Preview Newsletter
ACC AM Jan 6
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(ACC Mentioned) Consumers Love Squeezable Plastic Pouches for Food—Too Bad Recyclers Hate Them
Jan 5, 2016 | Pacific Standard
By Elizabeth Royte
Late last year, 40,000 people presented Kraft Heinz, North America’s third-largest food company, with a singular demand: Quit selling your Capri Sun juice drink in flexible plastic pouches, a packaging form that has been intrinsic to the brand’s identity for more than 40 years. The pouches, the petitioners declared, were “designed for the dump” -
(ACC Mentioned) Microbeads Outlawed In U.S.
Jan 5, 2016 | Palestine Herald-Press
By Pennylynn Webb
Outlawed in the U.S., microbeads will soon be a thing of the past. In late December, President Barack Obama signed a bipartisan bill that will prohibit the sell and distribution of any products containing microbeads. Microbeads are plastic microspheres that are less than 5 millimeters, used in cosmetics as exfoliating agents... -
Senators Clear The Air On “Early Preemption” Under The Senate TSCA Reform Bill
Jan 5, 2016 | Environmental Defense Fund
By Richard Denison
In the immediate aftermath of the Senate’s unanimous passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) on December 17, 2015, three of the key Democratic cosponsors of that bill – Senators Whitehouse (RI) , Booker (NJ) and Merkley (OR) – participated in a colloquy to discuss one of the most contentious... -
FDA Revokes Use of Three Perfluorinated Chemicals
Jan 6, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Food and Drug Administration has revoked its previously approved use of three perfluorinated chemicals, grease-proofing agents that coat paper wrappers and containers that come into contact with food. “Although it appears that manufacturers generally have stopped using these products [chemicals], FDA's action means that any continued... -
State Hazardous Waste Law Roundup 2015
Jan 6, 2016 | BNA Daily Environment Report
Governors in a number of states signed waste-related bills into law in 2015, covering everything from scrap tires and medical waste to recycling opportunities and landfill leachate. New York made sweeping amendments to its Brownfield Cleanup Program in 2015, with Gov. Andrew M Cuomo (D) signing legislation in April to extend ... -
US, Canada Complete Comparison Of Risk Assessment Frameworks
Jan 5, 2016 | Chemical Watch
A comparative analysis of US and Canadian chemical regulatory risk assessment frameworks has been completed, in the second phase of the Regulatory Cooperation Council's (RCC) workplans. The RCC was set up in 2011 to better align the two countries' regulatory approaches, where possible. -
EPA Waste Management Rules Concern Retailers
Jan 5, 2016 | The Hill - E2 Wire
By Lydia Wheeler
Retail groups are concerned about new waste management regulations from the Environmental Protection Agency that could affect how stores dispose of unsold products and pharmaceuticals. The Retail Industry Leaders Association (RILA), the Food Marketing Institute, the National Association of Chain Drug ... -
L.A. Residents Flee as Gas Leak Threatens Neighborhood
Jan 6, 2016 | BNA Daily Environment Report
By James Nash
The sulfurous scent of a natural-gas leak hangs in the air as mail carriers wearing gas masks make rounds to mostly deserted homes in the Los Angeles neighborhood of Porter Ranch. Life in the community of 30,000 people chiseled into the hills on the north rim of the San Fernando Valley has been upended by the break, which emits enough... -
Chemical Safety Board to Hear Process Safety Management Reform
Jan 5, 2016 | Powder & Bulks Solids
The U.S. Chemical Safety Board (CSB) will will hear an update on the new process safety management reforms in California from a panel of experts in a public meeting on Wednesday, January 13, 2016, in Torrance, CA. “We are continuing to monitor developments in California and look forward to a lively discussion on PSM... -
Dems Worry About Federal Drilling Lease Suspensions
Jan 5, 2016 | The Hill - E2 Wire
By Devin Henry
Three Democrats are asking federal officials to look into the extended leases granted to certain oil and gas drillers on federal land. In a letter to the Government Accountability Office on Tuesday, the Democrats said they are concerned about the lease suspensions the Bureau of Land Management (BLM) is issuing to drillers. -
House Dems Request Probe Of BLM 'Lease Suspensions'
Jan 6, 2016 | E&E Daily News
By Amanda Reilly
Three House Democrats are asking the congressional watchdog to examine the Bureau of Land Management's practice of suspending oil and gas leases on public lands. The request comes after the Wilderness Society last month raised questions about the use of "lease suspensions" by the government agency. -
Oil Lobby Chief Laments ‘Demonization’ Of Keystone Pipeline
Jan 5, 2016 | The Hill - E2 Wire
By Timothy Cama
The oil lobby is bracing for more attacks from environmentalists who helped block the Keystone XL pipeline, wary that the green groups, buoyed by the recent victory, are gearing up to target more pipeline and fossil fuel projects. American Petroleum Institute (API) head Jack Gerard used his annual State of American Energy speech to condemn... -
S.D. Approves Pipeline Route
Jan 5, 2016 | E&E News PM
By Christa Marshall
The South Dakota Public Utilities Commission today approved TransCanada Corp.'s permit renewal request to build the controversial Keystone XL pipeline through that state. Even though President Obama last year blocked the project's crossing into the United States from Canada, the company is hoping a new administration or Congress... -
API Seeks To Boost Natural Gas As Elections Approach
Jan 6, 2016 | E&E Daily News
By Amanda Reilly
The nation's oil and gas lobbying powerhouse plans to put natural gas front and center in its messaging leading up to the fall elections for president and Congress. In an annual speech yesterday, American Petroleum Institute President and CEO Jack Gerard said that the group would focus on the "U.S. model" -- API's term for the idea that... -
Montana Governor Names Clean Power Plan Advisers
Jan 6, 2016 | BNA Daily Environment Report
By Andrew Childers
Montana Gov. Steve Bullock (D) appointed a 27-member interim advisory council Jan. 5 to guide the state's development of a compliance plan to implement federal carbon dioxide emissions limits on the existing fleet of power plants. The committee will make recommendations on Clean Power Plan compliance strategy... -
Michigan on Track for Clean Power Plan Compliance: WRI
Jan 6, 2016 | BNA Daily Environment Report
Michigan can get 98 percent of the reductions required by the Clean Power Plan (RIN 2060-AR33) through its existing clean energy policies, according to a report from the World Resources Institute. The remaining 2 percent could be met by boosting energy efficiency standards, continuing to require that 10 percent of electricity sales come from... -
Bill Would Roll Back DOE Standard
Jan 6, 2016 | E&E Daily News
By Christa Marshall
House Republicans are pushing new legislation to exempt some lighting technologies from a Department of Energy efficiency standard set to kick in this year. The House Energy and Commerce Committee's new bill, sponsored by Rep. Renee Ellmers (R-N.C.), would exempt "power supply circuits, drivers and devices" that connect to light-emitting... -
Senate Aims to Beat Holiday Hangover on Energy Policy
Jan 5, 2016 | Roll Call
By Jeremy Dillon
Energy holiday cheer resulting from the omnibus spending bill decked the halls for fossil fuel-backers and renewable supporters alike as Congress headed to its year-end break last month, but don’t expect a holiday hangover. The Senate is primed in the new year to play catch up with the House as it tries to enact an energy policy update ... -
Regulatory Reform Bills Move Despite Obama's Veto Promise
Jan 6, 2016 | BNA Daily Environment Report
By Stephen Lee
The House Rules Committee ushered to the House floor Jan. 5 a pair of bills that seek to trim back rulemaking power of the Environmental Protection Agency and other federal agencies. Neither bill is expected to be taken up in the Senate because Democrats firmly oppose them, and the Republican majority lacks the 60 votes needed to... -
Companies Claim Lack Of 'Due Process' In EPA Air Compliance Order Suit
Jan 5, 2016 | InsideEPA
By Stuart Parker
Companies pursuing a novel suit seeking judicial review of an EPA Clean Air Act compliance order prior to enforcement of the order say that the agency deprived them of "due process" with the order, arguing that EPA failed to allow them to contest the finding and that it is based on an erroneous application of federal air rules. -
Clear the Air
Jan 5, 2016 | The Houston Chronicle
Texas Attorney General Ken Paxton recently filed yet another lawsuit against the U.S. Environmental Protection Agency, this time for lowering permissible limits of ozone pollution in U.S. skies. His lawsuit means more Texas taxpayers money will be wasted on yet another needless, politically motivated legal action by one of our... -
Poll: 70 Percent Believe In Climate Change
Jan 5, 2016 | The Hill - E2 Wire
By Timothy Cama
A new survey finds that 70 percent of Americans believe the climate is changing. The poll from Monmouth University, released Tuesday, found a stark partisan divide on most issues surrounding climate change, including whether it is happening, how serious it is and what should be done about it. -
Senators Press Obama On Low-Income Energy Funding
Jan 5, 2016 | E&E News PM
By Geof Koss
Senators from both parties are urging the Obama administration to seek healthy funding levels for key federal programs that help low-income residents pay heating and cooling costs. Sens. Susan Collins (R-Maine) and Jack Reed (D-R.I.), the chairwoman and ranking member of the Transportation, Housing and Urban Development, and... -
Advocates Seek EPA's Objection To Air Permit Over 'Maintenance' Dispute
Jan 5, 2016 | InsideEPA
By Stuart Parker
Environmentalists are suing EPA to try to make the agency respond to their petition urging the agency to force strict Clean Air Act prevention of significant deterioration (PSD) review requirements for a paper mill that advocates claim evaded air permit applications by disguising a major facility upgrade as "routine maintenance." -
Sanders Derides Trump for 2012 Climate Change Claim
Jan 6, 2016 | BNA Daily Environment Report
By Anthony Adragna
Democratic presidential contender Sen. Bernie Sanders (I-Vt.) poked fun at a 3-year-old theory from leading Republican presidential candidate Donald Trump that China invented the concept of climate change to weaken U.S. manufacturing. “How brilliant can you be?” Sanders sarcastically asked at a Jan. 4 rally in Manchester, N.H...
