake Chemical, INEOS, Total, Nova Chemicals and Formosa Plastics.
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(ACC Mentioned) Industries, Advocates Raise Varied Challenges To EPA Solid Waste Rule
Dec 10, 2015 | InsideEPA
By Suzanne Yohannan
Groups representing various industry sectors and environmentalists are calling on the U.S. Court of Appeals for the District of Columbia Circuit to vacate varying aspects of EPA's definition of solid waste (DSW) rule, finalized earlier this year, with industry seeking to loosen certain requirements where it alleges EPA has overreached and environmentalists arguing certain exemptions from hazardous waste requirements exceed EPA's authority.
In opening briefs in the consolidated lawsuit American Petroleum Institute (API) v. EPA., the two sets of parties take contrary views on whether EPA's DSW rule -- a revision spurred by earlier litigation brought by environmentalists -- is too strict or too lax.
"EPA's regulations unlawfully and arbitrarily assert [Resource Conservation & Recovery Act (RCRA)] authority over materials that are not discarded," industry parties say in their Dec. 9 opening brief. Industry petitioners are API, Utility Solid Waste Activities Group, National Association of Manufacturers, American Chemistry Council and energy resource company Freeport-McMoRan.
On the same day, environmental petitioners represented by Earthjustice filed their opening brief, arguing the rule exceeds EPA's authority by including a "verified recycler exclusion," which allows companies who meet certain criteria to avoid strict hazardous waste requirements. The environmental petitioners are Sierra Club, Counsel for California Communities Against Toxics, Clean Air Council, Coalition for a Safe Environment and Louisiana Environmental Action Network.
At issue is EPA's DSW rule, promulgated last January. The long-awaited rule responds to earlier litigation by environmental groups over a Bush-era rule and attempts to close what EPA saw as regulatory gaps in the 2008 version of the rule by mandating use of all four of the agency's criteria for determining that recycling of hazardous waste is legitimate, rather than just two under the Bush-era rule.
It also eliminates a transfer-based exclusion from the solid waste definition, replacing it with a stricter "verified recycler exclusion," allowing those who meet certain criteria an alternative to meeting strict hazardous waste requirements.
In addition, the final rule affirms the legitimacy of pre-2008 DSW exclusions, but industry attorneys have said EPA is nonetheless imposing new requirements on these recyclable materials.
According to EPA's supporting documents for the 2015 rule, the rule also "retains the exclusion [from the solid waste definition] for recycling under the control of the generator, including recycling on site, within the same company, and through toll manufacturing agreements." Exempting hazardous secondary materials from the definition of solid waste also exempts them from hazardous waste regulation under RCRA.
Industry's Arguments
The two sets of briefs detail a host of legal issues being raised in the litigation.
The industry petitioners assert that EPA oversteps its RCRA authority in the rule by imposing requirements on materials not discarded, pointing to EPA's mandatory legitimacy factors.
In particular, they say the required legitimacy factors "exceed EPA's statutory authority because they (1) impose handling, storage, and chemical-composition standards on non-discarded materials; and (2) deem the reuse or recycling of many non-discarded, in-process materials to be 'sham recycling' because, e.g., the materials are reused or recycled in a different process than the one that generated them," the brief says.
Further, they argue the agency "unlawfully applied the legitimacy factors to pre-2008 exclusions without record support, and to used-oil recycling without notice and contrary to statute."
In their brief, the industry parties argue the rule subjects all "hazardous secondary materials" -- including material under pre-2008 exclusions -- to the legitimacy factors, illegally regulating materials that have not been discarded. RCRA is limited to materials that have been discarded, the brief says, pointing to case law.
One of the legitimacy factors, in effect, imposes EPA specifications for handling and storing material that has not been discarded, making the type of storage "the 'dividing line between "waste" and nonwaste', without any connection to the concept of 'discard,'" the brief says, citing the 2000 D.C. Circuit ruling in Association of Battery Recyclers v. EPA. In that case, the court ruled the agency had exceeded its jurisdiction when it attempted to regulate secondary materials from mining and mineral processing as solid waste, with the court finding that at least some of the materials were destined to be reused in a continuous industrial process.
The industry parties also take issue with the decision to replace the 2008 rule's transfer-based exclusion with the verified recycler exclusion. Under this measure, secondary hazardous material must be sent to a "'verified reclamation facility,'" the brief says. These facilities must either possess a RCRA subtitle C hazardous waste management permit, or have gone through an alternative pre-approval process for obtaining a variance, it says.
While the exclusion "purports to define 'solid waste' in the context of secondary materials sent to third parties for reclamation, at least two of its conditions bear no reasonable relation to 'discard,'" the industry parties say. Instead, they say, those conditions affirmatively regulate materials such as petroleum refinery catalysts that have not been discarded, "thus effectively rendering the exclusion a 'sham' definition of 'solid waste,'" they say.
Underlying EPA's overreach is its presumption that all materials sent off-site to other parties for reclamation have not been discarded, they say. But this is not valid as it conflicts with the court's 2003 ruling in Safe Food & Fertilizer v. EPA "that mere transfer of secondary materials for recycling is not a good indicator of 'discard' . . .”
The industry parties also say EPA oversteps RCRA authority, as well as its historical position dating back to 1985, when it asserts RCRA authority over off-specification fuels and other products used in a typical manner, or further processed for use. "Thus, manufacturers may be compelled to prove that their products are products," they say.
They ask the court to vacate assertions of RCRA jurisdiction over non-discarded materials and to vacate the legitimacy factors that assert jurisdiction over such materials. They also ask the court to vacate the rule's authority over secondary materials that meet the conditions of the verified recycler exclusion with certain exceptions, and to vacate EPA's RCRA authority over commercial chemical products used in their normal manner or reclaimed for use.
Environmentalists' Arguments
Environmentalists also take issue with the verified recycler exclusion, saying it is unlawful and arbitrary, but take a contrary position to industry's.
They say their litigation "challenges a new exclusion that stretches the statutory definition of solid waste beyond the breaking point by exempting hazardous wastes as not discarded even when the owners of these wastes must pay to have [them] hauled . . . away.”
They say paying for having the waste removed indicates the company has discarded the substances in "an ordinary sense of the word.”
"By excluding hazardous wastes from RCRA's definition of solid waste -- and therefore from regulation under RCRA -- EPA exceeds its authority and violates the plain meaning of the statute," the environmental groups say in their brief. "EPA's argument that hazardous wastes are not wastes so long as their owners comply with certain conditions that EPA placed on the Verified Recycler Exclusion must be rejected under the first step of Chevron analysis.”
