Preview Newsletter
ACC AM Dec 23
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(ACC Mentioned) U.S. Chemical Production Forecast To Rise In 2016
Dec 23, 2015 | Kallanish Energy
Continuing access to low-cost, plentiful natural gas for use as both a fuel and feedstock will allow U.S. chemical production to rise in 2016, albeit at a slower rate than during 2015, the American Chemistry Council (ACC) projects. Low-cost gas, along with strong gains in sales of cars and homes in the new year... -
(ACC Mentioned) US Chemical Activity Moves Higher In December
Dec 22, 2015 | Hydrogen Processing
The Chemical Activity Barometer has four primary components: 1) production; 2) equity prices; 3) product prices; and 4) inventories and other indicators. Keywords: The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC), strengthened slightly in December, rising 0.2% following a similar ... -
(ACC Mentioned) US Chemical Output Up By 3.6pc In 2015: ACC
Dec 22, 2015 | Argus Media
US chemical production grew by 3.6pc in 2015 and is forecast to grow 2.9pc in 2016 and by 4.4pc in 2017, according to the American Chemistry Council (ACC). Even as the higher value of the dollar creates headwinds for US exports, domestic demand from the automotive and housing sectors will support production growth for petrochemicals... -
(ACC Mentioned) EPA Region 2 Chief Touts Microbead Water Efforts As Lawmakers Eye Ban
Dec 22, 2015 | InsideEPA
By David LaRoss
EPA Region 2 Administrator Judith Enck is touting the agency's efforts to reduce estuary-level water pollution from trash and other debris such as plastic microbeads that lawmakers are seeking to prohibit in personal care products, and says EPA's work on targeting the waste is also part of the agency's environmental justice (EJ) agenda. -
US Senate Approves Toxic Substances Control Act Reform Bill
Dec 22, 2015 | The National Law Review
By Stephen A. Owens
On December 17, 2015 the US Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Senate’s version of legislation to overhaul the Toxic Substances Control Act (“TSCA”). The bipartisan bill was introduced on March 10, 2015 by Senators Tom Udall (D-NM) and David Vitter (R-LA) and was approved... -
Ban on Microbeads Proves Easy to Pass Through Pipeline
Dec 22, 2015 | The New York Times
By John Schwartz
The words “gridlock” and “Congress” have become predictable neighbors in many a sentence about the federal government. But every once in a long while, something like this happens: A bill to protect the environment was introduced in the House in March. In early December, the House passed the bill. -
Microbeads Continue to Menace the Ocean
Dec 22, 2015 | The Huffington Post - Blog
By Dr. Chad Nelsen
On Friday, December 18th history was made. The Senate approved a bill - which is now awaiting the President's support - to phase out personal-care products such soaps, body washes, toothpaste and more, containing plastic microbeads in 2017. This comes on the heels of the House of Representatives' decision, just one week earlier... -
EPA Moves to Revise Stationary Source Risk Program
Dec 23, 2015 | BNA Daily Environment Report
The Environmental Protection Agency sent a proposal to revise its risk management program for stationary sources to the Office of Management and Budget on Dec. 21, launching a loose, 120-day window for review at OMB's Office of Information and Regulatory Affairs. The proposal (RIN 2050-AG82) hasn't been released... -
Resisting The "Chemical Safety" Con Game
Dec 22, 2015 | The Huffington Post - Blog
By Michael Green
A con man preys on our perceptions of reality. Even the simple game of three-card monte, a classic street hustle, relies as much on the ability of the huckster to manipulate his observers' perceptions as it does on his skill at sleight of hand. Now, like a street hustler, the chemical industry is hoping that we will be dazzled by their patter when they -
States Press EPA For Alternatives To Using DfE Logo On Pesticide Labels
Dec 22, 2015 | InsideEPA
By Dave Reynolds
State regulators are urging EPA to change its approach to expanding the agency's "safer chemicals" labeling program to pesticide products, reiterating that logos suggesting certain pesticides are "safer" raise legal hurdles and safety concerns, and pressing EPA to find another way to educate consumers about pesticide formulations. -
Environmentalists Oppose Halting Crude-by-Rail Case
Dec 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental groups are urging a federal court not to halt litigation over a Transportation Department rule governing movement of crude oil and other flammable liquids by rail, calling the government's reasoning “overblown” (Am. Petroleum Inst. v. U.S., D.C. Cir., No. 15-1131, motion opposed, 12/18/15). -
Railroad Groups Consider New Challenge to Crude-by-Rail Law
Dec 23, 2015 | BNA Daily Environment Report
By David McAfee
Some attorneys say the U.S. railroad industry is likely to once again file a challenge to California's 2014 law imposing a number of new crude-by-rail regulations, some of which will be enforceable on Jan. 1, 2016, after their previous lawsuit was dismissed as unripe. -
Canadian Regulator Blames Earthquake on Fracking
Dec 23, 2015 | BNA Daily Environment Report
By Alan Kovski
The British Columbia Oil and Gas Commission has blamed an earthquake of 4.6 magnitude on hydraulic fracturing. The determination was issued by the commission Dec. 15 after an investigation that included a review of operational and seismological data, including all active oil and natural gas operations... -
Clean Power Plan Draws New Lawsuits, Supporters
Dec 23, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's carbon dioxide rules for power plants gained some new allies and more than a few new detractors as the deadline passed to challenge the standards. Dec. 22 was the deadline to file legal challenges in the U.S. Court of Appeals for the District of Columbia... -
Cities Move To Defend Obama Power Plant Rules
Dec 22, 2015 | The Hill - E2 Wire
By Devin Henry
Cities and local government groups stepped in Tuesday in an effort to protect key Obama administration climate rules from state and industry lawsuits. Fourteen cities joined the National League of Cities and the U.S. Conference of Mayors in an amicus brief supporting ... -
Michigan to Seek Two-Year Clean Power Plan Extension
Dec 23, 2015 | BNA Daily Environment Report
By Nora Macaluso
Michigan is on track to submit its strategy for complying with the Environmental Protection Agency's Clean Power Plan (RIN 2060-AR33) by the Sept. 6, 2016, deadline and will seek a two-year extension for submitting a final plan so it can go through the state's rulemaking process, state officials said. -
Michigan Officials Say State 'Well On Our Way' To Carbon Rule Compliance
Dec 22, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Michigan is on track to comply with EPA’s Clean Power Plan without having to make drastic course corrections, state officials said today. Policies already in place will allow the state to hit its emissions-reduction targets through at least 2025, according to Valerie Brader, executive director of the Michigan Agency for Energy. -
Kentucky, Wyoming ask EPA to reopen power plant carbon rule
Dec 22, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Kentucky and Wyoming have asked EPA to reopen its Clean Power Plan, arguing that major additions and changes to the final version of the rule left them without the opportunity to fully weigh in. The coal-heavy states were among those that saw the biggest percentage increase in their emissions targets — a “surprise switcheroo” barred by law... -
Greenhouse Gas Reporting Rule Revisions Proposed
Dec 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency is proposing changes to how power plants, refineries, chemical plants, underground coal mines and other large facilities report their greenhouse gas emissions in what the agency described as the latest effort to improve the implementation and efficiency of the program. -
Obama Says Anger Over His Emissions Rules ‘Legitimate’
Dec 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
It is understandable and “perfectly legitimate” for citizens, particularly those from traditionally coal-dependent regions, to feel threatened and vigorously oppose this administration's environmental policies, President Barack Obama said in an interview released Dec. 21. -
Brushing Back a Lawless EPA
Dec 22, 2015 | The Wall Street Journal
President Obama continued to use executive agencies to exceed his constitutional power in 2015, none more so than the Environmental Protection Agency. The courts have pushed back on occasion, and now Congress is beginning to use its powers to do the same. -
Advocates Seek to Intervene in Effluent Limit Challenges
Dec 23, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
The Sierra Club and three other advocacy groups filed a joint motion to intervene in a lawsuit challenging the recently issued federal effluent guidelines to regulate toxic discharges from power plants (SW Elec. Power Co. v. EPA, 5th Cir., 15-60821, 12/21/15). -
Energy Policy in Congress: The Good, the Bad, and the Ugly from 2015
Dec 22, 2015 | The Energy Collective
By Elizabeth Noll
For the first time in eight years both the House and Senate energy committees sought this year to advance bipartisan comprehensive energy legislation to address our nation's rapidly changing energy systems and aging transmission, storage, and other infrastructure. But in the end, partisan wrangling put a millstone around the neck ... -
EPA Plans February Workshop on Background Ozone
Dec 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency will hold a workshop in February 2016 to seek input from state environmental officials on what guidance and assistance they need from the EPA to address elevated background concentrations of ground-level ozone.
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(ACC Mentioned) U.S. Chemical Production Forecast To Rise In 2016
Dec 23, 2015 | Kallanish Energy
Continuing access to low-cost, plentiful natural gas for use as both a fuel and feedstock will allow U.S. chemical production to rise in 2016, albeit at a slower rate than during 2015, the American Chemistry Council (ACC) projects.
Low-cost gas, along with strong gains in sales of cars and homes in the new year, will overcome the strong dollar and a faltering global economy, according to ACC.
Accordingly, U.S. chemical production excluding pharmaceuticals will increase 3.1% in 2016, ACC predicts, after a 3.8% increase this year, Kallanish Energy learns
Inexpensive shale gas will allow U.S. chemical and polymer makers to boost exports and remain among the lowest-cost producers globally, says T. Kevin Swift, chief economist at ACC.
The chemistry council projects the U.S. chemical trade surplus will reach $34.1 billion in 2015, climbing to $59.1 billion in 2020.
“The fundamentals are strong,” Swift said. “Consumer spending [in 2015] accelerated, the job market began to firm, and households enjoyed extra savings from lower energy costs,” Swift said, a prelude to strong chemical output in 2016.
The outlook, Swift said, is much better than in Europe, where economic growth is slower and producers don’t have the advantage of low-cost, shale-derived energy and feedstocks available to U.S. producers.
The European Chemical Industry Council, the European counterpart to ACC, projects a 1% production increase in 2016 after a 0.5% increase this year.
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(ACC Mentioned) US Chemical Activity Moves Higher In December
Dec 22, 2015 | Hydrogen Processing
The Chemical Activity Barometer has four primary components: 1) production; 2) equity prices; 3) product prices; and 4) inventories and other indicators.
Keywords:
The Chemical Activity Barometer (CAB), a leading economic indicator created by the American Chemistry Council (ACC), strengthened slightly in December, rising 0.2% following a similar gain in November.
All data is measured on a three-month moving average (3MMA). Accounting for adjustments, the CAB remains up 1.5% over this time last year, a marked deceleration of activity since the second quarter.