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(ACC Mentioned) Consumers Love Squeezable Plastic Pouches for Food—Too Bad Recyclers Hate Them
Jan 5, 2016 | Pacific Standard
By Elizabeth Royte
Late last year, 40,000 people presented Kraft Heinz, North America’s third-largest food company, with a singular demand: Quit selling your Capri Sun juice drink in flexible plastic pouches, a packaging form that has been intrinsic to the brand’s identity for more than 40 years. The pouches, the petitioners declared, were “designed for the dump”—neither reusable nor recyclable nor compostable. And given that Kraft was pumping out 1.4 billion of them annually, they amounted to a serious problem for the environment.
THE SQUEEZE IS ON
The letter writers had been organized by an advocacy group called Upstream, which promotes sustainable product design and an end to throwaway plastics. The campaign, called “Make It, Take It,” was no fringe venture; it had the backing of 23 organizations, including the Sierra Club and the Natural Resources Defense Council, representing five million people. Still, Kraft would not budge. Nor would it make any substantive response several months later to a similar demand made by 29 percent of Kraft’s own shareholders—a voting block representing a market value of $9 billion.
Out of the tens of thousands of products that come in non-recyclable pouches, Upstream targeted Capri Sun because the brand is iconic, hugely successful (reaping more than $500 million in sales annually), and marketed directly to children—our next generation of recyclers. “My whole career has been about pushing corporations to take responsibility for their product waste,” says Matt Prindiville, the organization’s executive director. “They created this problem. This packaging didn’t even exist 50 years ago.”
The Capri Sun-style pouch has recently become ubiquitous on store shelves, where it can be found enclosing everything from dog meals to baby food, detergent to dill pickles. But it has actually been around since 1962, when Louis Doyen, the chairman of the French company Thimonnier, invented a lightweight package that could contain liquids, stand erect on a shelf, and present two relatively large surfaces for printing—the better to attract a customer’s eye.
The Doypack, as the multilayer pouch with the gusseted bottom is known, was a huge success. Easy and economical to manufacture, not to mention super lightweight compared with other forms of packaging, empty Doypacks could be rolled onto spools—taking up far less space in trucks and storage rooms than bottles or cans—and filled at high speeds. Pouches with an inner layer of aluminum (like Capri Sun’s) also offered the benefit of keeping food fresh without refrigeration for a long time, saving on energy costs and perhaps even cutting down on food waste. Americans now go through about 80 billion pouches a year. Industry analysts predict the number could hit 92 billion by 2018.
Flexible packaging like the Doypack is perhaps the most extreme expression of “lightweighting,” the practice of using less material in the manufacture of consumable goods without compromising durability. Inarguably, lightweighting conserves natural resources—oil, trees, water, energy—and reduces greenhouse gas emissions. It also saves companies money on materials and on the fuel needed to ship their goods.
But these upstream environmental and economic gains exact a serious downstream toll. As ordinary citizens ponder the rising billows of non-recyclable film in their kitchen trash cans, as celebrities broadcast plaintive public service announcements about ocean plastics, and as images of plastic-strangled turtles and seabirds proliferate, the conversation on single-use packaging has begun to shift. In recent years, voters have pushed local governments across the country to ban plastic bags, water bottles, and polystyrene. They’ve lobbied the makers of Brita water filters and various coffee capsules to take back and recycle their packaging. Most recently they’ve pushed seven states—and, recently, the United States Congress—to pass legislation restricting the use of plastic microbeads, which are found in toothpaste, facial scrubs, and body wash; these tiny bits of plastic wash down bathroom drains and then out into waterways, where they menace aquatic life.
Companies have been responding to the pressure. In 2014, As You Sow, the San Francisco–based non-profit that had organized the shareholder resolution against Kraft, won an agreement from Procter & Gamble: The company declared that, by 2020, it would make 90 percent of its packaging recyclable. The Honest Kids juice drink brand, owned by Coca-Cola, has also said that it will be moving away from pouches and into aseptic cartons—the same kind that keep your almond milk fresh—which are recyclable with the paper stream in 55 percent of U.S. communities.
RECYCLING THE UNRECYCLABLE
Technically speaking, flexible plastic film made of a single material can be recycled. (Some of it returns to life as an ingredient in re-usable shopping bags, although most becomes plastic lumber, pavers, and pallets.) Still, supermarket collection boxes for used bags and other films are able to recover, at best, just 15 percent of the material that’s generated. Moreover, there are relatively few buyers of post-consumer flexible film in the nation, and these buyers have shown little interest in multi-material pouches topped with Ziplocs and caps, which are more difficult and expensive to process.
Kraft won’t reveal whether it is considering a change in Capri Sun packaging, but other stakeholders have already begun to experiment with the company’s flexible-plastic dregs. Throughout the summer of 2014, a consortium made up of Dow Chemical, the Flexible Packaging Association, the American Chemistry Council, and Republic Waste Services ran a small experiment in the Sacramento, California, suburb of Citrus Heights. There they distributed purple bags to roughly 23,000 households for the collection of non-recyclable flexible plastics: candy wrappers, potato chip sacks, frozen food bags, meat wraps, and pouches.
Once the purple bags were full, residents tossed them into their recycling bins, and the local recycling facility transferred them to trucks bound for the town of Tigard, Oregon. There, the plastics were transformed into synthetic fuel through a super-high-temperature and nearly oxygen-free melting process known as pyrolysis. “The fuel can be further refined into a high-value product like diesel fuel, gasoline, fuel pellets for energy, or other chemicals,” says Jeff Wooster, global sustainability leader of Dow Chemical. According to Columbia University’s Earth Engineering Center, converting non-recycled plastics (not just flexibles) into oil could generate 3.6 billion gallons of gasoline per year, enough to fuel nearly six million cars for one year.
But just because plastic can be converted into fuel, does that mean it should be? Not according to a number of scientists and environmental advocates. One of them is Ananda Lee Tan of the Global Anti-Incinerator Alliance, who sees pyrolysis as merely “another form of incineration.” (As a matter of fact, both the Environmental Protection Agency and the European Union classify pyrolysis as just that.) Pyrolysis plants have been shown to emit small amounts of the carcinogen dioxin, Tan says, in addition to nitrogen oxides and other harmful contaminants.
What’s more, once they’ve been built, pyrolysis plants must be continuously fed—and many observers worry that readily recyclable material will inevitably end up in these facilities as well. Recyclers who make their money selling rigid plastics could lose revenue, and manufacturers who rely on recycled plastic pellets could lose their feedstock. “Converting plastics to energy isn’t the highest, or the best, use for these materials,” according to NRDC’s Darby Hoover, who worked closely with As You Sow on a 2015 report detailing waste issues in consumer packaging. “Yes, pouches are hard to recycle. But that doesn’t mean we shouldn’t try,” Hoover says. “This is a design decision: We need to figure out how to incentivize or pressure companies to innovate.”
MAIL IT IN?
Until such upstream innovation materializes, however, some manufacturers of hard-to-recycle products have been looking downstream—specifically, to a $20 million company called TerraCycle, which occupies a funky looking industrial building in a run-down quarter of Trenton, New Jersey. The company, which operates in 21 countries, helps more than 100 of the world’s largest brands (including Nestle, L’Oreal, and Staples) green their images and shrink their environmental footprints by keeping their hard-to-recycle packaging out of landfills and incinerators.
Tom Szaky, TerraCycle’s puckish-looking founder, explains how his company works. Using pre-paid shipping boxes, consumers and institutions send their drink pouches, toothpaste tubes, chip bags, energy bar wrappers, ballpoint pens, and lipstick tubes (among many other castoffs) to a TerraCycle warehouse. Recyclers shred the material, melt it, and force the goop through a perforated die. The resultant resin strands are then chopped into pellets the size of uncooked grains of couscous and sold to the makers of picnic tables, benches, and shipping pallets.
Seated at a battered desk in the middle of a bustling open office, Szaky holds up a green-flecked plastic dome. “This is pure chip bag,” he says, referring to the material’s past life as a holder of salty snacks. Now, he adds, “it’s an injection-molded fitting for the end of a pipe.” Szaky acknowledges how devilishly difficult flexibles can be to recycle: “You’ve got all these multilayer packages with different formulations of plastic—polyethylene, polypropylene, polyethylene terephthalate—and they’re all mixed together. Sometimes there’s aluminum in there, sometimes fiber.”
Still, TerraCycle manages to do it. Chemists analyze the plastics with a pair of dauntingly named high-tech instruments—a Fourier transform infrared spectrometer and a differential scanning calorimeter—then mix polymers into new recipes according to buyers’ specs. But the process isn’t cheap. The only reason TerraCycle can stay afloat chopping 10 million pounds of packaging a year into pellets, which it sells for below-market rates, is that various stakeholders—retailers and brand owners—cut him checks in exchange for the privilege of printing the phrase “Recyclable Through TerraCycle” on their packaging. Kraft, for example, pays Szaky’s organization more than $1 million a year to handle its Capri Sun pouches.