Environmentalists say they are also challenging "EPA's decision to leave dozens of outdated exclusions on the books and unchanged even after the agency became aware that these exclusions lack the minimum requirements necessary to prevent the unlawful discard of hazardous wastes.”
These exclusions refer to 32 exclusions from rulemakings issued prior to 2008. The environmental petitioners say these allow hazardous wastes to avoid RCRA regulation in the absence of additional requirements. In the 2011 draft rule, EPA stated that these exclusions "lack the 'minimum requirements necessary' to prevent the unlawful discard of hazardous waste, and solicited comment on whether to revise them," the environmentalists say. But EPA did not make changes on these in the final rule -- an action that was not legal and was arbitrary, they say. The environmental groups ask the court to vacate the verified recycler exclusion and the pre-2008 exclusions.
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(ACC Mentioned) U.S. To Ban Soaps And Other Products Containing Microbeads
Dec 11, 2015 | Financial Spots
By Norman Tucker
The House of Representatives voted this week to ban the use of microbeads in cosmetics, calling the tiny plastic spheres "unnecessary plastic pollution" in the nation's waterways. "Most people who buy personal care products that contain microbeads are unaware that these tiny bits of plastic seep into waterways, threatening the environment and ultimately our health", Pallone said in a statement after the vote. Ingested plastic could deprive animals of nutrients and get lodged in their stomachs, according to a 2013 study found in the Marine Pollution Bulletin.
"These plastic microbeads often end up polluting waters - including the St. Lawrence River and Lake Ontario - because many waste water treatment plants can not screen them". The American Chemistry Council also welcomed the passage of the Microbead-Free Waters Act of 2015, describing the legislation as "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".
The bill was sent to the Senate on December 8, where it will be reconciled with a similar bill introduced in May 2015 by Sens. The new law restricts the manufacture of personal care products containing such microbeads effective December 31, 2017 and bans the sale of personal care products containing the material beginning December 31, 2018.
Examples of cosmetics and other consumer products that contain microbeads, as well as those that do not contain them, is available here. While some states are taking action, the strongest legislation - and the ultimate solution to this environmental scourge - is a federal ban. Unsafe microbeads found in cosmetics and hygiene products like toothpaste and body wash could soon be a thing of the past in the United States. IL was the first state to ban microbeads in 2014, and since then, at least six other states have done the same.
Colorado, Connecticut, Indiana, Maine, Maryland, New Jersey and Wisconsin followed with their own bans, while California, Minnesota and OH are considering them. Fortunately several major manufacturers, like Procter & Gamble, Unilver, and Colgate-Palmolive, plan to phase out the use of microbeads, Consumerist reports.
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BPA Metabolite Stimulates Fat Cell Formation, Scientists Find
Dec 10, 2015 | Chemical Watch
By Philip Lightowlers
A ubiquitous metabolite of the plastics ingredient, bisphenol A (BPA), has been found to have potentially obesogenic effects in mouse and human cell cultures.
There is evidence that BPA has oestrogenic activity and stimulates mammalian cells to become adipose (fat) cells (GBB January 2013). Its major metabolite, bisphenol A β-D-glucuronide (BPA-G), is rapidly formed and excreted from the body and was thought to be biologically inactive.
But Canadian government researchers from Health Canada’s Environmental Health Science and Research Bureau, Ottawa, have now found that BPA-G can also stimulate the differentiation of fat cells. Like BPA and related compounds, such as BPA diglycidyl ether (BADGE), it may also play a role in promoting obesity (CW 29 May 2012).
In a paper published in the journal Environmental Health Perspectives, the scientists explain that the presence of BPA-G in cell cultures induced the expression of messenger RNA and protein markers. These markers indicate that the cells have differentiated into adipose cells.
The researchers also found that the addition of an oestrogen receptor (ER) antagonist, called ICI, to the cultures prevented the response, even though BPA-G does not bind with the receptor.
The authors say the activity of the substance needs to be further investigated as it is the dominant BPA metabolite. They conclude their results suggest that it “may be acting through a non-classical oestrogen receptor action or an as yet unidentified pathway”.
BPA-G might also induce effects through binding other nuclear receptors such as the glucocorticoid (GR), androgen (AR) and peroxisome proliferator activated receptors (PPARs).
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President Obama Signs Three Constructive Gun Measures
Dec 10, 2015 | The Washington Post
By David Kopel
The day before Thanksgiving, President Obama signed the National Defense Authorization Act (NDAA), S.1356. The primary purpose of the act was to provide funds for operation of the U.S. military. However, the act also includes several other provisions to protect Second Amendment rights, which the Constitution recognizes to be “necessary to the security of a free State.”
These reforms demonstrate that, although Congress is not interested in banning guns, or in banning gun owners based on secret blacklists, Congress and the president can work together to enact common-sense reforms.
Prohibiting an administrative ban on lead ammunition
The first measure, in Section 315 of the NDAA, prohibits an administrative ban on lead ammunition. The Toxic Substances Control Act gives the Environmental Protection Agency administrator broad authority to outlaw almost any “chemical substance.” The TSCA’s definition of “chemical substance” contains several exclusions, including “any mixture,” pesticides, tobacco, food and drugs. The exclusions are premised in part on the fact that there are other federal laws for specific regulation of these items. 26 U.S. Code sect. 2602(B).
Among the items that are excluded are firearms and ammunition. The exclusion in 2602(B)(v) is for “any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986 [26 U.S.C. 4181] (determined without regard to any exemptions from such tax provided by section 4182 or 4221 or any other provision of such Code).” This cross-references the federal excise tax is 10 percent for “Pistols. Revolvers” and 11 percent for “Firearms (other than pistols and revolvers). Shells, and cartridges.”
As a result, the EPA cannot use the TSCA to prohibit ammunition. However, some groups have petitioned the EPA to ban the lead “component” in all ammunition. After the Obama EPA declined to do so, the groups sued in federal court and lost. The NDAA amendment makes it clear that the TSCA exclusion of ammunition also applies to ammunition components. As amended, TSCA now reads: “(v) any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986 [26 U.S.C. 4181] (determined without regard to any exemptions from such tax provided by section 4182 or 4221 or any other provision of such Code), and any component of such an article (limited to shot shells, cartridges, and components of shot shells and cartridges)”. (New language in italics.)
The amendment does not in any way reduce the ability of state or federal wildlife agencies to restrict the use of lead ammunition in hunting, where necessary for environmental reasons. The amendment does prevent any future EPA administrator from banning lead ammunition entirely.