The Chemical Activity Barometer has four primary components, each consisting of a variety of indicators: 1) production; 2) equity prices; 3) product prices; and 4) inventories and other indicators.
During December, chemical equity prices retreated after two months of strong gains. Product prices were mixed, and inventories were fairly stable.
The Chemical Activity Barometer is a leading economic indicator derived from a composite index of chemical industry activity, the ACC says. The chemical industry has been found to consistently lead the US economy’s business cycle given its early position in the supply chain, and this barometer can be used to determine turning points and likely trends in the wider economy.
Month-to-month movements can be volatile, so a three-month moving average of the barometer is provided. This provides a more consistent and illustrative picture of national economic trends.
Applying the CAB back to 1919, it has been shown to provide a lead of two to 14 months, with an average lead of eight months at cycle peaks as determined by the National Bureau of Economic Research. The median lead was also eight months. At business cycle troughs, the CAB leads by one to seven months, with an average lead of four months. The median lead was three months, the ACC says.
The CAB is rebased to the average lead (in months) of an average 100 in the base year (the year 2012 was used) of a reference time series. The latter is the Federal Reserve’s Industrial Production Index.
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(ACC Mentioned) US Chemical Output Up By 3.6pc In 2015: ACC
Dec 22, 2015 | Argus Media
US chemical production grew by 3.6pc in 2015 and is forecast to grow 2.9pc in 2016 and by 4.4pc in 2017, according to the American Chemistry Council (ACC).
Even as the higher value of the dollar creates headwinds for US exports, domestic demand from the automotive and housing sectors will support production growth for petrochemicals, according to the trade group's annual report.
"Strong growth is expected in inorganic chemicals, organic chemistry, plastic resins and synthetic rubber as export markets revive and domestic end-use markets further improve," the report said.
The ACC estimates 2015 capital spending by petrochemical producers rose by 18.4pc as companies invested in new cracker expansions to take advantage of cheap shale-derived feedstocks. Further investments are expected to increase more than 7pc annually through 2018 to as much as $55.3bn by 2020.
"It is estimated that the gains to basic olefins capacity will range from 35pc to 40pc," the group said. "Over 255 new chemical production projects (valued at over $158bn altogether) have been announced through early December and the dynamics for sustained capital investment are in place."
Increased US production will lead to growth in exports, according to the ACC, which estimates the US will post a $34bn trade surplus in 2015 that could grow to $59.1bn by 2020.
US production of plastic resins grew by 3.1pc in 2015 and is forecast to grow by 3.9pc next year. Synthetic rubber production grew by 3.1pc this year and is forecast to grow by 3.9pc in 2016. The ACC estimates 2015 capacity utilization stood at 74.6pc.
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(ACC Mentioned) EPA Region 2 Chief Touts Microbead Water Efforts As Lawmakers Eye Ban
Dec 22, 2015 | InsideEPA
By David LaRoss
EPA Region 2 Administrator Judith Enck is touting the agency's efforts to reduce estuary-level water pollution from trash and other debris such as plastic microbeads that lawmakers are seeking to prohibit in personal care products, and says EPA's work on targeting the waste is also part of the agency's environmental justice (EJ) agenda.
Microbeads are solid plastic particles, usually less than five millimeters in size, that are included 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.
In remarks prepared for a recent keynote address to the National Estuary Conference in Puerto Rico, Enck described microbead reductions as a major goal of the agency's Trash Free Waters (TFW) program, which according to the agency aims to support support "innovative aquatic trash prevention and reduction policies, programs and initiatives by many public, private, and nonprofit stakeholders."
Enck called the beads "especially problematic because they are too tiny to be filtered out during wastewater treatment" and says the effort to reduce disposal of microbeads, along with other plastic trash likely to end up in waterways, will support the agency's EJ efforts as well as its overall water agenda because of the risks posed to vulnerable communities by such pollution.
"Estuary [p]rograms need to have a sharper focus on environmental justice . . . A good start is for estuary programs to work in low-income communities is to reduce plastic litter in the streets that eventually enters our waterways," Enck said. Relevant documents are available on InsideEPA.com. (Doc. ID: 187558)
Enck gave her speech at the Dec. 2 estuary conference just days before the House debated a bill to ban microbeads in the personal care products where they are most common, and most likely to end up in wastewater.
The House on Dec. 7 approved by voice vote H.R. 1321, which would ban the manufacture of such beads beginning July 1, 2017, and ban their use in products beginning on July 1, 2018. A Senate companion, S. 1424, is pending before the Committee on Health, Education, Labor, and Pensions.
The law has backing from industry as well, with the American Chemistry Council praising the House vote. In a Dec. 7 statement the group said 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."
A bar on producing or selling microbeads would dovetail with EPA's TFW program, which seeks to reduce use and disposal of products that tends to either be deposited in water or to eventually reach protected waterways after disposal. Under TFW the agency offers organizational, technical and other support to "enhance" state-organized or independent programs that reduce or manage trash disposal.
Along with microbeads, Enck's recent presentation lists cigarette butts, plastic bags, drink bottles and single-use food service boxes as TFW priorities. She describes the program as designed "to reduce trash at the source," and an "Upstream approach, not chasing trash after it has entered the environment."
In addition, the agency is working on a "great practices compendium" to highlight TFW efforts underway in the Mid-Atlantic states, which an Oct. 29 agency newsletter said was targeted for November release but has yet to be posted online.
Enck described TFW as a growing component of the agency's EJ efforts because of the dangers posed by estuaries and other small-scale waterways when they become clogged by debris.
She used the example of Puerto Rico's Martn Pea Canal, which is situated in an urban area and requires dredging to remove plastic trash and other debris. The "clogged" canal is more likely to flood, and "Flood waters have bacteria and pathogens due to inadequate sewage infrastructure," Enck said. EPA, the Army Corps of Engineers, Puerto Rico's local government and Governor Alejandro Garcia Padilla, Governor of Puerto Rico, and the local community group ENLACE signed a memorandum of understanding Oct. 29 where they commit to dredging and other ecosystem restoration activities in the area, which Enck described in her talk as a model of the environmental improvements "citizen science" and EPA's EJ initiative can advance.
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US Senate Approves Toxic Substances Control Act Reform Bill
Dec 22, 2015 | The National Law Review
By Stephen A. Owens
On December 17, 2015 the US Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Senate’s version of legislation to overhaul the Toxic Substances Control Act (“TSCA”). The bipartisan bill was introduced on March 10, 2015 by Senators Tom Udall (D-NM) and David Vitter (R-LA) and was approved by the Senate Environment & Public Works (“EPW”) Committee nearly eight months ago on April 28.
The Senate bill was designated as S. 697. The full Senate passed the bill, however, as a substitute for H.R. 2576, the TSCA reform legislation that had been approved by the US House of Representatives on June 23, 2015. As such, the bill passed by the Senate is now designated as H.R. 2576, but its text is that of the Senate EPW bill (with some changes).
Among many significant changes to the current TSCA law, the Senate-passed bill would:
Require US EPA to evaluate chemicals (both new and existing chemicals) based on a safety standard and determine whether they present an unreasonable risk of injury “under the conditions of use.”
Prohibit consideration of costs or other non-risks factors in chemical evaluations.
Require US EPA to consider vulnerable subpopulations in evaluating chemicals.
Allow companies to ask US EPA to review a chemical.
Give US EPA authority to issue administrative orders to require testing of chemicals.
Eliminate the “least burdensome” requirement for chemical regulations, making it easier for US EPA to restrict – or ban – chemicals.
Preempt state chemical regulations under certain conditions.
Put limits on confidential business information (“CBI”) claims and allow US EPA to share CBI with states.
Allow US EPA to charge higher fees for chemical reviews. Review of New Chemicals
Under the Senate-passed bill, US EPA would have to make an affirmative determination that a new chemical (or significant new use of a chemical) is “likely to meet the safety standard” before it can be manufactured, imported or processed in the US. The safety standard is defined to mean that “no unreasonable risk of injury to health or the environment” will result from exposure to the chemical “under the conditions of use.” “Conditions of use” are defined as “the intended, known, or reasonably foreseeable circumstances” regarding the manufacture, processing, distribution, use or disposal of a chemical as determined by US EPA.
In determining whether a chemical is likely to meet the safety standard US EPA must consider vulnerable populations and is prohibited from considering costs or “other non-risk factors.” If US EPA has insufficient information to make a determination about a chemical, it can suspend the review pending receipt of the information, or impose restrictions sufficient for it to make the “likely safe” determination even in the absence of the information. US EPA can enter into a consent decree or order to prohibit or restrict the manufacture, processing, use, distribution or disposal of a chemical that is “not likely to meet the safety standard.” US EPA can require testing of new chemicals, including by issuing administrative orders.Characterization of Existing Chemicals as Active or Inactive
The Senate bill requires that, within one year after enactment, US EPA must issue a rule under TSCA section 8 requiring all manufacturers and processors to tell the agency which chemicals on the TSCA Inventory they have manufactured or processed within the 10-year period preceding the date of enactment. Based on the information provided by these notifications, US EPA will develop a list of “active” chemicals and a list of “inactive” chemicals. Chemicals on the “active” list will be prioritized for purposes of safety assessments. If a chemical is designated as “inactive,” a company must notify US EPA before it can manufacture or process the chemical. Once a chemical is moved from the “inactive” list to the “active” list, it is subject to prioritization.
Prioritization of Active Chemicals
The Senate bill requires US EPA to designate existing “active” chemicals as “high” or “low” priority through a risk-based prioritization process and then conduct safety assessments of, and make safety determinations about, the high-priority chemicals. US EPA may designate a chemical as high priority if it has either “significant” hazard or “significant” exposure. All listing decisions (high- and low-priority) are subject to 90 days public comment, and a decision by US EPA to designate a chemical as a low-priority is subject to judicial review. The bill requires US EPA to include at least 10 chemicals on the initial high-priority list and at least 10 on the initial low-priority list. Within three years, the list must have at least 20 high-priority and 20 low-priority chemicals, and it must have at least 25 high-priority and 25 low-priority chemicals within five years. At least half of all high-priority chemicals must come from US EPA’s list of Work Plan chemicals until all of the Work Plan chemicals have been designated.