Szaky acknowledges that his recovery rate is low, but he also insists that it’s growing at the same pace it took the U.S. to reach its current recycling rate of almost 35 percent. Still, when he is asked whether it would be more expedient for Kraft to simply start packaging its juice drinks into more easily recyclable containers, his answer is an adamant no. In fact, he says, it would amount to an environmental disaster, since those containers actually require more natural resources to manufacture, “and Americans already send 70 percent of them to landfills.”
And what does Szaky think about the purple bag pilot program? “Pyrolysis is insane,” he practically sputters. “You’re turning everything into a fuel that gets burned a year later.” That’s terrible for the atmosphere, he points out, and it should be considered anathema to the basic principles of resource conservation, since it forces the makers of picnic tables and pipe ends to source new plastic—in the form of oil or natural gas—from the Earth.
A PLASTICS PUZZLE
Flexible plastics pose a recycling conundrum that everyone agrees we must solve, although nobody is exactly sure how. Even Matt Prindiville, who just a year ago was leading the charge against Capri Sun pouches, has become more, well, flexible on the subject as he’s encountered the quandary outlined by Szaky and others. Where he once refused to acknowledge the pouch’s right to exist, he’s now willing to embrace its potential environmental upside within the larger context of product packaging. Instead of shunning, a priori, the conversion of refuse into fuel, for example, he now considers it a potentially elegant solution for hard-to-recycle plastics—especially in nations that lack adequate waste infrastructure of any kind, let alone ways to recycle.
“I want easy answers,” Prindiville says from his small office in Rockland, Maine, where a tunic made from Capri Sun pouches hangs on the wall. “But the deeper I dig, the more complicated this gets. I used to think that corporations alone had to take responsibility for a product’s end of life. I realize now that big environmental problems require an ecosystem of actors and solutions. Companies need to invest in recycling technologies and logistics, and they have to work with others along the supply chain.” Those others may work at TerraCycle, or they may work at pyrolysis plants. They may be consultants crafting legislation to increase recycling rates or polymer chemists partnering with waste handlers to design pouches that can easily be taken apart and reused.
“But ultimately,” Prindiville concludes, “what we need is for people to say, ‘No, we’re going to stop purchasing this disposable crap until you change to packaging that’s reusable, recyclable, or compostable.’”
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(ACC Mentioned) Microbeads Outlawed In U.S.
Jan 5, 2016 | Palestine Herald-Press
By Pennylynn Webb
Outlawed in the U.S., microbeads will soon be a thing of the past. In late December, President Barack Obama signed a bipartisan bill that will prohibit the sell and distribution of any products containing microbeads.
Microbeads are plastic microspheres that are less than 5 millimeters, used in cosmetics as exfoliating agents and personal care products. Microbeads are used in hundreds of personal care products, including bath/shower gel, exfoliating scrubs, toothpaste and shaving creams. One single product can contain thousands of microbeads.
A study published in Environmental Science & Technology said that more than eight trillion microbeads were entering the country's water supply and aquatic habitats daily. Sewage-treatment facilities were not designed to filter these tiny beads from wastewater; therefore, these beads are often still present in effluent water leaving treatment plants. They have been found in marine environments all over the planet and are being ingested by fish and sea species and can end up in our food chain through our waterways, lakes and oceans. In the U.S., plastic microbeads have been found polluting the Great Lakes in high concentrations, especially Lake Erie.
According to Beat the Microbead campaign website, in 2011the North Sea Foundation began writing companies requesting that they stop using microbeads as soon as possible. The North Sea Foundation and other supporters urged these companies to use natural, biodegradable alternatives in their products, like ground nut shells and salt crystals.
Companies responded with statements that their products met strict safety standards, their products were absolutely safe for consumer use, that there are no legal restrictions preventing the use of microbeads, that the presence of microbeads in oceans were attributed to the degradation of larger plastic debris, that relative contribution of their products to marine pollution is minimal, that sewage-treatment plants filter all microbeads that are responsibly incinerated afterwards and that it cannot be proven that the microplastics present in the oceans originated from their products. The website reports that none of these companies could reportedly back up their statements.
That's when the Plastic Soup Foundation recognized the severity of the problem and launched the Beat the Microbead campaign in the summer of 2012, in partnership with the North Sea Foundation. Their campaign asks that manufacturers stop using microbeads, retailers not sell products containing mircrobeads, that consumers refrain from buying products containing microbeads and that governments ban the use of microbeads in personal-care products. Through their initiatives, many companies that previously used microbeads in their products — like Adidas, Johnson & Johnson, Procter & Gamble and L'Oreal — pledged to phase out the use of the plastic microbeads in their products.
In the U.S., Illinois was the first state to enact legislation banning the manufacture and sale of products containing microbeads. Other states have since followed. All state bans, save for California, allow biodegradable microbeads. Rep. Frank Pallone proposed the Microbead-Free Waters Act of 2015 through HR 4895 in 2014 that was reintroduced as HR 1321 in 2015. The bill was passed unanimously by the House on Dec. 2 and, with the support of the American Chemistry Council and other industrial groups, passed the Senate on Dec. 18. President Barack Obama signed the bill into law Dec. 28.
Through the Microbead-Free Waters Act, a ban on manufacturing products with micobeads will begin in July of 2017 and product-specific manufacturing and sales bans will follow in 2018 and 2019.
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Senators Clear The Air On “Early Preemption” Under The Senate TSCA Reform Bill
Jan 5, 2016 | Environmental Defense Fund
By Richard Denison
In the immediate aftermath of the Senate’s unanimous passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) on December 17, 2015, three of the key Democratic cosponsors of that bill – Senators Whitehouse (RI) , Booker (NJ) and Merkley (OR) – participated in a colloquy to discuss one of the most contentious – and widely misunderstood – provisions of the Senate bill: the extent to which it would preempt states from acting during review of a high-priority chemical by the Environmental Protection Agency (EPA).
That colloquy ran in the next day’s Congressional Record. I am including it at the end of this post in its entirety; it explains the Senators’ successful effort to limit preemption of state authority in the final bill – including by narrowing the conditions states must meet to act during EPA review of a chemical essentially to constraints on state authority already imposed by the U.S. Constitution. The Senators conclude: “Restoring the ability for States to protect their citizens while EPA assesses the safety of chemicals was one of the primary goals of our work to improve this bill and that has been accomplished under section 18(f)(2) of S. 697, as reported by the Environment and Public Works Committee. We believe this does, within the limits imposed by the Constitution.”
Although this preemption provision was narrowed in negotiations led by those Senators this past April, it is still being widely mischaracterized.
While that provision has received the most attention, there are many other facets to be considered in any comparison of preemption under the Senate and House TSCA reform legislation. Our analysis, provided here, concludes that neither bill is uniformly more or less preemptive than the other. The Congressional Research Service reached a similar conclusion.
And, of course, preemption is but one part of the legislation. Our summaries and detailed analyses and comparisons of the two bills are available here.
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Excerpt from December 18, 2015, Congressional Record:
REQUIRED STATE PREEMPTION PROVISION IN THE FRANK R. LAUTENBERG CHEMICAL SAFETY FOR THE 21ST CENTURY ACT
Mr. WHITEHOUSE. Mr. President, today, with my colleagues Senator CORY BOOKER and Senator JEFF MERKLEY, I wish to discuss the Frank R. Lautenberg Chemical Safety for the 21st Century Act, S. 697. Some opponents claim it creates a regulatory void that will prohibit States from creating or enforcing State policies while EPA assesses chemicals for safety. We opposed the bill as introduced because that was the case. Since then, we worked together with Senators UDALL, VITTER, and INHOFE to restore the ability of States to protect their citizens while EPA is assessing chemicals by substantially shrinking the interim period of time where preemption occurs and by creating a straightforward waiver process.
Mr. BOOKER. The provision requires EPA to allow States to regulate hazardous chemicals while EPA assesses a chemical for safety if the proposed state regulation meets three basic criteria:
A, consistent with the dormant commerce clause of the U.S. Constitution, compliance with the proposed regulation will not unduly burden interstate commerce in the manufacture, processing, distribution in commerce, or use of a chemical substance;
B, compliance with the proposed regulation would not cause a violation of any applicable Federal law, rule, or order; and
C, the State or political subdivision of a State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science.
Given the importance of this provision and the role EPA will play in reviewing waiver applications, we asked EPA for its interpretation. EPA agrees that States will be exempted from preemption by meeting three criteria. The following are the relevant excerpts from EPA’s response:
Based on the bill reported on June 18, 2015, S. Rep. 114–67, the following is a summary of how EPA understands the Frank R. Lautenberg Chemical Safety for the 21st Century Act, FRL21, would operate with respect to the preemption of state law.
Required waivers under section 18(f)(2). These would be State requests for an exemption from preemption under section 18(b). EPA must grant this kind of waiver request if the State law for which waiver is sought would not unduly burden interstate commerce; the State law for which waiver is sought would not cause a violation of Federal law; and the State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science.
Mr. MERKLEY. Each of these standards has a constitutional foundation. The first reflects the restraints of the dormant commerce clause. The second reflects the Constitution’s supremacy clause. The third corresponds to the scientific factual predicate required to meet scrutiny under the due process clause, as not ‘‘arbitrary and capricious.’’ Restoring the ability for States to protect their citizens while EPA assesses the safety of chemicals was one of the primary goals of our work to improve this bill and that has been accomplished under section 18(f)(2) of S. 697, as reported by the Environment and Public Works Committee. We believe this does, within the limits imposed by the Constitution.