Allowing military personnel to protect themselves
This summer, a jihadist attacked military recruiting stations in Chattanooga, Tenn. In 2009, a jihadist attacked the Fort Hood military base in Texas. He murdered 13 unarmed victims and wounded 30. The military personnel there were defenseless, so the criminal was not stopped until military police arrived. Section 526 of the NDAA takes a first step toward remedying the dangerous disarmament of our armed forces:
SEC. 526. Establishment of process by which members of the Armed Forces may carry an appropriate firearm on a military installation.
Not later than December 31, 2015, the Secretary of Defense, taking into consideration the views of senior leadership of military installations in the United States, shall establish and implement a process by which the commanders of military installations in the United States, or other military commanders designated by the Secretary of Defense for military reserve centers, Armed Services recruiting centers, and such other defense facilities as the Secretary may prescribe, may authorize a member of the Armed Forces who is assigned to duty at the installation, center or facility to carry an appropriate firearm on the installation, center, or facility if the commander determines that carrying such a firearm is necessary as a personal- or force-protection measure.
This requires the creation of a system by which commanders “may” authorize personnel to carry firearms. Whether they would actually do so may depend on the views of the commander in chief. During the presidential election, voters should inform themselves about what potential presidents would do with Section 526. It should be recognized that the dysfunctional bureaucratic policy of mandating that the armed forces be unarmed long pre-dates the Obama administration and has existed under presidents of both parties.
Sale of surplus handguns to the public
Since 1905, the federal Civilian Marksmanship Program has provided for the sale of some (non-automatic) military surplus firearms to the public. In 1996, the program was mostly privatized, but the Defense Department was required to continue to provide certain surplus arms to the program. 36 U.S. Code sect. 40728. Citizens may receive the arms only after going through the same procedures as are required for any other retail firearms purchase, including extensive paperwork and background checks. NDAA Section 1087 sets up a procedure allowing the transfer of up to 10,000 surplus handguns to the CMP. These handguns are .45-caliber model “1911” pistols (named for their year of invention). For the military, these pistols have been replaced by the 9mm Beretta. The 1911 pistols are now collectors items, being warehoused at a cost of $200,000 per year. Selling them via the CMP will reduce this expense and raise revenue.
Although the gun control debate is often polarized, Congress and President Obama have demonstrated that common-sense reforms are still possible. Kudos to them.
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(ACC Mentioned) House Reauthorizes Freight Rail Oversight Panel
Dec 10, 2015 | The Hill - Transportation
By Keith Laing
The House approved legislation on Thursday to reauthorize the panel of federal regulators that oversees operations on the nation’s freight and passenger railways.
The measure extends the federal funding authorization for the Department of Transportation's freight rail panel, which is known as the Surface Transportation Board (STB), until 2020.
The bill, the first STB since the panel was created in 1980, was approved in a voice vote by the House on Thursday. A similar measure has already been approved by the Senate, meaning the measure goes now to President Obama's desk. The legislation increases the STB's membership from three to five members and gives the panel greater authority to proactively review compliance with federal regulations.
Supporters of the measure said it is important for the federal government to properly oversee the nation's freight railways, although the industry was legally deregulated in the 1980s.
“The STB plays an important role in ensuring a balanced, fair regulatory environment for both the railroads and its customers, but the agency hasn’t been reauthorized or reformed since it was created,” House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) said in a statement.
“This bill makes common sense improvements to increase the efficiency of the agency’s processes and decision-making, and ensures that the successful U.S. freight rail transportation system is not smothered by unnecessary regulatory burdens,” Shuster continued.
“These much-needed reforms give the STB the ability to be responsive and effective as they work with our railroads to ensure safe and efficient transportation for goods and passengers nationwide,” House Railroads, Pipelines, and Hazardous Materials Subcommittee Chairman Jeff Denham (R-Calif.) added.
Railroads and shippers praised lawmakers for renewing the freight rail oversight panel on Thursday.
"In reauthorizing the Surface Transportation Board for the first time since the agency was created, Congress has clearly stated the critical need for railroads to be able to earn the revenues to build, maintain, and further modernize the nation's 140,000-mile privately-owned rail network," Association of American Railroads President Ed Hamberger said in a statement.
"These investments are needed to meet current and future freight transportation demands," Hamberger continued. "This legislation strikes the right balance of preserving a market-based structure for shippers and railroads, while also providing commonsense process improvements that will allow the STB to work more efficiently."
Industries that rely on freight railroads to ship their products to markets were equally as effusive about the House vote to reauthorize the surface transportation board on Thursday.
“We applaud the House for listening to the growing concerns of freight rail customers and passing legislation that will modernize the nation’s freight rail policies," the American Chemistry Council said.
"The bill passed today will help ensure American manufacturers, energy producers and farmers have greater access to competitive and reliable freight rail service," the chemistry group continued.
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(ACC Mentioned) Surface Transportation Board Reauthorization Heads To President's Desk
Dec 11, 2015 | E&E Daily News
By Ariel Wittenberg
The House easily passed a bill to reauthorize the Surface Transportation Board with a quick voice vote yesterday, sending the measure to President Obama's desk.
In addition to reauthorizing the STB, S. 808 expands the agency's jurisdiction, increasing the number of board seats from three to five, requiring the agency to report to Congress every three months on "unfinished regulatory proceedings," and encouraging freight railroads and shippers to use voluntary arbitration to solve disputes more swiftly.
The measure also would allow the board to initiate its own investigations into the freight-rail industry, a contrast to current rules that allow the STB to investigate an issue only if a formal complaint has been filed.
"The bill we consider today would streamline and simplify regulatory activities, something that is a hallmark of this Congress," House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials Chairman Jeff Denham (R-Calif.) said on the floor. "The STB is now overseeing a strong railroad industry, and this bill would help the STB better support its customers."
Subcommittee ranking member Mike Capuano (D-Mass.) noted that the STB has not been reauthorized or reorganized since it was created in 1995.
"That's ridiculous," he said. "It's about time we did it, and I'm happy that I am here today to participate."
This is the second bipartisan transportation-related reauthorization passed in the past week. Congress passed a bipartisan five-year highway reauthorization bill Dec. 3 after a decade of short-term measures (E&E Daily, Dec. 4).
On the floor, Capuano joked about how uncharacteristic the agreements on both bills had been, saying, "I am getting sick and tired of agreeing with my colleagues."
"This is what transportation issues are supposed to be: bipartisan, thoughtful and relatively easy to pass," he said.
The bill's passage was applauded by both railroads and their customers yesterday.