Additionally, when setting the initial list of high priority chemicals, US EPA must give preference to the chemicals among US EPA’s list of Work Plan chemicals that are persistent, bioaccumulative and toxic (“PBTs”). US EPA also must consider PBTs when making prioritization determinations.Safety Assessments and Safety Determinations for Existing Chemicals
Under the Senate bill, US EPA must conduct a safety assessment and make a safety determination for each existing chemical on the high-priority list. Through the safety assessment, US EPA must evaluate “the risk posed by a chemical substance under the conditions of use, integrating hazard, use and exposure information.” When making the safety determination, US EPA must determine “whether a chemical substance meets the safety standard under the conditions of use.” US EPA must consider vulnerable populations and cannot consider costs or other “non-risk” factors in assessing a chemical.
US EPA must define the scope of the safety assessment and safety determination for a chemical no later than six months after the chemical is designated as a high priority. The scope must include the hazards, exposures, conditions of use, and potentially exposed or susceptible populations that US EPA expects to consider. US EPA must complete the safety assessment and safety determination within three years after designating the chemical as a high priority. US EPA may extend the deadline for up to one year if required information is not yet available or was submitted very late. When performing the safety assessment, US EPA may require additional information to be submitted and require testing to be conducting.Administrative Order Authority to Require Testing
The Senate bill gives US EPA general authority to require testing on a chemical by issuing an administrative order (as opposed to promulgating a formal rule) and without having to make the difficult findings required under current TSCA section 4. US EPA may exercise this authority not only to collect information needed for safety assessments and determinations, but broadly for other purposes as well.Company Requests for Safety Assessments and Safety Determinations on Existing Chemicals
The Senate bill provides that a manufacturer or processor can ask US EPA to conduct a safety assessment and make a safety determination on a chemical if US EPA has not yet prioritized it, subject to certain limits on the number of company-requested assessments/determinations compared to ones initiated by US EPA. The company must pay the cost of the safety assessment and safety determination, however, and US EPA cannot give company-requested assessments preference over ones for chemicals designated as high priority. Initiation of a company-requested assessment by US EPA generally would not trigger preemption of state regulation of the chemical, but preemption would occur if the chemical is a Work Plan chemical that has not yet been designated for assessment.
Regulatory Action on Chemicals
Under the Senate bill, if US EPA determines that an existing chemical does not meet the safety standard, it must issue a rule under TSCA section 6 to restrict, ban or phase out the chemical. Significantly, the Senate bill eliminates the current TSCA requirement that US EPA must select the “least burdensome” regulatory option when regulating an existing chemical. When considering a section 6 action, however, US EPA must take into account “the quantifiable and nonquantifiable costs and benefits of the proposed regulatory action” and any “primary” alternative actions considered. A determination by US EPA that a chemical meets the safety standard is subject to judicial review, as is any final rule issued by US EPA for a chemical determined not to meet the safety standard.
The Senate bill contains certain special requirements relating to restrictions on replacement parts and articles. Replacement parts manufactured prior to the effective date of the legislation are exempt from regulation under section 6 unless they “contribute significantly to the identified risk.” Articles may be restricted “only to the extent necessary to address the identified risks in order to determine that the chemical substance meets the safety standard.”Preemption of State Chemical Regulations
Under the Senate bill, a state would be preempted from imposing any new regulatory restrictions on a high priority chemical from the time that US EPA defines the scope of the chemical’s uses for purposes of the safety assessment until US EPA makes a safety determination about the chemical.
However, the bill does not preempt state requirements for reporting, monitoring or disclosure relating to a chemical or any restrictions imposed under a state air quality, water quality, or waste treatment or disposal law. The bill also would not preempt any state chemical regulation taken on a chemical prior to August 1, 2015, or taken under a law in effect on August 31, 2003.
The bill provides that states can seek a waiver from preemption under certain conditions, and US EPA’s decision on a waiver is subject to judicial review. Additionally, the prohibition on new state action on a chemical is lifted if EPA misses the deadline for making the safety determination for the chemical. The bill also would allow states to “co-enforce” regulations on chemicals, including seeking penalties, but the combined total penalty obtained by US EPA and a state cannot exceed the TSCA statutory amount.Confidential Business Information
The Senate bill requires that new “confidential business information” (“CBI”) claims must be substantiated and reviewed and approved by US EPA, and it imposes certain requirements for CBI claims for chemical identity (for substances not already on the confidential portion of the TSCA Inventory). The bill further provides that all CBI claims will expire after 10 years unless they are renewed and re-substantiated.
The bill also directs US EPA to review all active chemicals on the confidential portion of the TSCA Inventory within five years after compiling the initial active list, and it requires that the CBI claims for the chemical identities of these chemicals must be re-substantiated. If US EPA determines that the CBI claims are valid and the identities of these chemicals should remain confidential, the CBI claims nevertheless would be subject to the 10-year time limit and would expire at the end of that period unless renewed and re-substantiated.
Under the bill, US EPA may review and require re-substantiation of any CBI claim for high-priority priority chemicals or inactive chemicals at any time. CBI claims made before enactment that are reviewed by US EPA would be subject to the 10-year time limit, unless renewed and re-substantiated at the end of that period.
Finally, the bill permits US EPA to share CBI with state and local governments and health professionals under certain conditions.Fees
The Senate bill removes the specific fee set in the current TSCA law (which has stayed the same since 1976) and gives US EPA the authority to establish “reasonable” fees, subject to an initial total limit of $25 million or 25% of the costs for the activities covered by the fees, whichever is lower. US EPA would be permitted to adjust fees in the future, however, to account for inflation and ensure that they are sufficient to defray 25% of the relevant costs, even if they exceed $25 million.
Rulemakings
The Senate bill requires US EPA to develop formal rules to implement a number of processes and requirements established by the bill, such as establishing a risk-based screening process and “explicit” criteria for prioritizing chemicals; policies and procedures for safety assessments and safety determinations; reporting requirements relating to active and inactive chemicals; a plan for reviewing CBI claims for chemical identities of active chemicals on the confidential portion of the TSCA Inventory; and fees (in addition to any rulemakings currently required under TSCA). The bill sets various deadlines for the rulemakings.Development of Policies, Procedures and Guidance
The bill requires US EPA to develop any policies, procedures and guidance documents within two years of enactment.Next Steps
Because there are significant differences between the Senate and House bills, the two bodies must agree on a compromise measure before any TSCA reform legislation becomes law. Senate and House leaders are discussing whether a formal conference committee process will be needed or whether the differences between the bills can be reconciled in a more expeditious fashion. Our lawyers will continue to closely monitor developments with this legislation.
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Ban on Microbeads Proves Easy to Pass Through Pipeline
Dec 22, 2015 | The New York Times
By John Schwartz
The words “gridlock” and “Congress” have become predictable neighbors in many a sentence about the federal government.
But every once in a long while, something like this happens:
A bill to protect the environment was introduced in the House in March. In early December, the House passed the bill. A week later, the Senate passed it as well, without changing a word and by unanimous consent, just before Congress left town on Friday.
That is the strangely charmed life of the Microbead-Free Waters Act of 2015, which sailed through Congress in an age when most legislation plods. The new law bans tiny beads of plastic that have been commonly added as abrasives to beauty and health products like exfoliating facial scrubs and toothpaste.
Under the law, companies will have to stop using beads in their products by July 2017.
The problem with the beads, as researchers have discovered, is that they slip through wastewater treatment systems and into waterways. Sherri A. Mason, an environmental chemist at the State University of New York in Fredonia, estimates that 11 billion microbeads are released into the nation’s waterways each day.
Dr. Mason, whose work on microbeads in the Great Lakes helped bring attention to the problem in the United States, called passage of the bill “a very important step,”
The beads themselves are not considered toxic. But once they and other microplastic debris are in the water, they attract harmful chemicals like PCBs, which adhere to their surface and become concentrated there. Continue reading the main story Related in Opinion Editorial: Microbeads, the Tiny Orbs Threatening Our Water AUG. 21, 2015 Opinion: What Comes Out in the WashNOV. 28, 2015
The plastics are then consumed by marine life; research has suggested that the harmful chemicals can be passed along the food chain to any animal — including humans — that eats seafood.
The original sponsor of the bill, Representative Frank Pallone Jr., Democrat of New Jersey, said its rapid success surprised him, especially the unanimous consent from the Senate. But the explanation, he said, was simple: “There was a lot of support, and there wasn’t much opposition.”
The cosmetics industry has been under fire from environmental activists for years over the use of the beads, and all of the major companies had already announced initiatives to phase them out, noted Sean Moore, an official of the Consumer Healthcare Products Association in Washington.
Several states, including Illinois and California, recently passed bead bans, and more than half of the states were considering them. In New York, where a ban is before the Legislature, individual counties had instituted bans. Some of them would require products to be reformulated or taken off store shelves by February, deadlines “that were, frankly, not feasible for companies to meet,” Mr. Moore said.
The growing number of state and local laws, with conflicting restrictions and timelines, motivated industry to support the law, said Marc Brumer, a spokesman for Senator Kirsten E. Gillibrand. Ms. Gillibrand, a Democrat of New York, was a sponsor of the bill in the Senate with Senator Rob Portman, Republican of Ohio, and others.
“They had concerns about a patchwork of state regulations,” Mr. Brumer said.Mr. Moore of the health care products group agreed: “We were glad to see one uniform policy across the country.”
While environmental groups cheered the passage of the bill, those who concern themselves with the broader problem of plastic debris in the oceans said there was much more do be done.
Microbeads are only part of the more than eight million metric tons of plastics that make their way into the world’s oceans each year, including nylon fishing nets, bottles and tiny fibers released from clothes during laundering.
Different initiatives will be needed to address those problems, said Marcus Eriksen, a co-founder and the director of research for 5 Gyres, a group that focuses on getting plastic out of the world’s oceans.
Microbeads, he added, were “low-hanging fruit,” but a culture that prizes single-use, throwaway items and packaging must change.
“There’s more plastic being made,” he said.
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Microbeads Continue to Menace the Ocean
Dec 22, 2015 | The Huffington Post - Blog
By Dr. Chad Nelsen
On Friday, December 18th history was made. The Senate approved a bill - which is now awaiting the President's support - to phase out personal-care products such soaps, body washes, toothpaste and more, containing plastic microbeads in 2017. This comes on the heels of the House of Representatives' decision, just one week earlier, to pass a bill to ban microbeads too, including so-called "biodegradable" plastic microbeads.
Why is everyone working to "ban the bead?" Super tiny, but insidiously dangerous, these long-lasting micro-plastic particles wash down our drains, and because they are too tiny to be filtered by municipal sewer systems, they travel directly into the ocean. That is when the real damage begins. Often mistaken as fish eggs, marine life "eat" the microbeads, which are known to absorb toxins. But things don't stop there. The toxin-filled microbeads travel up the food chain to us, as we're likely to then eat seafood that have ingested these microscopic bits of plastic.