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FDA Revokes Use of Three Perfluorinated Chemicals
Jan 6, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Food and Drug Administration has revoked its previously approved use of three perfluorinated chemicals, grease-proofing agents that coat paper wrappers and containers that come into contact with food.
“Although it appears that manufacturers generally have stopped using these products [chemicals], FDA's action means that any continued use of the perfluorinated chemicals covered by the regulation is no longer permitted,” the agency said in a statement about its final rule (81 Fed. Reg. 5).
The rule was effective Jan. 4, the same date it published in the Federal Register.
SPI: The Plastics Industry Trade Association, which represents the BASF Corp. and other companies that have made long-chain perfluorinated chemicals similar to those covered by the FDA's rule, said the chemicals having their allowable uses revoked by the FDA are no longer used as food-contact substances.
Kyra Mumbauer, senior director of global regulatory affairs at SPI, said in a statement, “It is the understanding of SPI's member companies that the materials listed in FDA's final rule are no longer manufactured for food-contact applications and represent an old technology. FDA's action thus does not impact SPI's members.”
FDA's final regulation covers three food-contact substances:
• diethanolamine salts of mono- and bis (1H,1H,2H,2H perfluoroalkyl) phosphates where the alkyl group is even-numbered in the range C8-C18 and the salts have a fluorine content of 52.4 percent to 54.4 percent as determined on a solids basis;
• pentanoic acid, 4,4-bis [(gamma-omega-perfluoro-C8-20- alkyl)thio] derivatives, compounds with diethanolamine (CAS Reg. No. 71608-61-2); and
• perfluoroalkyl substituted phosphate ester acids, ammonium salts formed by the reaction of 2,2-bis[([gamma], [omega]-perfluoro C4-20 alkylthio) methyl]-1,3-propanediol, polyphosphoric acid and ammonium hydroxide.
Common food packages that need the grease-proof surface previously provided by these and other oil-resistant chemicals include: pizza boxes, microwave popcorn bags, fast-food packaging and pet food bags. The coatings prevent oil and grease from leaking through packaging.
Environmental Coalition Petition Prompts Rule
The FDA reviewed the three chemicals in response to a 2014 petition submitted by the Natural Resources Defense Council, Breast Cancer Fund, Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Children's Environmental Health Network, Clean Water Action, Environmental Working Group and Improving Kids’ Environment.
The environmental coalition's petition pointed to a safety review the FDA undertook in 2010 of long-chain perfluorocarboxylates, which are structurally similar to the three perfluorinated chemicals regulated Jan. 4. The agency's review raised concerns that the perfluorocarboxylates could harm the male, and possibly, female reproductive systems.
“Based on this conclusion, FDA took the unprecedented step of asking three companies with effective Food Contact Substance notifications (FCN) for perfluorocarboxylates to cease their sale and distribution in the United States. In 2011, all three voluntarily agreed,” the coalition said.
The coalition referred to a voluntary agreement the FDA announced in 2012 with the BASF Corp., DuPont and the Clariant Corp.
In its Jan. 4 rule, the FDA said it concluded the safety concerns it had in 2010 about possible reproductive and developmental toxicity for long-chain perfluorocarboxylic acids and fluorotelomer alcohols would be applicable to long-chain perfluorinated chemicals generally.
Therefore, “we conclude that there is no longer a reasonable certainty of no harm” for the food contact use of these three chemicals, it said.
Coalition: More FDA Rules Needed
Two of the coalition members, the NRDC and the Environmental Working Group, said the FDA needs to address many more chemicals that are used in or contact food.
“The FDA's belated action comes more than a decade after EWG and other advocates sounded alarms and five years after U.S. chemical companies stopped making the chemicals. It does nothing to prevent food processors and packagers from using almost 100 related chemicals that may also be hazardous, EWG said in a statement.
“Industrial chemicals that pollute people's blood clearly have no place in food packaging,” wrote EWG President Ken Cook. “It's taken the FDA more than 10 years to figure that out, and it's banning only three chemicals that aren't even made any more.
“This is another egregious example of how, all too often, regulatory actions under the nation's broken chemical laws are too little and too late to protect Americans' health. Congress needs to ensure that chemicals that make their way into food, either as deliberate additives or as contaminants from packaging and other outside sources, are thoroughly investigated,” Cook said.
In another statement, Erik Olson, director of the NRDC's Health program, said “the FDA's ban is an important first step—but just a first step—toward improving the safety of our food supply.”
Styrene Among Chemicals Named in Second Petition
“Now it should act on our petition to ban the seven other chemicals we believe—and government agencies such as the toxicology program at the National Institutes of Health have found—cause cancer,” Olson said.
He referred to a second rulemaking petition NRDC, EWG and other advocates filed asking the FDA to revoke its approval of styrene and six other food additives.
That regulation also should prohibit the presence of these chemicals in food, the coalition said.
The seven food additives are:
• benzophenone (also known as diphenyl ketone) (CAS No. 119-61-9);
• ethyl acrylate (CAS No. 140-88-5);
• eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol) (CAS No. 93-15-2);
• myrcene (also known as 7-methyl-3-methylene-1,6-octadiene) (CAS No. 123-35-3);
• pulegone (also known as p-menth-4(8)-en-3-one) (CAS No. 89-82-7);
• pyridine (CAS No. 110-86-1); and
• styrene (CAS No. 100-42-5).
The coalition that filed the second petition consisted of: the Center for Science in the Public Interest, NRDC, Center for Food Safety, Consumers Union, Improving Kids' Environment, Center for Environmental Health, Environmental Working Group, Environmental Defense Fund, and an individual, James Huff.
The FDA should no longer allow the seven chemicals to be used as food additives, because new toxicity data show the chemicals are carcinogenic, the coalition's petition said.
Under the Delaney Clause, a 1960 amendment to the Federal Food, Drug, and Cosmetic Act, the FDA cannot approve any food additive if the additive induces cancer when ingested by people or animals.
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State Hazardous Waste Law Roundup 2015
Jan 6, 2016 | BNA Daily Environment Report
Governors in a number of states signed waste-related bills into law in 2015, covering everything from scrap tires and medical waste to recycling opportunities and landfill leachate.
New York made sweeping amendments to its Brownfield Cleanup Program in 2015, with Gov. Andrew M Cuomo (D) signing legislation in April to extend the program for 10 years and changing the program's tax credits. The amendments extended and preserved valuable elements of the state's Brownfield Cleanup Program while providing certainty and clarity to environmentalists and developers alike, practitioners said. Cuomo had vetoed an earlier bill that would have extended the program without making substantial changes. Montana also passed a brownfield-related initiative.
California weighed in with a number of new laws designed to improve the administration of hazardous waste. The new legislation requires offenders to pay state regulators for the costs of overseeing cleanup of hazardous substances, gives regulators the authority in certain cases to suspend permits after three or more violations and adopts new standards for permitting and renewing permits for hazardous waste facilities.
Illinois was another hotbed of activity in 2015, enacting a bundle of new laws addressing solid waste. Measures ranged from the treatment of gypsum collected from certain types of power plant scrubbers to proper disposal of mercury thermostats and hypodermic needles.
A state-by-state list highlighting a few of the new laws follows.
California
California passed a number of new laws seeking to address gaps in the Department of Substances Control's (DTSC) administration of hazardous waste permitting and improve enforcement efforts:
• A.B. 273 requires responsible entities to pay the DTSC the costs for overseeing corrective actions involving the release of hazardous substances and increases the annual interest rate on money owed to the DTSC for carrying out or overseeing corrective actions and cleanups;
• A.B. 274 allows the DTSC to not pursue uncollectable hazardous waste control costs and write off or write down uncollectable accounts;
• A.B. 1075 requires the DTSC under certain circumstances to consider three or more violations of noncompliance at a hazardous waste facility within five years as a cause to deny, suspend or revoke a permit or certification;
• S.B. 489 authorizes regulations to manage end-of-life photovoltaic modules identified as hazardous waste as universal waste;
• S.B. 612 requires a hazardous waste generator to include all hazardous waste generated in one month when computing whether it must comply with specified regulatory requirements. The new law excludes tanks on farms from the definition of above ground storage tanks; and
• S.B. 673 requires the DTSC by July 1, 2018, to adopt new criteria for permitting and renewing permits for hazardous waste facilities to improve the process, increase safety and support enforcement efforts.
California also passed new laws related to organic waste:
• A.B. 876, requiring county and regional agencies to include organic waste recycling facilities in their existing solid waste management planning activities, as a way to reduce methane emissions; and
• A.B. 1045, requiring the California Environmental Protection Agency to create policies to encourage recycling of organic waste and directing state air and water regulators and the Department of Food and Agriculture until 2017 to develop recommendations that promote organic waste processing technologies and a related infrastructure.
Colorado
Colorado passed HB 1145, which outlines numerous updates to the state's radiation control statute as required by the federal Nuclear Regulatory Commission to maintain Colorado's delegated authority through the State Radiation Control Act. Gov. John Hickenlooper (D) signed it April 8, and it took effect Aug. 5.
Illinois
The Illinois General Assembly took action on several solid waste measures, including bills addressing the disposal of manufactured gas plant wastes, coal combustion by-product, mercury and medical waste. Gov. Bruce Rauner (R) signed several of the measures into law in 2015, including:
• H.B. 1326, signed Aug. 14 (Public Act 99-0365), which addresses wastes generated from the remediation of manufactured gas plants. The new law bars regulated entities from disposing of toxic manufactured gas plant (MGP) wastes in most waste sites, except for sites permitted to accept hazardous wastes. The Sierra Club of Illinois pushed the measure, noting that MGP wastes frequently contain carcinogens and other potentially hazardous chemicals.