"Congress has clearly stated the critical need for railroads to be able to earn the revenues to build, maintain, and further modernize the nation's 140,000-mile privately-owned rail network," Association of American Railroads President Ed Hamberger said in a statement. "This legislation strikes the right balance of preserving a market-based structure for shippers and railroads, while also providing commonsense process improvements that will allow the STB to work more efficiently."
The American Chemistry Council also thanked lawmakers for moving on the bill, saying the legislation "will modernize the nation's freight rail policies."
"It's clear there is a widespread consensus among Congress that the status quo is not working and that our country's freight rail policies need to be updated," the statement said.
The bill passed the Senate in June and now heads to the president's desk.
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Fight Over Oil Trains, New York Crude Heating Facility Reaches Court
Dec 10, 2015 | PoliticoPro
By Scott Waldman
The years-long battle over plans for an Albany facility that could see a new type of crude oil hauled through New York by train finally reached the courtroom Thursday.
Lawyers for Global Partners, which wants to build a crude oil heating facility at the Port of Albany, squared off with lawyers for the Department of Environmental Conservation just a short walk from where dozens of oil tanker cars back up each day waiting to unload at the port.
The DEC has delayed making a final decision on the project for more than two years, and Global has sued in an effort to force a decision. The court could compel the state to make a decision, which could then trigger another lawsuit from either Global or the project's opponents, depending on how the state decides.
Global wants to build a crude heating facility at the port to offload heavier crude oil in winter months — a project that could open the state up to the tar sands crude from western Canada that environmentalists have called one of the dirtiest fossil fuels on the planet.
State officials initially issued preliminary permits for the project, but in May they issued a notice to reverse that decision — though they have yet to follow through.
In court on Thursday, Global attorney Jeffrey Baker said the state had engaged in “legal hocus pocus” to put the project in limbo and was dragging its feet for political reasons. State officials must decide one way or another on Global’s application, he said; they cannot simply put off a decision indefinitely.
“We have a right to request a permit,” he said. "The state does not have a right to refuse to act on that application.”
DEC attorney Sue Taylor said the state was still reviewing Global’s application, which had changed substantively since it was first submitted.
“The process is working as it should. We just disagree as to how long that process is going to take,” she said.
Justice Roger McDonough compared the delay to the Cuomo’s administration years-long reluctance to make a final decision on fracking. He said he was reluctant to impose an arbitrary deadline for the DEC to decide on the crude-heating facility, but he also questioned the state’s unwillingness to adhere to any sort of timetable.
“The court is concerned about open-ended deadlines,” he said.
The proposal to put the crude heater in Albany is being watched nationally.
Under Cuomo, New York has become a major hub for crude transportation by rail. Already dozens of oil trains are shipping light, sweet crude from the Bakken region of North Dakota and Montana through New York each week.
The heating facility Global wants to build would open New York, and the Hudson River, up to another major type of crude — the heavier tar sands crude. In the wake of battles of pipelines and the Obama administration's rejection of the Keystone pipeline, those tar sands crude producers are increasingly turning to rail to ship their products.
Earlier this year, senior DEC officials met privately with Albany-area elected officials to tell them that it was legally difficult to challenge the project because they had purview only over the air permits.
Some elected leaders noted that the project could have a major effect on a nearby public housing complex.
In the end, DEC officials agreed that the housing project was a primary reason the project warranted closer scrutiny, though Global may reject that argument in court since state officials already approved the project.
The court is likely to rule in Global's case early next year.
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31 Lawmakers Want Seismic Survey Risks Reanalyzed
Dec 11, 2015 | BNA Daily Environment Report
By Alan Kovski
Thirty-one members of Congress sent a letter to an Interior Department official Dec. 10 seeking to block seismic surveys by oil and natural gas companies off the Atlantic Coast.
The department's Bureau of Ocean Energy Management should retract the record of decision on an environmental review of possible seismic testing in the Atlantic and revise it based on studies that focus on negative impacts from seismic work, the letter said.
The letter was addressed to BOEM Director Abigail Ross Hopper and signed by both Republicans and Democrats, with Reps. Mark Sanford (R-S.C.) and Bobby Scott (D-Va.) taking the lead.
The lawmakers made it clear they opposed Atlantic seismic surveys and the possibility of Atlantic oil and gas drilling, which BOEM has tentatively proposed to allow after a 2021 lease sale.
“Seismic testing and oil drilling will put the coastal economy and way of life at risk, due to industrialization of the coast, daily impacts and regular spills from oil drilling activities, and possible catastrophic accidents like the Deepwater Horizon disaster,” the letter said.
Some Lawmakers Seek Seismic Work
BOEM, as the leasing agency for oil and gas work on the Outer Continental Shelf, completed the record of decision for a programmatic environmental impact statement in 2014 on possible seismic work in the Atlantic. Several members of Congress have pushed the agency to get on with issuing permits for seismic work, which could set the stage for oil and gas drilling (135 DEN A-19, 7/15/15).
BOEM issues five-year programs for offshore oil and gas leasing, and the next program is to start in July 2017. In January, BOEM released a draft proposed program for 2017-2022 and took much comment on it, especially on the question of holding a lease sale in 2021 to allow exploration off the Atlantic Coast from Virginia to Georgia.
In their comments, associations of oil and gas companies signaled their fears that BOEM would drop the Atlantic leasing from the plan at the behest of environmental advocacy groups and many members of the general public (63 DEN A-1, 4/2/15).
The next step in the process may be BOEM's issuance of a proposed program sometime in 2016.
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Exxon Mobil, Others Asked by Democrats About Climate
Dec 11, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Forty-five House Democrats are asking the chief executive officers of Exxon Mobil Corp. and other major fossil fuel companies when they first learned that burning their product contributes to climate change and what they've done with that knowledge since then.
In a letter sent earlier this week to Exxon Mobil, along with BP Plc, Chevron Corp., ConocoPhillips Co., Royal Dutch Shell Plc and Peabody Energy Corp., the legislators asked a series of questions about the companies' lobbying on climate change, including whether they've done anything to deny climate change or spread uncertainty around the science behind it, and their stance on climate policy.
It also asks how each business is planning for a target to limit rising temperatures that is at the center of ongoing diplomatic talks in Paris toward a global deal to fight climate change (236 DEN A-4, 12/9/15).
Chevron said it “shares the concerns of governments and the public about climate change risks and recognizes that the use of fossil fuels to meet the world's energy needs is a contributor to rising greenhouse gases (GHGs) in the Earth's atmosphere.”
“We believe that taking prudent, practical and cost effective action to address climate change risks is the right thing to do,” the company said in a statement.