Nine states have already outlawed microbeads and it is great to see a ban being considered at the federal level. But some are questioning if the laws are moving fast enough. The federal bill, if it becomes law, isn't slated to go into effect until 2017 and California, one of the largest states to pass a law, which happens to be one of the most stringent, is set to start in 2020.
Even with all this progress, the question that must be asked is, "What damage will occur before the microbead bans go into effect?"
Here are some facts to consider:
1. Researchers at State University New York, Fredonia calculated an average of 17,000 microbeads per square kilometer in Lake Michigan.
2. A report published by the College of Science at Oregon State University found that eight billion microbeads are sent into aquatic environments each day in the U.S. This number translates to approximately 2.9 trillion beads per year, which according to an article written by Oregon State University is "enough to wrap the Earth more than seven time if lined up end to end."
3. Science Alert equates the eight billion microbeads sent into our waters each day as "enough to cover more than 300 tennis courts."
4. Litter, including plastics and microbeads, are already costing each one of us. The Natural Resources Defense Council estimates that 95 communities in California have already spend $428 million per year to prevent litter from becoming pollution. Imagine what total cost would be for all of California, or the rest of the United States! By avoiding waste in the first place, this money could be put toward other issues. We just need to make better choices when it comes to avoiding single-use plastics and microplastics in the first place.
For these reasons, there is no need to wait for laws to pass and be enacted. Each of us can stop microbeads from entering our waters today. It's simple. Do not buy products - ranging from toothpaste to body scrubs to face wash - that contain them. It's time to start checking your labels. If you see the words "polyethylene" or "polypropylene," which represent microbead materials, choose another item.
While each of us take personal action to become more thoughtful consumers and shoppers, the Surfrider Foundation will continue to advocate for microbead regulation while we wait for President Obama to sign this bill into law. It's all hands on deck to rid the world of this senseless and avoidable form of plastic pollution.
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EPA Moves to Revise Stationary Source Risk Program
Dec 23, 2015 | BNA Daily Environment Report
The Environmental Protection Agency sent a proposal to revise its risk management program for stationary sources to the Office of Management and Budget on Dec. 21, launching a loose, 120-day window for review at OMB's Office of Information and Regulatory Affairs. The proposal (RIN 2050-AG82) hasn't been released, but it is designed to cover accidental releases of chemicals into the atmosphere. The fall 2015 unified agenda said the proposal may spur EPA additions to existing RMP regulations. “The proposed action will address the risks associated with accidental releases of listed regulated toxic and flammable substances to the air from stationary sources,” it said. “The proposed action will reduce these risks by making accidental releases less likely, and by mitigating the severity of releases that may occur. The proposed action would not address the risks of non-accidental chemical releases, accidental releases of non-regulated substances, chemicals released to other media, and air releases from mobile sources.” The EPA is acting in response to Executive Order 13650, which President Barack Obama issued in the wake of the 2013 West, Texas, explosion at a fertilizer facility. That accident claimed 15 lives. The executive action requires the EPA to review its RMP and urges improved mechanisms to ensure chemical safety.
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Resisting The "Chemical Safety" Con Game
Dec 22, 2015 | The Huffington Post - Blog
By Michael Green
A con man preys on our perceptions of reality. Even the simple game of three-card monte, a classic street hustle, relies as much on the ability of the huckster to manipulate his observers' perceptions as it does on his skill at sleight of hand. Now, like a street hustler, the chemical industry is hoping that we will be dazzled by their patter when they say that the government's new "chemical safety" rules will protect Americans from their dangerous products.
For years, Congress has promised to update our decades-old federal chemical regulations, yet despite the demands from hundreds of health, environmental, consumer and other public interest groups, the Senate recently adopted a flawed bill that will do little to undo the chemical industry's con game.
As Maria Konnikova wrote in an essay adapted from her recent book, The Confidence Game: Why We Fall For It ... Every Time,
Stories are one of the most powerful forces of persuasion available to us, especially stories that fit in with our view of what the world should be like....Even as the evidence against them piles up, we hold on to our cherished beliefs.
The chemical industry knows this dynamic only too well. They have perpetuated the story that the government protects us from unsafe chemicals. They know that for many years most people believed, despite the evidence to the contrary, that the government wouldn't let dangerous chemicals into hundreds of products on store shelves without testing.
But chemical companies are afraid that many consumers are now questioning these beliefs. A spokeswoman for the chemical industry recently told the Wall Street Journal, "There is a problematic perception that chemicals on the market aren't screened for safety."
Note that the chemical industry's problem is that people accurately "perceive" the situation: in fact, chemicals are rarely screened for safety. Our accurate perception of this truth is undermining the industry's ability to twist reality and obscure the very real dangers from their toxic products.
The growing realization that the government is not protecting us from disease-causing chemicals led the chemical industry to an underhanded solution. They created and pressured Congress to adopt new "chemical safety" rules, the first update of our nation's chemical regulations in forty years.
But since perception is paramount, the industry put forth a bill that gives the appearance of strengthening protections for our health, while actually making virtually no changes to stop the flow of toxic products going into our food, air, water and hundreds of products. Thus, it is no surprise that "chemical reform" bill adopted by the Senate this month was loudly applauded by the same chemical companies that have spent decades polluting our environment and endangering our health.
Like observers at a street hustler's three-card monte game, we should be skeptical when a shill walks away loudly proclaiming his prowess as the game's big winner.
By creating phony "chemical safety" reform legislation, the chemical industry wants to create the impression of a strong new safety system, while maintaining many of the worst aspects of the current, outdated rules. They want to convey the impression of a strong new role for the Environmental Protection Agency, while insuring that EPA won't have the funds needed to protect the public. The new bill also gives industry a federal trump card they can use to invalidate hundreds of stronger state-level chemical rules, and gives industry a wedge to use in international agreements to pressure other countries to "harmonize" their stronger chemical rules down to the weaker U.S. approach.
But perhaps most critically, the chemical industry intends to use the new rule to neutralize efforts that major businesses are making in response to consumer pressure to sell safer products. This is no conspiracy theory, but is the industry's stated goal. Following pressure from environmental, health and consumer groups, companies like Target, Walmart, Ashley Furniture, Macy's and many other companies have recently vowed to stop selling many products made with certain dangerous chemicals. As chemical industry proponents told the Journal, they expect that Congress' impotent new chemical safety bill will "stop momentum by retailers and states to ban particular chemicals in consumer products."
Given the likelihood that our government's chemical rules will remain inadequate to protect our children and families, it is more important than ever that we continue pressuring retailers and other businesses to take action to protect us. Time and again such efforts have shown that companies will respond to pressure, even when no laws compel them to act. Recent research shows that even when they make small changes in response to activist pressure, corporations are opening the door to larger, longer-term changes.
So don't be conned when you hear the virtues of the new "chemical safety" bill. Instead, join with the millions of Americans who are standing up for our right to be free from the chemical industry's experiments on our health.
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States Press EPA For Alternatives To Using DfE Logo On Pesticide Labels
Dec 22, 2015 | InsideEPA
By Dave Reynolds
State regulators are urging EPA to change its approach to expanding the agency's "safer chemicals" labeling program to pesticide products, reiterating that logos suggesting certain pesticides are "safer" raise legal hurdles and safety concerns, and pressing EPA to find another way to educate consumers about pesticide formulations.
EPA is weighing using its Design for the Environment (DfE) logos on certain pesticide products and has pushed for states to allow products bearing the logo on the market so EPA can evaluate consumer reaction to its use on pesticides. DfE is a voluntary EPA program that traditionally has evaluated cleaning products and related chemicals, allowing those products that meet its standards to bear the DfE label. The agency sought to boost the program's public awareness with a rebranding effort, changing the program's name to Safer Choice and updating its logo early this year.
But during a Dec. 8 meeting of the State [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)] Issues Research and Evaluation Group (SFIREG) state regulators reiterated arguments that laws in some states preclude safety claims on pesticides, and that suggesting products are safer could lead to misuse.
"Some states cannot and will not register products with the DfE or Safer Choice logo on the product," Bonnie Rabe of the New Mexico Department of Agriculture said. "Is there another possibility that states can consider -- that we could support -- and this program could at least be workable?"
Although EPA pesticides officials offered to meet with states to address the concerns, they also argued that the Safer Choice program is a valuable tool for driving industry to formulate less harmful products. Forbidding producers from using either the DfE or Safer Choice logo on pesticides would remove a significant incentive, officials said.
"EPA is supportive of this program because we believe this is information that consumers want and need," said Jennifer McLain of EPA's Office of Pesticide Programs. "It will ultimately lead to better environmental and human health protection to have consumers choose products that are less harmful to them and the environment."
EPA staff also balked at state regulators' suggestion of adding a website address to product labels where consumers could review product ingredients, arguing that consumers are unlikely to research product details online while shopping.
During a September SFIREG meeting Marty Monell, deputy director of the pesticides office, said FIFRA rules preclude use of comparative language on pesticide products, but that the agency is piloting using the old DfE logo, rather than the new Safer Choice logo, on pesticides and considering a rule change to allow future use of the Safer Choice logo.
Seeking to quell states' concerns, Monell told the Sept. 21 meeting that pesticide producers wanting to use the DfE logo must submit products for an independent hazard screen to determine whether ingredients are "greener or safer" than other similar products on the market.
So far the program has focused on antimicrobial pesticides and is considering screening bio-pesticides, Monell said, though she skirted a question from states on whether EPA would eventually allow the logo on conventional pesticides.
States' Opposition
At the Dec. 8 SFIREG meeting, state regulators reiterated their opposition to using either the DfE or Safer Choice logo on pesticide products, arguing some states are legally precluded from any safety claims on labels, and that a logo suggesting safety could lead to misuse.
"The big disconnect is the idea that somehow you can convey to a consumer that a [pesticide] product is inherently safe, that is completely the opposite of what FIFRA is all about," said Steven Dwinell of the Florida Department of Agriculture and Consumer Services.
State regulators also said allowing the DfE logo on pesticides would increase risk of mislabeling. States have long bristled at past EPA failures to assist state enforcement efforts against pesticides mislabeled as minimum-risk, due to resource concerns. Under section 25(b) of FIFRA, EPA allows manufacturers of so-called minimum-risk products, such as personally applied insect repellants, a waiver from the law's usual data requirements on products' efficacies.
EPA staff expressed interest in addressing states' concerns, but pushed back on the specifics. One agency official argued consumers understand that a product labeled as "safer" than another does not imply either is safe. "It has safer characteristics and a safer hazard profile than other chemicals, and it's very clearly laid out, and people get it."