• S.B. 543, signed July 10 (Public Act 99-0022) amends the Illinois Environmental Protection Act to remove gypsum collected from certain types of power plant scrubbers from the state's sludge program and reclassifies it as a coal combustion by-product. The measure creates a framework for the legal sale of such gypsum and brings Illinois into conformity with several other states.
• S.B. 679, signed July 23 (Public Act 99-0122), amends the Mercury Thermostat Collection Act by identifying loose mercury ampoules as a product that must be collected and managed under the act. The law further specifies that commercial buildings can't be demolished unless all mercury thermostats have been removed and delivered to a collection site.
• S.B. 793, signed July 20 (Public Act 99-0082) addresses the disposal of “sharps,” including hypodermic, intravenous or other medical needles or syringes. The new law bars consumers from disposing of sharps together with other recyclable material intended for a residential or commercial hauler. The law also authorizes state agencies, local units of government and businesses to establish sharps disposal programs.
• H.B. 437 (Public Act 99-0011) permits municipalities and counties to approve one-day compostable waste collection events and permanent compostable waste collection points. The law also establishes requirements for these types of compostable waste programs.
Michigan
The Michigan legislature passed a set of environmental waste-related bills during its 2014-2015 legislative session, and Gov. Rick Snyder (R) signed them into law in January. Among them:
• Senate Bill 891 (Public Act 542), which revises the way background concentrations of hazardous substances are calculated. Snyder said it “updates cleanup requirements of contaminated property” to improve redevelopment opportunities, while environmental groups said that it rolled back important environmental controls.
• S.B. 753 (Public Act 536), which exempts municipalities from liability for three or fewer discharges occurring from private, on-site wastewater treatment systems.
• S.B. 941 (Public Act 543), which strengthens laws aimed at deterring the unlawful disposal of scrap tires by imposing monetary penalties as well as jail time.
• House Bill 4874 (Public Act 546), which allows septage haulers with storage facilities to continue to store septage waste at their facilities.
Montana
Gov. Steve Bullock (D) signed two bills in Montana that pertain to waste:
• S.B. 136, signed April 9, sets a new cap of $25,000 for remediation waste. The new law, which applies retroactively to waste generated after Jan. 1, 2014, is expected to reduce revenue currently generated by the Hazardous Waste Program by $161,616 starting in FY 2015.
• S.B. 355, signed April 24 and taking effect immediately, created the Montana Petroleum Brownfields Act and established requirements for the use and reimbursement of Federal Petroleum Brownfields money at petroleum tank release sites in the state.
New York
Gov. Andrew M. Cuomo (D) signed a bill (S2006B) April 13 to revamp the state's brownfield cleanup program, extending it for 10 years and changing the terms of the program's tax credits (S. 2006). The bill scaled back the program's tangible property tax credit, limited the remediation tax credit to the actual cleanup costs for remediating a site and amended the statutory definition of a brownfield. It also created a fast-track option to provide a liability release without tax credits for certain sites and expanded eligibility for the program from sites that are classified as Class 1 under the state superfund program to include Class 2 sites and sites covered by the Resource Conservation and Recovery Act (72 DEN A-20, 4/15/15).
North Carolina
North Carolina enacted two new laws concerning waste:
• S.B. 513, signed into law Sept. 30 as S.L. 2015-263, is a farm bill that includes a provision allowing certain older, retired hog farms to reopen without meeting newer animal waste management requirements; and
• H.B. 157, signed into law March 16 as S.L. 2015-1, says the state Environmental Management Commission need not regulate toxic air emissions from oil and natural drilling operations unless the commission determines that general state and federal air toxics regulations provide inadequate environmental protection. The new law also exempts steel slag from solid waste management requirements if used in another commodity for commercial purposes (53 DEN A-13, 3/19/15).
Pennsylvania
Senate Bill 513, signed by Gov. Tom Wolf (D) on Oct. 7 to become Act 45 of 2015, allows the vehicular transportation of leachate discharged from a municipal or private landfill's collection and handling system. The reasoning behind the bill was that there are instances where trucking leachate is necessary or preferred to onsite treatment, so municipal and private landfill operators should have the flexibility to treat leachate in the most cost effective and practical manner. The legislation allows municipal waste landfills to truck leachate, but doesn't change any of the requirements for treating leachate.
Rhode Island
Legislation (2015-S 0369A, 2015-H 5668A) that would require the eventual removal of all cesspools in Rhode Island was signed by Gov. Gina Raimondo (D) July 9. The new law calls for the replacement of individual sewage disposal systems with onsite wastewater treatment systems and would require the removal or replacement of cesspools upon the transfer of the property where the cesspool is located under certain circumstances. According to the sponsors of the legislation, there are about 25,000 cesspools in the state, and the new measure will eliminate about 400 each year.
The Rhode Island legislature also approved legislation (2015-S 0737) that establishes state standards for freshwater wetland buffers and setbacks to be promulgated by the Department of Environmental Management and the Coastal Resources Management Council. The legislation was signed July 10 and took effect immediately.
South Carolina
South Carolina passed one measure concerning solid waste. Under H. 3575, signed into law June 1 as 2015 Act No. 36, steel slag is now exempt from South Carolina's solid waste management requirements if it's used in another commodity for commercial purposes (106 DEN A-21, 6/3/15).
Tennessee
Tennessee passed one law about recycling and another on underground storage tanks:
• S.B. 1064, signed into law May 8 as P.A. 2015-407, revises provisions governing state government recycling efforts and encourages state facilities to offer recycling opportunities.
• S.B. 92, signed into law April 24 as P.A. 2015-292, makes various changes to the regulation of petroleum underground storage tanks and waste. The new law gives an owner or operator of an underground tank the option to request a refund of the annual fee or a waiver or reduction of the penalties in certain circumstances.
Wisconsin
Wisconsin Gov. Scott Walker (R) signed one law addressing standards for solid waste facilities. On July 1, Walker signed Assembly Bill 57, addressing methods for establishing proof of financial responsibility during the closure of a landfill.
The new law (2015 W.A. 50) specifies that escrow accounts established by landfill owners to provide proof of financial responsibility may include, in addition to federal securities, debt securities issued by an instrumentality of the federal government that have the highest rating assigned by a rating agency, bonds issued by the state of Wisconsin and corporate bonds that have the highest rating assigned by a rating agency.
Wyoming
Gov. Matt Mead (R) signed H.B. 55 on Feb. 25, and the law took effect immediately. The legislation amends the Municipal Solid Waste Remediation Program and the Municipal Solid Waste Cease and Transfer Program to provide a credit to local operators that performed remediation activities after July 1, 2006, but prior to enrollment in the program.
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US, Canada Complete Comparison Of Risk Assessment Frameworks
Jan 5, 2016 | Chemical Watch
A comparative analysis of US and Canadian chemical regulatory risk assessment frameworks has been completed, in the second phase of the Regulatory Cooperation Council's (RCC) workplans.
The RCC was set up in 2011 to better align the two countries' regulatory approaches, where possible.
During the first phase, they have developed a nanomaterials classification scheme, a risk assessment framework for “systematically focusing” on human health concerns, relating to nanoparticles, and a matrix of use of the substances (CW 15 January 2014).
In the second phase, the two countries are exploring common approaches in the areas of risk assessments, and significant new use rules (Snurs) in the US and significant new activity (Snac) regulations in Canada.
The effort is being spearheaded by two technical working groups, comprising industry, NGO and government representatives.
According to a spokesperson for Environment and Climate Change Canada, the comparative analysis examined differences in such aspects as regulatory authority, timelines, priority-setting, information gathering, science-based risk assessments, science policy and public consultation.
Five sub-groups are to develop case studies for five common priorities for risk assessment. The substances concerned will be: triphenyl phosphate;phthalic anhydride;4-tert-octylphenol;cyanide compounds; andmolybdenum compounds.
The idea is to examine differences, similarities and common approaches between the US and Canadian programmes.
The long-term objective of the risk assessment workplan is to develop a framework that would identify: common high-level principles for chemical risk assessment;opportunities, and impediments, to joint work;forward planning to build areas such as peer review; andmechanisms to address impediments.
The working group on Snurs/Snacs has identified three areas for further action: information sharing and communications during their development;benefits and challenges in aligning specific elements of design, such as terminology and approaches to standard exemptions; andopportunities to develop joint compliance promotion information on them.
The RCC has released reports on the methodology and scope of the comparative analysis as well as the outcomes of two stakeholder roundtable meetings, held last September.
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EPA Waste Management Rules Concern Retailers
Jan 5, 2016 | The Hill - E2 Wire
By Lydia Wheeler
Retail groups are concerned about new waste management regulations from the Environmental Protection Agency that could affect how stores dispose of unsold products and pharmaceuticals.
The Retail Industry Leaders Association (RILA), the Food Marketing Institute, the National Association of Chain Drug Stores, the National Grocers Association and the National Retail Federation claim these new rules could limit retailers’ ability to recycle or reuse products.
The Hazardous Waste Generator Improvements rule proposed over the summer allows businesses that create small amounts of hazardous waste to avoid some stricter regulations as long as it is properly managed. And qualified "small quantity generators" will be allowed to send hazardous waste to a large quantity generator.