Shell said it is reviewing the letter. Representatives for BP, ConocoPhillips, Exxon Mobil and Peabody Energy didn't return requests for comment.
Companies Under Scrutiny
The letter comes after recent media reports suggested Exxon Mobil supported groups that questioned the danger of climate change even as the company's own scientists briefed executives on the threats it could pose. Exxon has repeatedly rejected the claims, which it says are “inaccurate distortions” of its nearly 40-year history of climate research.
New York's attorney general has launched an investigation into whether the company misled investors. Peabody, the world's largest publicly traded coal company, was the target of a similar investigation (217 DEN A-2, 11/10/15).
Other members of the fossil fuel industry were included in an earlier examination by the Union of Concerned Scientists, which said the companies have intentionally spread climate disinformation for decades, including through “forged letters to Congress.”
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House Dems Blast Energy CEOs' 'Campaign Of Deception'
Dec 10, 2015 | E&E - Greenwire
By Robin Bravender
A coalition of 45 House Democrats is demanding answers from oil giants regarding what lawmakers called "a coordinated campaign of deception" aimed at deceiving the public about climate science.
The lawmakers today released a letter they sent to the CEOs of Exxon Mobil Corp., Chevron Corp., ConocoPhillips Co., BP, Royal Dutch Shell PLC and Peabody Energy Corp., asking the executives to respond to allegations that the industry covered up its knowledge about the impacts of fossil fuels' role in climate change.
The Democrats cited recent investigations by the Los Angeles Times, InsideClimate News alleging "that Exxon scientists confirmed fossil fuels' role in climate change decades ago, but top executives decided to hide the truth and instead embarked on a massive campaign of denial and disinformation."
Exxon has disputed the accuracy of reports that it allegedly kept shareholders and the public in the dark about the business threat from climate change.
The lawmakers pointed to a Union of Concerned Scientists investigation concluding that Exxon "was not alone in hiding knowledge of climate change while spreading disinformation about climate science. UCS concluded there was a 'coordinated campaign of deception' on climate science" by Exxon, Chevron, ConocoPhillips, BP, Shell, Peabody Energy and other members of the industry.
The letter sent today -- led by Democratic Reps. Ted Lieu of California and Peter Welch of Vermont -- poses a series of questions to the CEOs, including queries about when their companies became aware that using fossil fuels could result in climate change and whether their companies promoted uncertainty about climate science.
Lieu and Welch began circulating draft text of the letter to their colleagues earlier this year (Greenwire, Nov. 19).
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Rule Proposed on Oil, Gas Work in Refuges
Dec 11, 2015 | BNA Daily Environment Report
By Alan Kovski
A proposed rule issued Dec. 10 by the U.S. Fish and Wildlife Service would update regulations on oil and natural gas development in national wildlife refuges and include provisions to establish a new permitting process.
“The proposed revisions continue to allow for the responsible extraction of oil and gas, but require closer adherence to industry best management practices—especially with respect to abandoned infrastructure and debris,” the service said in announcing the rule.
The issue arises because private owners have retained subsurface mineral rights in some areas where the surface land has been added to a refuge.
The proposed rule (RIN 1018–AX36) is intended to ensure operators reduce the number of spills, contain spills, restore areas damaged by spills, properly plug non-producing wells and remove equipment.
New permitting processes will be developed, and refuge managers will be allowed to prescribe measures to prevent or minimize impacts. Key components of the proposed rule include:
• a permitting process for new operations;
• a permitting process for well-plugging and reclamation for all operations;
• information requirements;
• operating standards;
• fees for new access beyond that held as part of the operator's oil and gas right;
• financial assurance (bonding);
• penalty provisions;
• clarification that the process for authorizing access to properties in Alaska will continue to be controlled by 43 C.F.R. part 36;
• codification of some existing agency policies.
There are more than 1,600 active oil and gas wells in wildlife refuges, according to the service. Most of those are in three refuges in Louisiana, notably 928 active wells in the Upper Ouachita National Wildlife Refuge (164 DEN A-4, 8/25/15).
The proposed rule and a draft environmental impact statement were to be published in the Dec. 11 Federal Register. Public comments will be accepted through Feb. 9. Comments can be filed through the http://www.regulations.gov website by using the docket number FWS-HQ-NWRS-2012-0086.
The Fish and Wildlife Service, an Interior Department agency, estimated the rulemaking would take at least three years to complete.
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Wildlife Agency Seeks Overhaul Of Refuge Drilling Rules
Dec 10, 2015 | The Hill - E2 Wire
By Timothy Cama
The U.S. Fish & Wildlife Service (FWS) wants to overhaul the way it regulates oil and natural gas drilling on wildlife refuges.
The new standards proposed Thursday seek to ensure that old wells are properly plugged, spills are contained, land managers can minimize the impacts of drilling, spills are properly detected and other measures.The current rules regarding oil and gas drilling on refuges it owns are five decades old, and the agency said updates are needed to effectively protect wildlife and their habitats from the impacts of drilling.
“These proposed rule revisions strike an appropriate balance between the rights of owners to develop energy resources with the service’s critical role in protecting refuges and the fish and wildlife that depend upon them,” FWS Director Dan Ashe said in a statement.
“Refuges are national treasures offering unparalleled opportunities for Americans of all ages, means and backgrounds to hunt, fish, hike, boat and just enjoy being outdoors,” he said. “We owe it to this and future generations to meet our mission responsibility.”
Drilling is generally prohibited on the country’s more than 500 wildlife refuges. But when refuge property has been transferred to the federal government from a private owner, the mineral rights sometimes are not transferred, and the owners of those rights maintain the ability to drill.
More than 100 wildlife refuges host nearly 1,700 active wells, in addition to thousands of inactive ones.
The proposed regulation responds in part to a March report from the Interior Department’s inspector general, which found problems in the way FWS oversees drilling in its refuges.
“Due to minimal and vague national guidance, and questions about FWS’ legal authority, FWS’ management of oil and gas development activities on national wildlife refuges is inconsistent,” the watchdog agency wrote.
“Inconsistent management has also left FWS’ refuges littered with orphaned or abandoned oil and gas infrastructure that could threaten the health and safety of wildlife, the safety of refuge visitors, and damage the environment.”
That report also called for a database of FWS wells, something that had been on the agency’s radar since 2003 but not yet implemented.
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Bipartisan Lawmakers Seek To Halt Seismic Surveys In Atlantic
Dec 10, 2015 | E&E News PM
By Emily Yehle
More than 30 lawmakers are pressuring the Bureau of Ocean Energy Management to halt the permitting process for seismic surveys in the Atlantic Ocean, signaling growing anxiety over how such surveys could affect marine wildlife.