Staff also said agency enforcement officials are willing to tackle misuse of pesticide labels. Officials also asked states to provide details of any state laws that would preclude use of the DfE labels so EPA can review the information and possibly address the legal hurdles. They also offered to meet with states to address the concerns.
SFIREG Chairman Cary Giguere said states would form a work group to compile their concerns and provide information to EPA. He also noted that the Consumer Specialty Products Association (CSPA) had recently written to SFIREG seeking support for use of the label on certain pesticide products.
Safer Products
A CSPA official tells Inside EPA that the Safer Choice program has been successful in driving safer consumer products, and that pesticides should not be excluded. In order to bear a DfE logo, products must go through the FIFRA registration process and an additional stringent screening, the source says, noting that only 10 antimicrobial pesticides have passed so far.
But because of the impasse between EPA and state pesticide regulators, pesticide products bearing the DfE logo on their labels have been unable to go on the market, EPA officials have said.
Although it would require a change in federal rules, the CSPA source said the cleaning products industry would like for EPA to eventually use the Safer Choice logo instead of the DfE logo. While acknowledging SFIREG opposes using either logo on pesticides, the source said the opposition stems from past frustrations with enforcing against minimum-risk pesticides, which is a separate issue. We "understand the concerns of the states and want to educate them as to some of the newest innovations in the antimicrobial industry that are driving toward better chemistry," the source says. "There should be every incentive to drive the newest and best and safest technologies for pesticides."
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Environmentalists Oppose Halting Crude-by-Rail Case
Dec 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental groups are urging a federal court not to halt litigation over a Transportation Department rule governing movement of crude oil and other flammable liquids by rail, calling the government's reasoning “overblown” (Am. Petroleum Inst. v. U.S., D.C. Cir., No. 15-1131, motion opposed, 12/18/15).
In a Dec. 18 filing, attorneys for Scenic Hudson, the Sierra Club and seven other groups told the U.S. Court of Appeals for the District of Columbia Circuit that Congress's five-year highway law would alter the scope of challenges to the Final Tank Car Rule, but that the changes are “relatively straightforward.”
The government's requested 60-day halt in proceedings is unnecessary to understand the impacts of law on the rule and “time is of the essence” for the lawsuit to be decided, they said.
“The failure to have 40 [miles per hour] speed limits beyond high-threat urban areas is creating inordinate risks of accidents and oil spills during the pendency of this litigation. And rail fleet decisions are currently being made based on the weaker retrofit standards,” the environmental groups said. “These challenges to the Final Tank Car Rule remain after the enactment of the FAST Act and the passage of legislation affecting other claims provides no reason for any further delays in briefing and resolving these claims.”
The litigation centers on the Transportation Department's Pipeline and Hazardous Materials Safety Administration rule (RIN 2137-AE91) that sets requirements for tank cars, train speed, liquid classification and other issues. The rule was finalized in May, but Congress changed a number of the agency's decisions through its FAST Act (Pub. L. 114-94)—the highway law—affecting requirements for brakes and other areas.
The government filed its motion Dec. 15 to hold the litigation, which also includes industry groups such as the American Petroleum Institute, in abeyance through Feb. 12. Several of the industry groups and other petitioners aren't opposed to the stay (242 DEN A-9, 12/17/15).
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Railroad Groups Consider New Challenge to Crude-by-Rail Law
Dec 23, 2015 | BNA Daily Environment Report
By David McAfee
Some attorneys say the U.S. railroad industry is likely to once again file a challenge to California's 2014 law imposing a number of new crude-by-rail regulations, some of which will be enforceable on Jan. 1, 2016, after their previous lawsuit was dismissed as unripe.
The Association of American Railroads, Union Pacific Railroad Co. and BNSF Railway Co. previously challenged California's S.B. 861, which includes oil spill contingency plan requirements, but that case was tossed and deemed untimely in June. The plaintiffs were seeking to enjoin enforcement of the statute, which they argued was preempted by federal law.
Richard H. Allan, managing partner of Marten Law PLLC's Portland office, advises clients on the environmental aspects of real estate and business transactions. He says lawyers following the case “expect AAR to file a challenge to the new rules,” which were adopted as emergency rules with a Jan. 1 deadline for regulated entities to submit contingency plans and proof of financial responsibility.
“We expect it will be important to the AAR to send a signal that other states should not follow in California's footsteps,” Allan told Bloomberg BNA in a Dec. 22 e-mail. “AAR and members will want a court decision to discourage a wave of new regulation.”
AAR, however, says it is unsure if it will renew the challenge. Ed Greenberg, a spokesman for the association, told Bloomberg BNA Dec. 22 that it is “continuing to evaluate its options regarding this matter,” and declined to provide additional comments.
Other experts familiar with the matter say S.B. 861 is important because the federal rule, which is also facing separate challenges, doesn't address oil spill plans or financial assurances like the California law does. An attorney for environmental law firm Earthjustice, which represented conservation groups hoping to defend the law in the earlier case, says they “will likely participate as amicus or intervenors” if another challenge is filed.
Railroad Groups Challenge the Law
The railroad groups filed their initial complaint challenging the California statute on Oct. 7, 2014, arguing that state officials admitted that significant portions of the new rules were invalid (Ass'n of Am. R.R. v. Cal. Office of Spill Prevention and Response,E.D. Cal.,No. 2:14-cv-02354-TLN-CKD, 10/7/14 );(197 DEN A-10, 10/10/14).
The plaintiffs also said they wanted to discharge their “federally mandated common carrier duties free of interference from a patchwork of 50 divergent, sometimes conflicting, State regulatory regimes.”
“In June 2014, the State of California passed a law, S.B. 861, imposing a variety of regulations for the transportation of oil by rail that squarely overlap with existing federal rules,” attorneys for the challengers wrote in the original complaint, which named the California Office of Spill Prevention and Response and others as defendants.
“The new State law requires railroads to take a broad range of steps to prevent and respond to oil spills, on top of their myriad federal obligations concerning precisely the same subject matter.”
Earlier Case Dismissed
On June 18, 2015, Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California granted the defendants’ motion to dismiss on “ripeness” grounds. He said the plaintiffs only generally alleged that they will be injured once the regulations come out, and even then those injuries would be the cost of compliance (119 DEN A-10, 6/22/15).
“Therefore, Plaintiffs do not prove that they in fact have a concrete plan to violate S.B. 861, but rather argue that compliance will cost them a significant amount of money,” Judge Nunley wrote in the nine-page order.
Allan says the court's decision left some question regarding whether the adoption of the regulations would make the dispute justiciable.
“It is possible to read the court's decision as based on the potential for enforcement,” Nunley told Bloomberg BNA. “Thus, the State may argue that the adoption of the regulations is not enough unless coupled with a more direct threat of enforcement.”
Federal Preemption
Allan also noted that a future challenge to the rules would probably focus on federal preemption, just as the original did. He says AAR has argued for a “field” preemption, claiming Congress has occupied the field of railroad activity regulation and that states cannot encroach on that despite similarities in the laws.
“Simply put, railroads don't want to deal with a multiplicity of state regulations—they prefer one set of federal regulations,” Allan said, adding that this is an “important issue for railroads, and not only in the area of oil spill regulation.”
“For interstate railroads, a uniform system of federal regulation is not of much benefit if it is overlain by dozens of sets of state regulations,” he said.
Other State Rules
Some environmental attorneys say the results from this dispute could determine whether other states craft rules similar to those passed in California. The state of Washington recently adopted H.B. 1449, which requires refineries to notify the state ecology department in advance of crude-by-rail shipments (96 DEN A-7, 5/19/15).
But Allan says that statute “differs from California's law in significant respects.”
For example, he said, H.B. 1449 expressly prohibits state regulators from using oil spill financial responsibility information “as a basis for engaging in economic regulation of a railroad company,” or “for penalizing a railroad company.”
“But oil train traffic, which has increased tremendously in recent years, will persist and may increase. There is no near-term prospect of oil trains being displaced by major new pipelines, and Congress has just lifted the ban on export of U.S. crude oil that was enacted as part of the Energy Policy and Conservation Act of 1975,” Allan told Bloomberg BNA. “Thus, crude oil may travel by train not only to U.S. refineries, but also now to marine terminals for export. We would expect state and local lawmakers to feel continuing pressure to regulate these trains.”
Earthjustice says there have been no other railroad challenges to state rail safety regulations. If such complaints are filed, however, the group “would consider defending” the laws, according to Patti Goldman, a managing attorney for the group's northwest regional office in Seattle.
Representatives for Union Pacific Railroad Co., BNSF Railway Co. and the California Office of Spill Prevention and Response didn't immediately return Bloomberg BNA's requests for comment Dec. 21.
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Canadian Regulator Blames Earthquake on Fracking
Dec 23, 2015 | BNA Daily Environment Report
By Alan Kovski
The British Columbia Oil and Gas Commission has blamed an earthquake of 4.6 magnitude on hydraulic fracturing.
The determination was issued by the commission Dec. 15 after an investigation that included a review of operational and seismological data, including all active oil and natural gas operations within a 10-kilometer radius of the epicenter of the Aug. 17 seismic event.
The commission concluded that the quake was triggered by fluid injection during hydraulic fracturing at a well operated by Progress Energy Canada Ltd. within a kilometer of the epicenter of the event in northeastern British Columbia. The commission described the quake as “weak to light” and said there were no reports of injury or damage at the surface.
Progress Energy Canada would not endorse or dispute the commission findings when contacted Dec. 22.
The company, following provincial regulations, stopped operations at the well and notified the commission when the quake was felt in August. The well was being drilled in the North Montney shale gas basin.
After the commission and the company discussed the event, the oil and gas commission approved a mitigation plan that allowed the company to resume fracturing at a reduced pumping rate.
Factors Cited
The provincial commission buttressed its determination by listing factors that led it to decide hydraulic fracturing was to blame:
• absence of seismic events before and after fracturing operations;
• epicenter of the event was within one kilometer of the operator's well (A-99-J/94-B-16);
• fracturing operation at the well was being completed at the time of the event; and
• based on “felt” reports, ground motion appears to have been strongest in the vicinity of the well.
The commission did not suggest a need for additional drilling restrictions. It cited its recent strengthening of seismic monitoring and mitigation measures for hydraulic fracturing, or fracking.
Progress Energy Canada, a subsidiary of the Malaysian government oil and gas company Petronas, released a statement saying, “We will continue to be diligent and monitor our activities and adjust our operations as needed, such as decreasing fluid volume and pressure. We take this incident very seriously.”
Cause of Quake
Although seismic activity has been attributed to pumping of wastewater down deep disposal wells, it is rare for a regulator to conclude that hydraulic fracturing has caused a quake strong enough to be felt by someone on the surface.