The Management Standards for Hazardous Waste Pharmaceuticals rule, also proposed in August, will create a set of regulations for how healthcare facilities and pharmacies should handle hazardous waste pharmaceuticals.
“Although portions of the proposals may offer some relief, the suggested frameworks fall short of easing the burden on retailers who want to manage unsold products in a more sustainable fashion, rather than discarding potentially useful or recyclable items.” Sue Pifer, RILA’s vice president of compliance, said in a news release. “The Retail Associations again emphasize in their comments that most unsold consumer products and pharmaceuticals are not ‘wastes’, due to the fact that many are suitable for re-shelving, donation, recycling, liquidation or shipment back to vendors for credit."
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L.A. Residents Flee as Gas Leak Threatens Neighborhood
Jan 6, 2016 | BNA Daily Environment Report
By James Nash
The sulfurous scent of a natural-gas leak hangs in the air as mail carriers wearing gas masks make rounds to mostly deserted homes in the Los Angeles neighborhood of Porter Ranch.
Life in the community of 30,000 people chiseled into the hills on the north rim of the San Fernando Valley has been upended by the break, which emits enough methane to fill the Empire State Building every day.
San Diego-based Sempra Energy, which operates the fourth-largest underground storage field in the U.S. nearby, has said capping it could take two months (235 DEN A-19, 12/8/15).
The leak in California, the state with the toughest U.S. restrictions on greenhouse-gas emissions, is bringing calls to tighten regulations on storage fields as the amount of natural gas held in underground reservoirs nationwide swelled 17 percent last year. Enforcement is left to states, with no overarching federal role. Leak-fueled explosions have flattened homes and businesses and killed people from New York to Kansas and Texas since 2001.
“This is the biggest community and environmental disaster I've ever seen, bar none,” said Mitchell Englander, who has represented Porter Ranch on the Los Angeles City Council since 2011. “Life there is not on hold—it's on the edge and it's on the brink of pandemonium. People are living with fear, uncertainty and doubt.”
Sempra, whose Southern California Gas is the nation's largest distribution company, could face as much as $900 million in costs such as relocation and legal expenses, based on government data and Bloomberg Intelligence estimates. The company said any cost estimates are “premature and purely speculative,” according to a regulatory filing Dec. 10. The company has disclosed at least $1 billion in insurance coverage for claims.
Sempra's shares have tumbled 8.2 percent since the leak was discovered Oct. 23, as the Standard and Poor's 500 Utility Index fell 3.1 percent during the same time.
Since that October day, methane has been shooting up from a broken, 7-inch diameter underground steel pipeline used to inject natural gas into an 80 billion-cubic-foot storage field more than a mile (1.6 kilometers) below ground. Sempra is drilling a relief well to divert the gas, saying it's unable to repair the pipeline (248 DEN A-9, 12/29/15).
That could take weeks, the company says.
Sandwiched between the Ronald Reagan Freeway and the Santa Susana Mountains, Porter Ranch is Los Angeles's newest community. With homes that have a median value of $707,400, Englander called the neighborhood “a slice of heaven in the middle of a megalopolis.”
The trouble in paradise is hard to miss.
A shopping center by the freeway still bustles, but the longest lines are at a storefront that Southern California Gas established to assist residents with relocation, health problems, air-filtration systems and claims. The smell of chemicals added to natural gas—which itself is colorless and odorless—pervades the air. Homes of residents who have already received relocation assistance sit vacant, while signs warn increased police patrols to ward off looters. Some residents and visitors wear gas masks.
Limited Options
Paige Hemmis and her husband, Jason Short, paid $1.1 million in 2010 for a home in the gated Renaissance neighborhood, with a gurgling stone fountain, Tuscan-style architecture and close-up views of the brown hills that hide the natural-gas storage field less than a mile away.
The couple and their two dogs and three cats began experiencing symptoms in October, about the time Southern California Gas acknowledged the pipeline, which has been in operation since 1972, was leaking.
Jason, a singer, said he suffered a burning sensation in his eyes, dizziness and fell over twice. Paige, a home-improvement specialist who appeared on ABC's “Extreme Makeover: Home Edition,” said her voice became hoarse and she developed a rash on her scalp. She showed mobile-phone pictures of their 4-year-old golden Labrador, Juno, with lesions on his mouth, nose and ears.
The couple has put in for relocation assistance, but with five pets, options are limited, they said.
“I put my life savings into this home because it's behind gates, and I felt safe there,” Hemmis said. “I don't anymore.”
Lawsuits Filed
Many residents, including Hemmis and Short, are talking to lawyers. At least two firms have sued Southern California Gas on behalf of dozens of Porter Ranch residents. Los Angeles City Attorney Mike Feuer sued the company for civil damages.
One of the lawyers representing residents, Robin Greenwald of Weitz & Luxenberg in New York, led a class action against BP Plc after its Deepwater Horizon oil rig exploded in 2010 and killed 11 workers while releasing at least 134 million gallons of oil into the Gulf of Mexico. Five states settled with BP and contractors for more than $20 billion.
“I call this BP on land,” Greenwald said of the Porter Ranch leak. “It's that bad.”
One lawsuit claims the company failed to replace safety valves on the line. Sempra spokeswoman Melissa Bailey said such valves aren't required under state regulations and it's too early to say whether they would have prevented the leak.
The Environmental Protection Agency is now asking Sempra for information as it investigates the leak (249 DEN A-8, 12/30/15).
Sweet Relief
In the meantime, the company is digging a well that will intersect with the leaking pipe so engineers can inject mud and then cement into the pipe. Sempra also is providing plug-in air cleaners that filter the gas odorant from the air.
Since October, the leak has spewed at least 1.6 million metric tons of carbon dioxide into the atmosphere, equivalent to 200,000 vehicles driving for a year, said Dave Clegern, a spokesman for the California Air Resources Board.
Natural-gas storage fields, of which the U.S. has more than 400, “tend to fly under the radar until catastrophe hits,” said Timothy O'Connor, the Los Angeles-based director of the Environmental Defense Fund's oil and gas program. The leak highlights the need to strengthen California's regulations and inspections, he said, and other states should review their own policies.
California Department of Conservation records show that the Porter Ranch facility was inspected annually since 1989 with no leaks or other problems until 2015. The department is proceeding with updated regulations on underground gas injection and storage in 2016, spokesman Don Drysdale said.
Englander said state regulations are more than 30 years old and don't do enough to protect residents or the environment.
“We overregulate virtually every industry in California, yet we have some of the softest regulations on natural-gas storage fields,” he said. “It's astonishing to me.”
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Chemical Safety Board to Hear Process Safety Management Reform
Jan 5, 2016 | Powder & Bulks Solids
The U.S. Chemical Safety Board (CSB) will will hear an update on the new process safety management reforms in California from a panel of experts in a public meeting on Wednesday, January 13, 2016, in Torrance, CA.
“We are continuing to monitor developments in California and look forward to a lively discussion on PSM reform," said Chairperson Vanessa Allen Sutherland. "I believe the actions being taken in the state are some of the most substantial positive safety changes happening right now. Board member Engler and I are championing these very important efforts, which are on the agency's most wanted list.”
The meeting is free and open to the public. Pre-registration is not required, but to assure adequate seating attendees are strongly encouraged to pre-register by emailing their names and affiliations to meeting@csb.gov.
The meeting will also be webcast live and without charge at http://LiveStream.com/CitiCABLE
The CSB is an independent federal agency charged with investigating serious chemical accidents. The agency's board members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The Board does not issue citations or fines but makes safety recommendations to companies, industry organizations, labor groups, and regulatory agencies such as OSHA and EPA. -
Dems Worry About Federal Drilling Lease Suspensions
Jan 5, 2016 | The Hill - E2 Wire
By Devin Henry
Three Democrats are asking federal officials to look into the extended leases granted to certain oil and gas drillers on federal land.
In a letter to the Government Accountability Office on Tuesday, the Democrats said they are concerned about the lease suspensions the Bureau of Land Management (BLM) is issuing to drillers. Regulators can suspend leases on federal land when operators show that their drilling work has been delayed by reasons beyond their control, such as bad weather, rig delays or other issues.
The suspensions extend the term of the lease for as long as they’re issued, giving drillers the chance to hold onto their leases and start up their operations at a later date.
But in their letter, Reps. Raul Grijalva (D-Ariz.), Alan Lowenthal (D-Calif.) and Jared Polis (R-Colo.) questioned whether BLM regulators were approving too many lease suspensions, saying the agency many not have the resources necessary to ensure that operators are fulfilling the terms of the suspensions.
“I am concerned that the BLM may be regularly approving lease suspension requests for reasons beyond what Congress envisioned when the authority was established,” the members wrote.
“At a time when the government should be ensuring every dollar due to taxpayers is being collected, outdated policies and insufficient oversight resources may have created a significant loophole that allows operators to extend the life of a lease without proper scrutiny.”
Almost 10 percent of total leased acreage on federal land is held under a suspended lease, the Wilderness Society found in a December report. The Democrats cited an Inspector General study that found 99 percent of the suspended leases in 2009 came without the Interior Department monitoring that is required by federal law.
The Democrats asked the GAO to study the “nature and extent” of lease suspensions and the ways regulators oversee those suspensions. “Although the Obama Administration has made significant improvements to the oversight of onshore oil and gas operations, insufficient resources have made it difficult to be certain that the BLM is able to meet all of its lease oversight goals,” they wrote.