Reps. Mark Sanford (R-S.C.) and Bobby Scott (D-Va.) sent a letter to BOEM today with the signatures of 31 colleagues. In all, seven House Republicans and 26 Democrats signed the letter, which calls seismic air gun testing an "enormously disruptive activity in the ocean."
BOEM announced last year that it would allow seismic surveys off the country's East Coast as part of its plan to open the area to offshore drilling. Such surveys enable oil and gas companies to find untapped mineral deposits by using loud underwater air guns.
"The current basis for issuing seismic testing permits is incomplete," Sanford said in a statement. "It does not take into account the long-term effects that seismic testing will have on marine life or the impact on the economy due to industrialization of the coast. Accordingly, we don't think testing that could profoundly affect our coastal communities should be allowed to proceed based on an insufficient study."
Scientists say the surveys affect marine mammals in ways that are still not fully understood, with the potential to mask whale calls and interrupt breeding and feeding (Greenwire, Sept. 8). But until now, environmentalists have primarily led the movement against seismic testing.
Oceana kicked off a grass-roots campaign last year, urging local governments to protest the surveys off their shores. So far, more than 80 cities and counties have passed resolutions opposing or expressing concern over seismic testing or offshore drilling.
Today's letter cites those resolutions, along with a letter earlier this year from 75 scientists that urged the Obama administration to stop the surveys (Greenwire, March 5).
The lawmakers call on BOEM to prepare a new environmental review -- or a programmatic environmental impact statement (PEIS) -- that considers "the true and complete range of impacts." The bipartisan letter also questions whether opening up the coast to oil drilling is the right economic move.
"Along the Atlantic coast, nearly 1.4 million jobs and more than $95 billion in GDP rely on healthy ocean ecosystems, mainly through fishing, tourism, and recreation," the lawmakers write. "Seismic testing and oil drilling will put the coastal economy and way of life at risk, due to industrialization of the coast, daily impacts and regular spills from oil drilling activities, and possible catastrophic accidents like the Deepwater Horizon disaster."
The Republicans who signed the letter all come from coastal states where towns have passed resolutions against seismic testing. In addition to Sanford, they are Florida Reps. Curt Clawson, Ron DeSantis, Bill Posey and Ileana Ros-Lehtinen, as well as New Jersey Reps. Frank LoBiondo and Christopher Smith.
The letter comes about five months after NOAA released applications from four companies for seismic permits in the Atlantic. At the time, the agency said it hoped to finalize them by the end of the year.
The American Petroleum Institute (API), International Association of Geophysical Contractors (IAGC) and National Ocean Industries Association (NOIA) sent a letter to NOAA Administrator Kathryn Sullivan and BOEM Director Abigail Ross Hopper yesterday to "express serious concerns in response to recent efforts that have been made by certain advocacy organizations ... to impede and delay the permitting processes for the proposed Atlantic [outer continental shelf] surveys."
In it, the groups refer to a letter sent in October to BOEM from the Natural Resources Defense Council, the Center for Biological Diversity, Oceana and more than a dozen other groups that called for a new PEIS. The letter pointed to new data that update the distribution of whales and dolphins along the East Coast (Greenwire, Oct. 27).
"[W]e cannot support the unwarranted and unlawful delay of the pending applications," API, IAGC and NOIA wrote. "The primary organizations advocating for this delay have a well-established history of using the regulatory and litigation processes as means to impede and ultimately attempt to prevent any activities from occurring because they are fundamentally opposed to all offshore oil and gas activities."
It is unclear how today's letter from both Republicans and Democrats will affect the process. Claire Douglass, campaign director at Oceana, asserted that it "highlights the intense opposition along the East Coast to offshore oil exploration in the Atlantic Ocean."
"New scientific studies show that using seismic air gun blasting to find subsea oil and gas deposits off the East Coast will cause even greater harm to marine animals than previously predicted," she said, later adding: "Oceana urges the Obama administration to withdraw these deeply flawed environmental studies to allow seismic air gun blasting for oil and gas in the Atlantic."
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EPA Oil, Gas Methane Rule Spurs Fear Of Economy-Wide Air Permit Mandate
Dec 10, 2015 | InsideEPA
By Stuart Parker
Groups representing the energy, manufacturing and other sectors are warning that EPA's proposed rule to limit the greenhouse gas (GHG) methane from new oil and gas drilling could trigger an economy-wide need for thousands of small emissions sources to obtain Clean Air Act permits and are urging EPA to prevent that outcome.
"EPA has not addressed the possible permitting implications that would flow from the direct regulation of methane," says the American Petroleum Institute (API) in Dec. 4 comments on the proposed new source performance standards (NSPS) rule. API warns of "unintended implications" from the methane cap that could include triggering air law prevention of significant deterioration (PSD) and Title V permitting for "all sources, not just oil and natural gas sources.”
Requiring economy-wide permitting for emissions from a host of sources "would greatly increase permitting burdens and result in costs that EPA did not consider in the rulemaking," API warns.
The Air Permitting Forum (APF), representing several Fortune 100 companies, in separate Dec. 4 comments on the NSPS similarly warns about the potential permitting implications from the rule. The groups are urging EPA to revise the final version of the rule to make clear that it does not trigger the broad permitting mandate.
Both groups say they have raised the permitting issues with EPA and understand that the agency does not intend the NSPS to trigger PSD and Title V requirements, but API urges that the agency should make it clear in the NSPS that the pollutant being regulated is the combination of six already-regulated GHGs, through the surrogate of methane.
In the Sept. 18 proposed NSPS, EPA did not explicitly state that the first-time regulation of methane would not reset the threshold emissions level that triggers the need for PSD and Title V air permits, industry sources say.
Under the Clean Air Act, sources are required to seek air permits if they emit 100 tons per year (tpy) or 250 tpy of pollution, depending on the pollutant. PSD permits are required in areas meeting or designated as "unclassifiable" for national ambient air quality standards (NAAQS). PSD permits are also included in Title V operating permits, which are overarching documents that include all applicable permits for an industrial facility.
Permitting Requirements
EPA in its initial 2010 "tailoring" rule establishing Clean Air Act permitting requirements for six GHGs modified the air law's thresholds by increasing them to 75,000 tpy for carbon dioxide equivalent. EPA did this to account for the fact that GHGs are emitted in vastly greater quantities than conventional pollutants subject to NAAQS. The agency has resisted some environmentalists' call for the agency to set a NAAQS for GHGs.