The Ohio Department of Natural Resources tightened up the state's permitting for oil and gas wells after the department's geologists concluded a quake in early 2015 may have been triggered by fracking at a Hilcorp Energy Co. well (71 DEN A-11, 4/14/14).
That conclusion was later reinforced by a review by researchers at Miami University of Ohio (04 DEN A-4, 1/7/15).
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Clean Power Plan Draws New Lawsuits, Supporters
Dec 23, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's carbon dioxide rules for power plants gained some new allies and more than a few new detractors as the deadline passed to challenge the standards.
Dec. 22 was the deadline to file legal challenges in the U.S. Court of Appeals for the District of Columbia Circuit to the EPA's Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the existing fleet of power plants in each state, as well as the carbon dioxide new source performance standards (RIN 2060-AQ91) for new and modified power plants.
Several industry groups launched new assaults on the Clean Power Plan, which already faces opposition from a majority of states and several utility and labor groups. The latest challenges are expected to be consolidated with existing lawsuits targeting the rule (West Virginia v. EPA, D.C. Cir., No. 15-1363, response filed, 12/21/15).
The latest legal challenges to the Clean Power Plan in the D.C. Circuit are:
• Prairie State Generating Co. v. EPA, No. 15-1472,
• Minnesota Power v. EPA, No. 15-1474,
• Denbury Onshore LLC v. EPA, No. 15-1475,
• Energy-Intensive Mfrs v. EPA, No. 15-1477,
• Nat'l All. of Forest Owners v. EPA, No. 15-1478,
• Biogenic C02 Coal. v. EPA, No. 15-1479,
• Local Gov't Coal. for Renewable Energy v. EPA, No. 15-1483, and
• Am. Forest & Paper Ass'n v. EPA, No. 15-1485.
Opponents of the Clean Power Plan are seeking expedited consideration of their lawsuits with core legal issues with the rule to be addressed first. The EPA opposes that request (245 DEN A-1, 12/22/15).
Cities Defend Rule
While the Clean Power Plan faces stiff opposition from states and industry groups, the rule also got an influx of support after several of the nation's largest cities sought to defend the carbon dioxide regulation.
The National League of Cities, U.S. Conference of Mayors as well as the cities of Baltimore, Houston, Los Angeles, Minneapolis, Salt Lake City and San Francisco are seeking to defend the Environmental Protection Agency's Clean Power Plan. They filed a motion Dec. 22 to participate in the litigation as amici curiae.
“The acute relevance of climate change to local governments’ responsibilities and activities has led members of the Local Government Coalition to grasp both the need to adapt to climate change and the costs of failing to act to mitigate it,” the groups told the U.S. Court of Appeals for the District of Columbia Circuit. “Prompted by lived experience and by the prospect of future impacts, they have made efforts both to adapt to their changing climatic circumstances and to slow or eliminate their greenhouse gas emissions.”
Separately, Los Angeles sought permission Dec. 18 to intervene on the EPA's behalf through its Department of Water and Power.
Eighteen states and several environmental groups already have sought to defend the rule as well.
Lawsuits Target New Power Plant Standards
In addition to new challenges to the EPA's Clean Power Plan, additional lawsuits were filed targeting the new power plant standards.
Several other challenges already have been filed to the rule, and North Dakota has said it plans to argue that the EPA has not adequately demonstrated that carbon capture systems have been proven to be a readily available pollution control technology (North Dakota v. EPA, D.C. Cir., No. 15-1381, statement of issues 11/27/15; 230 DEN A-19, 12/1/15).
The latest lawsuits targeting the new source performance standards are:
• Biogenic CO2 Coal. v. EPA, No. 15-1480, ,
• Am. Coal. for Clean Coal Electricity v.EPA ,
• Luminant Generation Co. v. EPA, No. 15-1482, and
• Nat'l Rural Electric Coop. Ass'n v. EPA, No. 15-1484.
States Seek Reconsideration
In addition to lawsuits, states also petitioned the EPA to administratively reconsider aspects of the Clean Power Plan.
Kentucky, which already has joined lawsuits to overturn the Clean Power Plan, asked the EPA Dec. 21 to reconsider the rule in a petition for reconsideration, arguing the state faces the most stringent emissions reduction requirements in the country driven by unrealistic assumptions about the availability of renewable energy.
“Kentucky was arbitrarily mandated a low emissions rate by placing it in the Eastern Interconnection region, which allegedly holds the most renewable potential, 67.8 percent as opposed to 9.7 percent for the Texas Interconnection Region for 2022,” Charles Snavely, secretary of the Energy and Environment Cabinet, said. “Placement in that region requires Kentucky to have the lowest emission rate in the country, and to generate renewable energy at an unrealistic rate.”
Montana also petitioned the EPA Dec. 21 to stay implementation of the Clean Power Plan, arguing the rule had changed so drastically between proposal and its final version that it needs to be reconsidered.
“The reasons for our petition for reconsideration and for a stay are generally that the rule differs so significantly and substantially from the proposed rule that our state did not have a fair opportunity to evaluate, understand and comment on the rule actually adopted,” Attorney General Tim Fox said. “This means, in turn, that your agency acted without a fair working knowledge of the impacts of the final rule. The changes in the final rule in fact violate the Administrative Procedure Act because they are not a logical outgrowth of the proposed rule, and our state could not have reasonably anticipated the changes which were implemented in the final rule.”
A coalition of 16 states, the National Mining Association, Texas and New Jersey also have filed petitions with the EPA seeking reconsideration of aspects of the rule.
The agency has not yet formally responded to those requests, but it is defending the Clean Power Plan as “fair, flexible and designed to strengthen the fast-growing trend towards cleaner and lower-polluting American energy” in preliminary responses (173 DEN A-1, 9/8/15).
SBA Wants Federal Plans Re-Proposed
The Small Business Administration recommended in comments submitted Dec. 21. that the EPA propose a new federal plan for each state that fails to submit its own compliance strategy for the Clean Power Plan.
The EPA should also issue a supplemental regulatory flexibility analysis to help small businesses understand the impact the federal plan would have on them, the Small Business Administration said.
“This additional action, later in the process and after neighboring states have made their own decisions, will provide the small entities with the needed information to evaluate the likely impacts of the federal plan and provide useful information about reasonable alternatives,” the Small Business Administration said.
The EPA has proposed a federal plan (RIN 2060-AS47) that it would issue for states that choose not to develop their own Clean Power Plan compliance plans. The proposed plan includes both rate-based and mass-based emissions trading programs, though the agency has indicated it may only finalize one option.
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Cities Move To Defend Obama Power Plant Rules
Dec 22, 2015 | The Hill - E2 Wire
By Devin Henry
Cities and local government groups stepped in Tuesday in an effort to protect key Obama administration climate rules from state and industry lawsuits.
Fourteen cities joined the National League of Cities and the U.S. Conference of Mayors in an amicus brief supporting new Environmental Protection Agency (EPA) rules governing carbon emissions at power plants.The cities and groups said they back the Clean Power Plan as a way to address climate change, an issue they cite as one already affecting populaces around the country.
“Prompted by lived experience and by the prospect of future impacts, [cities] have made efforts both to adapt to their changing climatic circumstances and to slow or eliminate their greenhouse gas emissions,” the brief, filed in the Court of Appeals for the District of Columbia, said.
“Because the Clean Power Plan would further these goals and efforts, and would do so on a nationwide basis, the members of the Local Government Coalition have a uniquely well-informed view of the importance of the Clean Power Plan.”
The cities join litigation that has made either Clean Power Plan opponents or supporters out of most states around the country.
More than two dozen states — led by West Virginia and Texas — are suing over the plan, which the Obama administration published in October. Eighteen states, led by New York, have intervened in support of the new rule, which is the cornerstone of Obama's climate agenda.
Cities joining today’s filing include Los Angeles, Houston, San Francisco, Baltimore and Minneapolis. In statements, mayors said they are best able to defend the plan because they are “on the front line” of climate change adaptation.
“The Clean Power Plan will be integral in protecting communities from the most extreme climate impacts and furthering innovation in response to climate change,” said Michael Burger, the author of the motion and executive director of the Sabin Center for Climate Change Law at Columbia Law School.
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Michigan to Seek Two-Year Clean Power Plan Extension
Dec 23, 2015 | BNA Daily Environment Report
By Nora Macaluso
Michigan is on track to submit its strategy for complying with the Environmental Protection Agency's Clean Power Plan (RIN 2060-AR33) by the Sept. 6, 2016, deadline and will seek a two-year extension for submitting a final plan so it can go through the state's rulemaking process, state officials said.
“If that request is denied, Michigan will be unable to meet the federal requirement,” Dan Wyant, director of the Michigan Department of Environmental Quality, told reporters during a Dec. 22 conference call. The EPA's timeline is “pretty aggressive,” and other states are likely to ask for similar extensions, he added.
The agency has said getting the two-year extensions for state plans will not be a “heavy lift” (204 DEN A-12, 10/22/15).
Michigan Foresees Compliance
After reviewing results of baseline modeling scenarios, officials have concluded that Michigan would remain in compliance with the rule until 2025 or 2028 without taking additional action, Valerie Brader, executive director of the Michigan Agency for Energy, said during the call. Under four separate scenarios—two mass based and two rate based—the state would be able to maintain compliance, she said. Action will have to be taken before that time frame, however, to ensure compliance for the longer term, she said.
Some 25 coal units are scheduled for retirement by 2020, which will be “quite helpful in terms of reducing emissions,” Brader said, adding that continuing to reduce energy waste and using renewable sources are likely to help.
The assumptions used in the modeling didn't contemplate emissions trading with other states, though that idea is “certainly something we'll be discussing with our stakeholders, as well as look at in future modeling,” she said.
Offered for Comment
Beginning in January 2016, business and environmental groups, and the public will have the opportunity to provide input on the plan, Brader said. Comments will be compiled into summary reports by late April, allowing officials to put together an initial draft of the implementation plan and put that out for comment by late summer, she said.
Though Michigan Attorney General Bill Schuette (R) is part of a lawsuit challenging the plan, the administration of Gov. Rick Snyder (R) has no intent to join that effort, according to Brader. “We generally believe having a compliance plan in place protects Michiganders from having our decisions made” by the federal government, regardless of the fate of the rule in court, she said.
Dec. 22 was the deadline to file lawsuits challenging the Clean Power Plan (see related story).
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Michigan Officials Say State 'Well On Our Way' To Carbon Rule Compliance
Dec 22, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Michigan is on track to comply with EPA’s Clean Power Plan without having to make drastic course corrections, state officials said today.