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House Dems Request Probe Of BLM 'Lease Suspensions'
Jan 6, 2016 | E&E Daily News
By Amanda Reilly
Three House Democrats are asking the congressional watchdog to examine the Bureau of Land Management's practice of suspending oil and gas leases on public lands.
The request comes after the Wilderness Society last month raised questions about the use of "lease suspensions" by the government agency.
In a letter yesterday to the U.S. Government Accountability Office, Democratic Reps. Alan Lowenthal of California, Raúl Grijalva of Arizona and Jared Polis of Colorado said they were concerned about BLM's ability to monitor and enforce requirements for suspensions.
They also charged that BLM was granting suspensions "for reasons beyond what Congress envisioned."
"At a time when the government should be ensuring every dollar due to taxpayers is being collected," they wrote, "outdated policies and insufficient oversight resources may have created a significant loophole that allows operators to extend the life of a lease without proper scrutiny."
Suspensions are granted for federal oil and gas leases to allow companies more time for drilling when they have been delayed by bad weather, permitting issues or other factors beyond their control. Suspensions effectively extend the initial term of a lease.
In its December report, the Wilderness Society found that more than 3 million acres of federal land leased to oil and gas companies are currently under suspension, depriving taxpayers of millions of dollars and locking up public lands that could be used for recreation or preservation.
The Wilderness Society also found that a third of the leases under suspension have remained that way since before 1990 and are in "limbo" because BLM is failing to monitor them.
Most companies with suspended leases aren't paying rents or royalties to the federal government, according to the report. The oil and gas industry in the West has pushed back on the report (Greenwire, Dec. 15, 2015).
Lowenthal, Grijalva and Polis credited the Obama administration for making "significant improvements to the oversight of onshore oil and gas operations." But they cited the Wilderness Society report as showing reason for concern that BLM is not adequately able to meet "all of its lease oversight goals."
The three asked GAO to report on the number of oil and gas lease suspensions, the approval criteria for suspensions, and BLM's ability to track and monitor suspensions. The lawmakers also want information on the public availability of proposed lease suspensions.
Democrats have previously attempted to force active development on public lands leased to oil and gas companies.
Last May, Sen. Ed Markey (D-Mass.) introduced legislation to give the Interior secretary six months to issue regulations establishing an "annual production incentive fee" for any onshore or offshore leases that are not producing oil or gas.
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Oil Lobby Chief Laments ‘Demonization’ Of Keystone Pipeline
Jan 5, 2016 | The Hill - E2 Wire
By Timothy Cama
The oil lobby is bracing for more attacks from environmentalists who helped block the Keystone XL pipeline, wary that the green groups, buoyed by the recent victory, are gearing up to target more pipeline and fossil fuel projects.
American Petroleum Institute (API) head Jack Gerard used his annual State of American Energy speech to condemn the tactics used against the oil and natural gas industry, using the Keystone fight as a prime example.“The demonization of the Keystone XL pipeline remains a powerful cautionary tale of the dangers of energy policy driven by ideology rather than economic reality and has a chilling effect on expansion efforts for our nation’s energy infrastructure,” Gerard said at the speech, which he usually uses to lay out the oil group’s policy priorities for the year ahead.
“Emboldened by their ability to stop the Keystone XL pipeline, anti-fossil-fuel advocates have set their sights on all energy infrastructure projects,” he said.
Gerard repeatedly went after opponents of fossil fuel, saying their policy positions would wreak havoc on the country’s economy, environment and security, among other things.
“There are an ardent few who continue to believe that keeping our nation’s abundant energy resources in the ground is a credible and viable national energy strategy,” he said, a jab at environmentalists who endorse limited fossil fuel production.
By contrast, Gerard said, the oil industry’s positions are best for the climate. Increased natural gas use will result in lower carbon dioxide emissions than coal, he argued, while more pipelines mean that fuels can be transported more efficiently with reduced emissions.
The speech came weeks after the API scored a major victory with Congress’s vote to lift the 40-year-old ban on crude oil exports.
It was the group’s top goal for 2015, which Gerard called “a victory of long-term vision and fact-based policymaking over political ideology and ideological dogma.”
But it also came weeks after world leaders from nearly 200 countries hammered out a global climate change agreement in Paris, which some environmentalists cheered as a significant step toward ending the use of traditional fuel sources.
Despite that, Gerard was optimistic about the future of fossil fuels, citing federal data predicting that they will provide 80 percent of the U.S.’s energy in 2040.
“This is just another data point in support of a long-standing tenet of energy policy held by most economists, academics and government analysts: Fossil fuels will remain the foundation upon which our modern society rests for decades to come,” he said.
Gerard said oil and gas infrastructure projects such as pipelines are at risk from environmentalists and political pressure, leading him to name infrastructure as one of the top policy priorities for the group this year.
“I can’t overemphasize how important these infrastructure issues are,” he said. “Let’s put people to work and build the pipelines, safe pipelines.”
The API’s other top priority will be significantly reforming or repealing the renewable fuel standard, which mandates that ethanol and other biofuels be blended into the country’s supply of gasoline.
“It is a relic of our nation’s era of energy dependency that poses a direct threat to our nation’s economy, risks reversal of important environmental improvements and could raise energy costs for American consumers,” Gerard said.
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Jan 5, 2016 | E&E News PM
By Christa Marshall
The South Dakota Public Utilities Commission today approved TransCanada Corp.'s permit renewal request to build the controversial Keystone XL pipeline through that state.
Even though President Obama last year blocked the project's crossing into the United States from Canada, the company is hoping a new administration or Congress will give it the green light.
Today's decision by the three-member body came after months of deliberations and extensive pushback from American Indian tribes and environmental groups. They wanted commissioners to drop the recertification process after Obama's decision.
The president rejected a cross-border presidential permit of the line out of concern about its impact on climate change, but that did not preclude ongoing consideration of state permits still needed in case KXL's status ever changes in the future.
"This was not a question of whether the permit should have been issued in 2010; rather, it was whether TransCanada filed a valid certification stating that the company can meet the conditions attached to the original permit," said PUC Chairman Chris Nelson.
"We all understand, however," he added in a statement, "that the pipeline cannot be constructed without a presidential permit."
The commission originally backed the South Dakota permit on June 29, 2010. State law required recertification because construction did not begin in the state within four years of that date.
The PUC has been considering the renewal for more than a year, including via hundreds of written comments and feedback from a public input session this summer.
In a statement, Commissioner Gary Hanson said there was "no evidence" that the project would not be able to meet the requirements of the permit.
Representatives from a state coalition of landowners, community leaders, tribes and organizations opposed to KXL quickly slammed the decision.
"Today a battle was lost after the war was won. The facts prove that the project is not in the best interest of any living creature on the planet," said Paula Antoine, one of several local advocates releasing statements of opposition.
"We will remain steadfast beside our friends, allies and relatives to ensure our future generations have clean water and our land is protected," said Antoine.
The PUC said it would release a final decision on its website in coming weeks.
TransCanada would also have to receive permission from Nebraska to build KXL and connect the pipeline to existing facilities in the United States (Greenwire, Nov. 18, 2015).
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API Seeks To Boost Natural Gas As Elections Approach
Jan 6, 2016 | E&E Daily News
By Amanda Reilly
The nation's oil and gas lobbying powerhouse plans to put natural gas front and center in its messaging leading up to the fall elections for president and Congress.
In an annual speech yesterday, American Petroleum Institute President and CEO Jack Gerard said that the group would focus on the "U.S. model" -- API's term for the idea that increased production of natural gas has led to cuts in greenhouse gas emissions in the United States while creating economic opportunity.
API will also hammer the point that fossil fuels will be a part of the nation's energy mix for "decades" to come, despite the recent Paris climate change agreement in which nations agreed to limit warming to 2 degrees Celsius.
Climate advocates say the Paris deal will drive a transition to renewable energy, but Gerard argued that other nations should take note of progress the United States has achieved through increased natural gas use and production.
"Our nation's emissions are lower as a result of greater use of clean-burning natural gas," he said.
Gerard's speech represented his first public remarks since API officially took over America's Natural Gas Alliance.
He suggested that the Obama administration has acted hypocritically when it comes to natural gas by acknowledging that natural gas has led to carbon reductions while at the same time moving aggressively with the Clean Power Plan to promote renewable energy.
Natural gas, Gerard argued, not only reduces emissions but has provided jobs and reliable baseload power for intermittent sources of renewable energy.
"In spite of all of these facts and a wealth of other evidence to the contrary, there are an ardent few who continue to believe that keeping our nation's abundant energy resources in the ground is a credible and viable energy strategy," Gerard said. "There are some in government who will advance their favored forms of energy to the dubious and untested end."
Lena Moffitt, director of the Sierra Club's Beyond Dirty Fuels campaign, slammed Gerard's remarks, pointing to the ongoing methane leak in Porter Ranch, Calif., as evidence that natural gas causes "grave dangers to our health and our climate."
The Sierra Club recently released a report finding that carbon dioxide emissions from U.S. electricity production are at their lowest in 20 years. The group did not credit natural gas for the drop, instead arguing that lower emissions were spurred by large reductions in coal use and increases in clean energy use.
"Big Oil is not going to be able to talk their way out of reality. All across the country, Americans are standing up to retire dirty coal plants, stop dangerous fossil fuel infrastructure projects and keep dirty fuels in the ground," Moffitt said. "The fact is that Americans strongly prefer clean energy to oil, gas and coal, so replacing one fossil fuel with another is a losing bet."