Former agency Administrator Lisa Jackson repeatedly said the agency was not aiming to regulate smaller sources of GHGs such as donut shops or hospitals. But after EPA finalized the tailoring rule and related policies, industry groups sued, leading to the Supreme Court's ruling on the regulations in June 2014.
In the case Utility Air Regulatory Group (UARG) v. EPA, the justices in a 9-0 vote partially upheld the GHG permitting program by allowing the 75,000 tpy threshold to stand for sources that would be subject to PSD permitting requirements for non-GHG pollutants "anyway," regardless of their GHG emissions. However, the court rejected the agency's "GHG-only" PSD permit mandate for sources emitting 100,000 tpy or more of GHGs.
But in the oil and gas NSPS proposal, EPA has neglected to state that in regulating methane -- and not other GHGs -- the agency is applying the higher 75,000 tpy threshold to permitting requirements, industry groups say. Without this explicit statement EPA risks expanding PSD permitting to thousands of very small sources, economy-wide, which is precisely what EPA sought to avoid with the tailoring rule, the groups warn.
In contrast, the industry groups note that EPA did make such an explicit statement against revising permit mandates in its Clean Power Plan NSPS regulation limiting GHGs from new power plants.
Industry's Concerns
APF in its comments on the oil and gas NSPS says that the agency must clarify that it does not intend methane emissions alone to trigger Title V or PSD requirements for larger "major" emissions sources, and that a modification to an existing major source is not required to obtain a PSD permit based only on an increase in methane emissions.
The high court's ruling in UARG compels EPA to resolve the ambiguity over PSD permitting, which could transform smaller "minor" sources into major sources -- those emitting more than 100 tpy or 250 tpy -- if the tailoring rule principles, as modified by the court, are not applied, according to the group's comments.
"The [Supreme] Court found the statutory provisions establishing major source levels to be clear on their face and concluded that the Agency exceeded its authority when it substituted these statutory thresholds for its own via the Tailoring Rule," APF says. "While EPA has removed some portions of the Tailoring Rule invalidated in UARG, EPA has not resolved its position in the post-UARG regime," the comments say.
"EPA cannot, therefore, take the position that methane emissions can trigger PSD without first offering a statutory interpretation that would reconcile the Agency's approach with the holding in UARG," APF adds.
APF notes the related issue of "significance thresholds" -- emissions levels EPA says constitute an increase in air pollution that would trigger PSD permit requirements for sources that are already classed as "major."
EPA has established significance thresholds for some pollutants, such as carbon monoxide, the group notes, which are listed under a specific air law provision. However, because methane is not so listed, the air law would define "any emissions rate" as constituting a significant emissions increase.
"Application of this provision would cause absurd results. Thus, it is important that EPA clarify that methane is to be regulated as part of the group of GHGs and does not require an independent emissions threshold to avoid application of the zero significance threshold," according to the comments.
Endangerment Finding
APF also argues that EPA should have conducted a separate endangerment finding for methane in order to justify the first-time limit in the NSPS, rather than relying on its risk finding for mobile source GHGs that led to the creation of the agency's landmark vehicle fuel economy and GHG standards.
In similar comments filed Dec. 4, the Texas Oil and Gas Association says, "It is critical to clarify and adopt appropriate regulatory provisions so that it is apparent that methane will not cause a source to become subject to PSD or Title V permitting solely by virtue of its methane emissions and to ensure that methane is not subject to a PSD significance level of zero. "Even though EPA should have made a separate endangerment finding and significant contribution finding for methane and for methane from this source category, the issue of permitting still must be clarified."
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EPA Sets Ambitious Agenda For Slew Of Major Water Regulations In 2016
Dec 10, 2015 | InsideEPA
By David LaRoss
EPA is setting an ambitious agenda for pursuing a slew of major water regulations in 2016, including its closely-watched water quality standards for Maine, updates to its National Pollutant Discharge Elimination System (NPDES) governing regulations, and finalizing a pending effluent rule for wastewater from the shale gas industry.
In the Obama administration's recently updated Unified Agenda (UA) of pending regulations, EPA outlines a host of legally binding and self-imposed deadlines for the suite of Clean Water Act (CWA) rules and other policies.
The fall UA, released in mid-November, appears to be the first time EPA has set a date to propose new CWA standards for Maine after disapproving its rules for waters on tribal lands -- an action that has touched off a lawsuit now pending in federal district court as state officials are claiming in State of Maine v. Gina McCarthy that the agency is trying to "federalize" Maine's water quality standards. EPA says it plans to propose the standards by March.
At the heart of the dispute between Maine and Region 1 is whether the state's standards for waters on tribal lands are protective of sustenance fishing, an issue that is also part of an ongoing debate in Washington state where EPA Region 10 is developing revised water quality criteria for toxics after the state failed to do so. EPA proposed criteria for Washington on Sept. 14, and the UA says the final criteria are due to be issued in July.
According to the UA, the agency is planning to formally propose updates to its NPDES governing regulations in February. That update has been in development since 2011 or earlier, but appears set to finally see publication after EPA's proposal was received for White House Office of Management and Budget review Nov. 13.
Similarly, the agency is preparing to propose in May CWA aquatic life criteria for copper and cadmium in Oregon after formally disapproving state-crafted rules for the metals in January 2013. That deadline follows a suit by environmentalists where they asked a court to set an enforceable deadline for the rules.
EPA is also preparing to move ahead with the novel step of separate, site-specific water quality standards to protect against harm to aquatic life from the non-metal selenium -- a mining-related contaminant for which environmentalists have sought strict controls. The agency is planning to propose selenium standards for the San Francisco Bay and Delta of California to protect aquatic life, including for endangered and threatened species under the Endangered Species Act, in June, with a final rule targeted for February 2018.
Effluent Rule
The UA sets an August deadline for EPA to take final action on its proposed CWA effluent rule for wastewater from the shale gas industry, which would set first-time zero discharge standards preventing the sector from sending its wastewater to publicly owned treatment works (POTWs) for processing.
Environmentalists have called on the agency to expand the rulemaking to address conventional oil and gas development and centralized waste treatment facilities, while industry in public comments urged EPA to scrap the rule altogether because, they argue, it did not complete the extensive analysis required under section 304 of the CWA.
Current regulations for direct dischargers for onshore oil and gas wastewater set a "zero discharge" standard for discharges of pollutants to surface waters, but there are no existing rules for "indirect" dischargers of the sector's effluent, such as drillers that send their wastewater to POTWs for treatment before it is discharged.
EPA is setting a June deadline for final action on another oil and gas rule -- the Clean Air Act "aggregation" policy for determining when facilities' emissions must be "aggregated," or combined, for permitting purposes.