Policies already in place will allow the state to hit its emissions-reduction targets through at least 2025, according to Valerie Brader, executive director of the Michigan Agency for Energy. That projection is based on four models by Synapse Energy Economics.
“What this means for Michigan is that we are well on our way to achieving compliance with the carbon rule, that we could essentially stay the course for a decade and continue to be in compliance with the rule,” Brader told reporters on a conference call.
The state still will have to take additional actions to meet its ultimate 2030 target, she added. Michigan has made significant reductions in recent years with the announced retirements of 25 coal-fired power plants.
Republican Gov. Rick Snyder turned heads in September when he said his state would maintain control over its electric sector by working on an implementation plan even as Attorney General Bill Schuette challenges the rule in court.
Michigan will seek input from utilities, environmentalists and others starting in January, with plans to release a draft report for public comment by late summer, Brader said. That puts Michigan on track to meet the initial Sept. 6 submission deadline, though the state still plans to ask for a two-year extension.
Click here for Michigan’s modeling baseline input assumptions, which Brader described as conservative, and here for reference case modeling results.
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Kentucky, Wyoming ask EPA to reopen power plant carbon rule
Dec 22, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Kentucky and Wyoming have asked EPA to reopen its Clean Power Plan, arguing that major additions and changes to the final version of the rule left them without the opportunity to fully weigh in.
The coal-heavy states were among those that saw the biggest percentage increase in their emissions targets — a “surprise switcheroo” barred by law, according to Wyoming Attorney General Peter Michael.
“This significant, inexplicable, and unreasonable change in course by the EPA cannot stand without reopening the rule,” Michael wrote in his petition for reconsideration.
Both Michael and Kentucky Energy and Environment Cabinet Secretary Charles Snavely outlined other issues. Among other complaints, the states say EPA misjudged the potential to bring new renewables online and criticize the agency's decision to modify the formula it used to set state emissions targets.
“Whatever policy differences may exist between Wyoming and the EPA related to the Clean Power Plan, surely both parties agree that this rule should be the result of a fair process based on accurate data and sound methods,” Michael concluded.
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Greenhouse Gas Reporting Rule Revisions Proposed
Dec 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency is proposing changes to how power plants, refineries, chemical plants, underground coal mines and other large facilities report their greenhouse gas emissions in what the agency described as the latest effort to improve the implementation and efficiency of the program.
The proposed rule would also create new or revised confidentiality determinations for various pieces of data required to be submitted under the program. The agency would phase in the changes between the 2016 and 2018 reporting years at a cost of $1,081,830 per year for all the combined facilities affected, once fully implemented.
The proposed action, which would amend the reporting requirements at 40 C.F.R. Part 98, will be subject to 45 days of public comment following its publication in the Federal Register. No public hearings are planned, and the EPA said it intends to finalize the revisions in 2016.
EPA Administrator Gina McCarthy signed the proposed rule Dec. 21.
According to the EPA, the proposed rule (RIN 2060-AS60) is a “continuation of the effort” to improve implementation of the greenhouse gas reporting program, which first came into existence in 2009. The agency first told Bloomberg BNA of its plan to revise aspects of the program in September (189 DEN A-1, 9/30/15).
30 Subparts Affected
The proposed revisions cover 30 subparts of the reporting program. According to a fact sheet, some of the changes would remove reporting requirements for facilities with little or no emissions and eliminate reporting requirements for data no longer considered necessary.
Other changes would improve the quality of the data collected, according to the EPA. For example, underground coal mines would be required to use one of two methods to report emissions from ventilation and would lose the option to use a third option that the agency considers less accurate.
Some revisions would make changes to how emissions can be calculated to better reflect the practices and emissions from industries, according to the agency. One proposed change, for example, would amend the conditions that could be considered when calculating emissions from municipal solid waste landfills.
The EPA is also proposing a series of minor clarifications and correction that it said would “provide additional information for reporters to better or more fully understand compliance obligations” and “improve the public's understanding of the rule.”
Phased In Over Time
The bulk of the changes would not be implemented until the 2017 reporting year, according to the proposed rule's text. That will be done to allow “sufficient lead time for reporters to implement the proposed changes following the promulgation of the final rule revisions.”
In reporting year 2016, the only changes that would go into effect involve Subparts I and HH concerning electronics manufacturing and municipal solid waste landfills, respectively. A revised definition of “gas collection system or landfill gas collection system” would also take effect that year.
Most of the additional revisions would then go into effect during reporting year 2017, except for changes to nitric acid production (Subpart V), petroleum refineries (Subpart Y), underground coal mines (Subpart FF) and suppliers of industrial greenhouse gases (Subpart OO). Those impacted sectors would face new reporting requirements for reporting year 2018.
Lawsuit Filed Over Earlier Rule
The EPA has continually revised data quality requirements and confidentiality determinations under the program. The most recent update came in October when the agency made changes to the reporting requirements for oil and natural gas companies (204 DEN A-15, 10/22/15).
The Gas Processors Association filed a lawsuit Dec. 21 challenging that October regulation (80 Fed. Reg. 64,262) in the U.S. Court of Appeals for the District of Columbia Circuit (Gas Processors Ass'n v. EPA, D.C. Cir., No. 15-1473, 12/21/15).
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Obama Says Anger Over His Emissions Rules ‘Legitimate’
Dec 23, 2015 | BNA Daily Environment Report
By Anthony Adragna
It is understandable and “perfectly legitimate” for citizens, particularly those from traditionally coal-dependent regions, to feel threatened and vigorously oppose this administration's environmental policies, President Barack Obama said in an interview released Dec. 21.
Regardless of the reality that other factors, including the low price of natural gas, have made it less attractive to build coal-fired power plants, Obama said he understands why the rhetoric of a “war of coal” would be appealing to many.
“If you are living in a town that historically has relied on coal and you see coal jobs diminishing, you probably are going to be more susceptible to the argument that I've been wiping out the economy in your area,” Obama told NPR. “If somebody tells you that this is because of Obama's war on coal, well, you know, that's an argument you may be sympathetic to. And that's perfectly legitimate.”
Senior Republicans, including Senate Majority Leader Mitch McConnnell (R-Ky.), have repeatedly criticized the Obama administration for waging a “war on coal” through efforts like the Environmental Protection Agency's Clean Power Plan, which aims to slash carbon dioxide emissions from the nation's existing power plants (174 DEN A-7, 9/9/15).
Obama Defends Efforts
Despite the sharp criticism, the president said his regulatory efforts are perfectly legal and predicted they would spur additional private sector investments in clean energy.
“We are confident that [the Clean Power Plan] is within our power,” Obama said.
Investments in technologies like solar and wind power will be unleashed through many of the government's environmental efforts and progress in those sectors would be difficult for any future Republican president to undo, Obama argued.
“By the time that even a Republican president came into office, what you would have seen would be a growing realization that not only should we do something about climate change, but it's not only a challenge, it's also an opportunity, that it's creating jobs, that it's making a difference in people's lives, that consumers are saving money,” he said. “A lot of these things get institutionalized not just through government policy but through the impact that it has on the marketplace and the private sector.”
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Dec 22, 2015 | The Wall Street Journal
President Obama continued to use executive agencies to exceed his constitutional power in 2015, none more so than the Environmental Protection Agency. The courts have pushed back on occasion, and now Congress is beginning to use its powers to do the same.
Though it didn’t get much media attention, Congress used the Congressional Review Act to put two bills blocking EPA rules on Mr. Obama’s desk the past two months. One would have nullified the EPA’s draconian new Clean Power Plan that will force lower emissions from existing power plants. A second measure is designed to block new coal-fired plants.
The Congressional Review Act allows a bill to pass without 60 votes in the Senate, and the GOP put together a bipartisan majority in both houses. Mr. Obama rejected both measures with rare pocket vetoes that let a President refuse to sign a bill when Congress is out of session, as it has been since Friday. ENLARGE
The bills were still useful in showing Mr. Obama’s hand to voters in energy states and showing the courts that the legislative branch rejects Mr. Obama’s regulatory interpretation of Congressional statutes. This could help in particular the 27-state legal challenge to the Clean Power Plan.
Meanwhile, Congress is also using its power of the purse to complicate the EPA’s legal evasions. Conservatives are understandably frustrated that last week’s budget bill didn’t include policy riders to halt new climate and water regulations—though GOP disunity didn’t help. But Republicans did at least pinch the EPA’s budget.
The EPA received $8.1 billion or $451 million less than Mr. Obama had demanded, and no increase from the year before. Congress has cut the EPA’s allowance by $2.1 billion, or 21%, since fiscal 2010. This has forced the EPA to cut more than 2,000 full-time employees over the same period, and its manpower is now at the lowest level since 1989 (see nearby chart).
Mr. Obama sought an additional $72.1 million to turbocharge his extralegal climate rule on power plants. That request included $8.3 million for the EPA’s science and technology groups, which do the phony modeling to justify regulations. It also included $68.3 million for the agency’s environmental programs and management department, which is where the minions draft and implement the President’s climate initiatives. Congress denied every penny.
It also denied the nearly $30 million extra that Mr. Obama wanted for the legal department that defends the agency in court. The President’s budget request complained that “over the last five years, the number of lawsuits EPA counseling attorneys have handled during a year has more than doubled, increasing from approximately 240 in 2009 to well over 500 in 2013.” Well, yes, that happens when you keep breaking the law. The GOP budget doesn’t provide EPA the funds to hire additional attorneys.
The budget also zeroed out the nearly $44 million increase Mr. Obama sought for his “water quality protection” initiatives. At least some of that money would have gone to ramping up the EPA’s new Waters of the United States Rule that empowers the feds to regulate just about every creek and pond in the country.
Republicans were able to insert a few modest policy riders in the budget. Congress barred the EPA from attempting to regulate greenhouse gas emissions from livestock, and it added a requirement that the Administration inform Congress how much it is spending on climate initiatives across the federal bureaucracy.
More might have been possible if Democrats hadn’t blocked individual spending bills in the Senate to force a giant omnibus that gave Mr. Obama more leverage by threatening to shut down the government. But the budget pressure on the EPA and the use of the Congressional Review Act show that GOP control of Congress has made a difference.
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Advocates Seek to Intervene in Effluent Limit Challenges
Dec 23, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
The Sierra Club and three other advocacy groups filed a joint motion to intervene in a lawsuit challenging the recently issued federal effluent guidelines to regulate toxic discharges from power plants (SW Elec. Power Co. v. EPA, 5th Cir., 15-60821, 12/21/15).
“We have filed a motion to intervene to help defend the Environmental Protection Agency's effluent limitations rule that puts in place important public health protections,” Casey Roberts, the group's staff attorney, told Bloomberg BNA Dec. 22. “The coal and power plant industry wants to overturn this rule and we want to help defend it.”