The agency's Aug. 18 proposed source determination rule includes two options for determining when sources are "adjacent" and therefore considered as a single source and subject to aggregation under one permit, both of which drew criticism from industry sources who question the tests the agency will use to decide aggregation and from advocates who say the rule could allow some operations to avoid aggregation.
SPCC Regulation
The UA also sets a June deadline for EPA to propose a rulemaking to reduce the number of farms subject to the Oil Spill Prevention, Control and Countermeasure (SPCC) rule to comply with a statutory cap.
That rule is required by the 2014 Water Resources Reform and Development Act (WRRDA), which authorizes water resources projects but also included substantive water policy changes. It commands EPA and the Department of Agriculture to craft the reduced cap, in order to address concerns from farms about being subject to onerous SPCC mandates. The cap is based on a facility's oil storage and dictates when farms must craft control plans and adopt protective measures to prevent accidental spills.
EPA in the rule has discretion to craft a broad exemption from SPCC requirements for farms with no record of spills that store as much as 6,000 gallons of oils -- which under the rule's definition can include milk and other liquids that contain animal fats. However, in its October study of spill risks the agency hinted that it will instead propose a rule with the narrowest exemption the law allows, which would apply only to farms storing 2,500 gallons of oil or less. For drinking water, the UA says EPA plans to propose by the end of December its fourth list of contaminants to consider for regulation under the Unregulated Contaminant Monitoring Rule. The agency is weighing whether to include certain cyanotoxins in its that list, which would aid its ongoing effort to control contamination from the toxins after algal blooms.
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CERCLA Seen as Playing Role in Environmental Behavior
Dec 11, 2015 | BNA Daily Environment Report
By Pat Ware
Thirty-five years after the Superfund law was enacted, the program is seen as playing a large role in changing environmental behavior in the U.S., speakers said during a Dec. 10 webinar.
“Whatever one thinks of it, one thing it's done is changed corporate behavior in a very concrete way,” said Joel Gross, a partner with Arnold & Porter. Anyone who has gotten involved in a Superfund site doesn't want to do so again, he said.
So when people are analyzing what steps to take and what the risks are and what they are going to do in the way of pollution prevention, it is very much a factor on people's minds, Gross said.
The Superfund law—the Comprehensive Environmental, Response Compensation, and Liability Act—turned 35 on Dec. 11. Gross and others made their comments during a webinar on the anniversary, which was sponsored by the Environmental Law Institute and the Environmental Protection Agency.
Gross said he believes there is still a stigma for acquiring Superfund properties that leads to some properties not being acquired. “I think EPA's worked hard in putting out guidance and has tried to do the best it can, but there are a lot of hoops to jump through,” he said. “I think you still see, ‘Why would I want to get involved with that property?’ ”
Mathy Stanislaus, EPA assistant administrator for the Office of Solid Waste and Emergency Response, said he agrees that when purchasing a Superfund or Resource Conservation and Recovery Act site, parties want clarity up front on what the government will require.
One of the fundamental changes in recent years is on the private side, he said. “The competency in underwriting on these projects is very significant,” Stanislaus said.
“So clearly you want to have a full cleanup plan. But the ability to underwrite a loan on these is a very different state than it was even 15 years ago,” he said.
Fewer Cleanups Finished
On the occasion of Superfund's 35th anniversary, the Center for Health, Environment and Justice released a report Dec. 7 critical of the EPA's Superfund program.
“Superfund: Polluters Pay So Children Can Play” found that less money than ever is available for cleanup, fewer projects are being started and projects are taking longer to complete.
Funding for Superfund has continued to decrease from about $2 billion in 1999 to less than $1.1 billion in 2013, the report said. From 2001 to 2008, there was more than a 50 percent decrease in the number of sites being cleaned up, it said.
When the law was enacted in 1980, a trust fund was set up, financed by fees from those who caused the pollution, the group said. The authorization to collect these fees expired in 2005 and when funds ran out in 2003, the entire financial burden fell on the taxpayer, it said.
Efforts to reinstate polluter pays fees have fallen short in Congress, it said. All of this has “weakened Superfund's response to pressing health concerns,” the report said.
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White House More Optimistic on Omnibus
Dec 11, 2015 | BNA Daily Environment Report
By Cheryl Bolen
The White House is now optimistic that a year-long omnibus appropriations bill will be finished the week of Dec. 14, so long as Republicans drop their most controversial policy riders.
The administration's concern with the omnibus continues to center on “ideological riders” in the budget process, White House press secretary Josh Earnest said. Many of these are related to the environment and include provisions to block or limit Environmental Protection Agency regulations to protect streams from mining operations, to clarify the reach of the Clean Water Act and to curb carbon emissions from power plants and other sources (233 DEN A-1, 12/4/15).
“It's not a good way to run the country,” Earnest said. Still, he said, “I am optimistic that we will be able to find a bipartisan budget agreement, if Republicans abandon that effort.”
The Senate on Dec. 10 passed a five-day continuing resolution (H.R. 2250) by voice vote to fund the federal government at existing levels through Dec. 16. The House is expected to pass it on Dec. 11, and Earnest said President Barack Obama would sign the measure (see related story).
No Funding Disputes
House Appropriations Committee Chairman Hal Rogers (R-Ky.) said the short-term CR would prevent a government shutdown and allow for additional time to pass the omnibus funding bill.
Earnest said the fact that the White House and Congress are “not at loggerheads” over specific funding levels is a sign of significant progress.
On Nov. 2, an $80 billion budget agreement was signed into law (Pub. Law No. 114-74) that established top-line spending amounts for fiscal years 2016 and 2017 .
This bipartisan budget agreement paved the way for congressional appropriators to produce the omnibus spending bill, which will fund all of the operations of the federal government in FY 2016.
“The fact that Democrats and Republicans have been able to work together to negotiate our differences and find some common ground about spending levels is an indication that we've made some important progress,” Earnest said.
Riders Couldn't Pass Congress
The only issue now, according to Earnest, is the long list of policy riders that the White House said could not pass on their own in Congress.
Historically, omnibus spending bills have had extraneous pieces of policy added to them, knowing that the bill is likely to pass Congress, Earnest said.
“The thing that's important is that typically those have been measures that enjoy widespread support in Congress,” Earnest said.
In this case, the administration is objecting to “partisan” riders that in most cases would not otherwise be able to pass in Congress, Earnest said.
“And so, using a must-pass piece of legislation to pass a controversial, ideological policy proposal that wouldn't otherwise pass the Congress, is not responsible,” Earnest said. “And that's what we object to,” he said.
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