The groups—Sierra Club, Waterkeepers Alliance, Environmental Integrity Project and Clean Water Action—filed their motion Dec. 21 in the U.S. Court of Appeals for the Fifth Circuit, which has consolidated four other petitions for review of the rule (237 DEN A-6, 12/10/15).
The power plant industry is represented by the Utility Water Act Group that joined Southwestern Electric Power Co., based in Louisiana, and Missouri-based Union Electric Co. in separate petitions seeking review of the rule setting effluent limitation guidelines for electric power plants. The industry has expressed concerns over compliance-cost estimates and the power plant data that EPA used to revise the limits, which were last updated in 1982.
Strengthening Rule
UWAG represents 208 individual energy companies and three national trade associations of energy companies—Edison Electric Institute, National Rural Electric Cooperative Association and American Public Power Association.
The three environmental groups also have filed their own petitions for review. Roberts said the groups support the final effluent limitation guidelines, but said their petitions are aimed at making the rule even stronger in areas where it appears to be weak, such as the provision allowing legacy wastewater to be exempted from regulation.
At issue is the final effluent limitation guidelines rule that the EPA published Nov. 3 for about 1,080 power plants that mostly affect coal-fired power plants and natural gas units and, to a lesser extent, nuclear power plants (80 Fed. Reg. 67,838).
The purpose of the agency's revised effluent limits (RIN 2040-AF14) is to regulate wastewater associated with flue gas desulfurization, fly ash, bottom ash, flue gas mercury control, combustion residual leachate from landfills and surface impoundments, nonchemical metal cleaning wastes, and gasification of fuels such as coal and petroleum coke.
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Energy Policy in Congress: The Good, the Bad, and the Ugly from 2015
Dec 22, 2015 | The Energy Collective
By Elizabeth Noll
For the first time in eight years both the House and Senate energy committees sought this year to advance bipartisan comprehensive energy legislation to address our nation's rapidly changing energy systems and aging transmission, storage, and other infrastructure. But in the end, partisan wrangling put a millstone around the neck of the House bill, while the Senate bill appears to have stalled. Facing hurdles in the normal process, Congress instead inserted major energy policy changes into the must-pass spending package last week.
Over the course of 2015 we saw meaningful proposals on everything from a long-term national energy-savings target to be met through energy efficiency programs and investments in grid modernization to damaging proposals that would allow pipelines to cut through our national parks as well as efforts to turn over a vast swath of the nation's publically owned ocean waters in the Atlantic and Arctic to drilling.
Alongside the hearings and energy bills introduced throughout the year, Congress haggled over harmful funding cuts and policy riders for important energy efficiency and renewable energy programs like those that help Americans save money and energy through minimum efficiency standards. Separately, members of Congress introduced packages renewing a set of expired or expiring clean energy tax credits that have helped speed the deployment of wind and solar power and level the playing field for clean energy--culminating in a sweeping "must-pass" spending package that included extending essential incentives for wind and solar power long enough to provide some real certainty for those industries and protecting funding levels for government programs for clean energy and energy efficiency.
This deal did come with a price--lifting the ban on exporting U.S. crude oil, a top priority for Republican leaders is yet another government giveaway promoting fossil production, inconsistent with the urgent need to address climate change.
Here's a greatest hits list of the energy policies we saw advance this year, including the good, the bad and the ugly:
A Bold Vision for a Clean Energy Future
Senate Democrats provided the boldest vision for energy policy this year, centering on the tools needed to boost our economy, create good-paying clean energy jobs, save Americans money on their electric bills, and curb the dangerous carbon pollution that drives climate change. One of the most promising provisions included in the package unveiled by Senator Maria Cantwell (D-WA) and allies was establishing a national carbon reduction goal of 2 percent annually through 2025, clearly recognizing our obligation to protect future generations from the ravages of climate change. Also included were clean energy tax incentives that promote investments in clean energy production relative to its contribution to reducing pollution.
Taken together, the bill's impact on our families, economy, and climate would be measurably positive. Americans would save $40 billion in energy costs over the next 15 years. We'd see creation or support of 3.5 million jobs. And climate pollution could drop by 34 percent by 2025. It represents the important complementary policies and tools utilities and states need to meet the Environmental Protection Agency's landmark Clean Power Plan to limit power plant emissions and would put our country on the right trajectory to invest in clean and energy-efficient technologies.
Status: Whole bill unlikely be considered by Republican-controlled Senate, but pieces could advance separately.
More than a Missed Opportunity
While each of the energy committees seemed to start this year with a goal of collaboration and an eagerness to develop comprehensive energy legislation in both the House and Senate, things quickly shifted and it wasn't long before bipartisanship was squarely in the rearview mirror with only a grab-bag of polluter priorities leading the way.
After months of hearings and negotiations beginning in April, the Senate Energy and Natural Resources Committee passed the Energy Policy Modernization Act of 2015 which does include some forward-thinking provisions along with a handful that need to be fixed. The forward-looking provisions included permanent extension of the Land and Water Conservation Fund that helps to create and maintain our national parks, refuges and forests; new programs to support grid storage and advanced electric transmission grid technologies; and long-supported policies to promote energy efficiency. However, Senator Lisa Murkowski (R-AK) signaled her priority by simultaneously introducing a separate bill that would open up offshore drilling in the Artic and off the Atlantic coast -- turning publically owned resources over to the oil industry at the risk of our coastal economies, communities, and climate.
Status: Full Senate hasn't considered either bill, unclear if either will get floor time.
Similarly, in the House Energy and Commerce Committee, bipartisan negotiations faltered after Republicans decided to craft a bill based solely on their desire to help the fossil fuel industry. In this bill, even America's energy efficiency policies, which have long had bipartisan support, fall far short of the opportunity available to catalyze investments in this cheap, clean energy resource. In fact, the North American Energy Security and Infrastructure Act of 2015 (H.R. 8) passed by the House this month represents the first piece of legislation in recent history with an energy efficiency section that has the potential to increase energy consumption and cost Americans billions--all while propping up outdated policies and an increasingly uncompetitive fossil fuel industry as well as broadly rolling back laws and processes that protect the environment and public health.
Status: House Passed and sent to Senate for consideration.
And the single missing piece from both of these "comprehensive" energy packages--any attempt to address the impacts of climate change, ignoring the values shared by millions of Americans.
Ugliest Attempt to Undermine Clean Energy Policy
Even though polls show Americans support energy efficiency measures, some members of Congress seem intent upon torpedoing energy-saving standards. The worst proposal of 2015 would have repealed all state and federal efficiency standards for appliances and equipment, even as these standards helped Americans consumers save $60 billion on their utility bills in 2014, alone, and resulted in the U.S. avoiding emissions of 2.3 billion tons of carbon dioxide, equivalent to the annual carbon emissions from nearly 500 million automobiles.
Consumers can't tell from looking at the outside of a building or an appliance whether it will unnecessarily gobble energy and few energy efficiency policies are as impactful or far-reaching as robust building energy codes and appliance standards to prevent that. Without standards, cost-effective energy efficiency opportunities would be lost, leading to unnecessarily high energy bills, increased energy consumption, as well as allow inefficient products made abroad for foreign markets to flood the U.S. market, undermining American manufacturers and destroying U.S. jobs.
Equally as troubling were the more targeted attempts by House Republicans to block progress on DOE's energy efficiency standards for furnaces, ceiling fans, and light bulbs. Thanks in large part to the leadership of House and Senate Democrats and the White House, the Office of Energy Efficiency and Renewable Energy at DOE saw a slight bump in funding for FY2016 and efficiency standards were protected for all products except light bulbs.
Looking forward to 2016
There was a lot of activity and debate on energy policy in 2015, but not around the priorities Americans value: protecting their air, water, communities and natural heritage. We need clean energy policy that responds to today's needs and rises to tomorrow's challenges. American innovation is delivering new technology and opportunities to enhance the nation's security and create jobs while reducing pollution. The energy decisions we make today will shape future generations' economic and environmental future. Here's hoping 2016 is brighter when it comes to clean energy policy in Congress.
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EPA Plans February Workshop on Background Ozone
Dec 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency will hold a workshop in February 2016 to seek input from state environmental officials on what guidance and assistance they need from the EPA to address elevated background concentrations of ground-level ozone.
The agency announced that it will hold a Feb. 24–25 workshop in Phoenix to discuss a new white paper on background ozone and to further discuss technical and policy issues associated with background ozone under more stringent ozone standards. The first day of the workshop will only be open to representatives of state, tribal and local air agencies, according to the agency's website.
Background ozone includes naturally occurring ozone and uncontrollable sources of pollution, including emissions of ozone precursors that are transported to the U.S. from Asia and Mexico. Many states, including several in the western U.S., raised concern that background ozone could make it difficult, if not impossible, to attain more stringent ozone standards (98 DEN A-5, 5/21/15).
Janet McCabe, EPA's acting assistant administrator for air and radiation, told Bloomberg BNA during a Dec. 16 interview on 2016 priorities that while background ozone was not a “deciding consideration” in EPA Administrator Gina McCarthy's October decision (RIN 2060-AP38) to revise the ozone standards to 70 parts per billion, the agency acknowledges that many states are concerned.
“It is an issue of concern and of interest for a number of stakeholders, especially some states in the West, where there can be some conditions that create relatively high background ozone,” McCabe said. “So we thought we'd get everybody together and have a technical discussion about the issue.”
In its Dec. 22 white paper, the EPA said existing modeling indicates that human-produced emissions from within the U.S. are “generally the dominant contributor” to measured exceedances of the ozone standards, but there can be infrequent events where ozone levels approach or exceed the new 70 ppb standards due to background sources. The white paper also outlines several “regulatory relief mechanisms” that states can use to address violations of the ozone standards that result from high background levels. Those tools include the exceptional events policy, which allows for the exclusion of data affected by wildfires and other uncontrollable events, the EPA's ability to designate a nonattainment area as a “rural transport area” and the Clean Air Act's international transport provisions under Section 179(b) of that law.
The white paper also identifies several topics of discussion for the February 24–25 workshop, including:
• whether the EPA has properly characterized background ozone concentrations;
• if there are other sources of background ozone that concern states and other interested parties;
• whether the EPA has identified all tools that states can use to address high background ozone levels;
• if guidance issued by the EPA is sufficient for states to properly invoke those Clean Air Act tools; and
• any additional assistance that states want or need from the EPA.
The workshop will be held at an Arizona Department of Environmental Quality Building in Phoenix. Interested parties can register to attend and speak at the workshop at http://src.bna.com/bGS.
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