Gerard contended that there are "some who want to ignore the reality of the U.S. model" and that those who were pushing to keep natural gas in the ground were driven by political ideology rather than data.
"There will be those whose rhetoric and contributions to the national energy policy conversation consist only of personal attacks, misinformation and political polemics that attempt to reduce the discussion to a set of false choices," he said. "We will instead work toward proven realistic solutions as demonstrated by the facts of the U.S. model."
As in previous years, API plans to use its "Vote 4 Energy" campaign this year to mobilize support for candidates who support its paradigm. The campaign will seek to use data to show that natural gas is a "winning solution" for the "challenges of our day."
"What the [U.S. model] shows us is we can reduce carbon emissions, if that's the issue of our time, we can do that through cleaner burning natural gas," Gerard said.
Gerard said that API has not aligned itself with either Republicans or Democrats going into the election year.
"We'll be talking to all the candidates," he said, "regardless of political party."
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Montana Governor Names Clean Power Plan Advisers
Jan 6, 2016 | BNA Daily Environment Report
By Andrew Childers
Montana Gov. Steve Bullock (D) appointed a 27-member interim advisory council Jan. 5 to guide the state's development of a compliance plan to implement federal carbon dioxide emissions limits on the existing fleet of power plants.
The committee will make recommendations on Clean Power Plan compliance strategy to the Department of Environmental Quality in advance of the Sept. 6 deadline for states to submit their initial compliance plans to the Environmental Protection Agency. The committee, which includes state legislators, utility executives, union representatives and tribal officials, will examine both rate-based and mass-based compliance options, review economic and environmental modeling and observe the compliance strategies of other states.
“Done right, a Montana plan will drive economic growth and create and maintain good-paying jobs across Montana. It will improve upon our traditional base of energy generation while sparking a new generation of clean technology business, moving us to more renewable energy, and encouraging innovation, savings and energy efficiency for homes and businesses,” Bullock said in a statement.
The EPA's Clean Power Plan (RIN 2060-AR33) sets unique carbon dioxide emissions limits on the power sector in each state, which will be implemented by state regulators. States have the choice of pursuing a mass-based system, which would impose a cap on carbon dioxide emissions to facilitate trading programs, or a rate-based approach that would limit carbon dioxide emissions from the power sector per megawatt-hour of electricity generated.
Rule's Requirement for Montana
The EPA's rule requires Montana to reduce carbon dioxide emissions from its power plants by 47 percent by 2030.
Montana is among the 27 states that have filed lawsuits seeking to overturn the rule. The states have asked the U.S. Court of Appeals for the District of Columbia Circuit to stay implementation of the rule during litigation, arguing it imposes irreversible burdens on state regulators (West Virginia v. EPA, D.C. Cir., No. 15-1363, reply filed, 12/23/15; 247 DEN A-5, 12/28/15).
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Michigan on Track for Clean Power Plan Compliance: WRI
Jan 6, 2016 | BNA Daily Environment Report
Michigan can get 98 percent of the reductions required by the Clean Power Plan (RIN 2060-AR33) through its existing clean energy policies, according to a report from the World Resources Institute. The remaining 2 percent could be met by boosting energy efficiency standards, continuing to require that 10 percent of electricity sales come from renewable sources—a standard that expired in 2015—and increasing the use of natural gas and improving the efficiency of coal plants, said the report, released Jan. 5. Michigan could “nearly double” its required reductions by increasing the renewable standard to 20 percent of sales by 2022 and the efficiency standard to 2 percent of sales beginning in 2019, the environmental group said. Adopting a “market-based carbon pricing program” and investing in energy efficiency would also help, WRI said. Michigan plans to submit its strategy for complying with the plan by the Sept. 6 deadline set by the Environmental Protection Agency, while seeking a two-year extension for submitting a final plan so it can go through the state's rulemaking process (246 DEN A-5, 12/23/15). The report is available at http://src.bna.com/bRw.
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Bill Would Roll Back DOE Standard
Jan 6, 2016 | E&E Daily News
By Christa Marshall
House Republicans are pushing new legislation to exempt some lighting technologies from a Department of Energy efficiency standard set to kick in this year.
The House Energy and Commerce Committee's new bill, sponsored by Rep. Renee Ellmers (R-N.C.), would exempt "power supply circuits, drivers and devices" that connect to light-emitting diodes (LEDs) from a DOE efficiency rule finalized in 2014 covering external power supplies. The rule's requirements are set to take effect next month.
"This legislation is a win for manufacturers in Kentucky, North Carolina, and across the country," said a statement from Ellmers and Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), who is holding a hearing next week on the language.
The lawmakers said it "provides them with the clarity they need to ensure hard-working American consumers have continued access to the best lighting technology on the market."
DOE's efficiency standards have been an ongoing target of some conservatives and industry leaders who say the Obama administration is rolling out rules too fast. Environmental advocates, however, say the administration is acting after long delays and implementing reasonable rules.
The debate popped up during last year's omnibus spending bill discussions. A summary report on that package included language urging the department to consider "impacts to rural communities" in deliberations over residential furnace standards.
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Senate Aims to Beat Holiday Hangover on Energy Policy
Jan 5, 2016 | Roll Call
By Jeremy Dillon
Energy holiday cheer resulting from the omnibus spending bill decked the halls for fossil fuel-backers and renewable supporters alike as Congress headed to its year-end break last month, but don’t expect a holiday hangover.
The Senate is primed in the new year to play catch up with the House as it tries to enact an energy policy update (S 2012) for the first time in more than a decade, although both chambers will have to adjust their vision if they want the White House on board.
“If you look at our energy bill, it really is an energy policy modernization act,” said Senate Energy and Natural Resources Chairwoman Lisa Murkowski, R-Alaska, before the break. “We basically refresh a lot of the energy policies that have not been looked at for a decade plus.”
Murkowski introduced the bipartisan legislation with the energy panel’s top Democrat, Maria Cantwell of Washington, in mid-2015.
The bill would streamline permitting for gas exports while also boosting energy-efficiency standards for commercial and federal buildings, permanently reauthorizing the Land and Water Conservation Fund and requiring infrastructure upgrades to ensure grid reliability and security.
While the bill has bipartisan backing, the recent energy bonanza in the omnibus, including the lifting of a 1970s crude oil export ban and the five year extension for wind and solar tax credits, could either decrease motivation for more floor time on energy or it could bolster momentum even further.
“I am hopeful that we will have time on the calendar, and I am going to be pushing for that,” Murkowski said.
Murkowski added that oil exports in the omnibus would not derail her bill, saying “oil exports are just one aspect of one energy source, but what we have in our bigger, broader energy bill is a focus on all forms of energy, whether it be fossil, renewable, nuclear or hydro. It is far more than just one energy source.”
But energy policy observers predict that with the small amount of floor time in 2016, getting any measure passed would take a lot of momentum.
“It’s going to be difficult to get any floor time in 2016,” said Elizabeth Gore, the energy policy director at Brownstein Hyatt Farber Schreck. “The fact that the energy [provisions] got into the omnibus should build momentum to get some of the second tier energy issues done, but it’s going to be a hill.”
Gore also pointed the presidential election and its effect on driving policy in Congress.
“So much of the Hill will be seen through the prism of presidential elections,” Gore said. “Since neither side right now is really pushing energy policy that may hamper the chance of a broad energy package from getting done.”
But election year timidity may not interfere with the bill’s progress, according to Murkowski’s spokesman.
“There’s no reason why it shouldn’t be taken up in the new year,” said spokesman Robert Dillon. “It has bipartisan support, and Murkowski is committed to it. It’s up to leadership as to when it will hit the floor.”
Senate Majority Leader Mitch McConnell has remained mum about his legislative floor schedule in 2016, outside of his commitment to return to regular order in the appropriations process.
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Regulatory Reform Bills Move Despite Obama's Veto Promise
Jan 6, 2016 | BNA Daily Environment Report
By Stephen Lee
The House Rules Committee ushered to the House floor Jan. 5 a pair of bills that seek to trim back rulemaking power of the Environmental Protection Agency and other federal agencies.
Neither bill is expected to be taken up in the Senate because Democrats firmly oppose them, and the Republican majority lacks the 60 votes needed to overcome a filibuster.
President Barack Obama also would veto both bills should they reach his desk, the White House said in a pair of statements of administration policy issued Jan. 5.
Nevertheless, floor votes on the two measures would give Republicans compelling talking points as they run for re-election, allowing them to tell voters that they tried to hold back runaway government but were thwarted by Democrats.
The committee moved the two bills, the Sunshine for Regulatory Decrees and Settlements Act (H.R. 712) and the Searching for and Cutting Regulations That Are Unnecessarily Burdensome (SCRUB) Act (H.R. 1155), as structured rules, limiting the amendments that can be offered.
H.R. 712 seeks to curb a legal tactic known as “sue and settle,” which advocacy groups often use to sue the EPA for missing a statutory requirement for issuing a rule. Rather than fighting the litigation, the agency then settles with the plaintiff by moving forward with the rule or agreeing to deadlines for decision-making.
H.R. 1155 would create a presidentially appointed commission to find rules that should be amended or repealed because they're overly burdensome or outdated. The bill also would require federal agencies to cut or modify regulations already on the books before they can issue new ones.
The White House said in its policy statement that H.R. 712 “would undermine critical public health and safety protections, introduce needless complexity and uncertainty in agency decision-making and interfere with agency performance of statutory mandates.” The White House said H.R. 1155 would “create needless regulatory and legal uncertainty; increase costs for businesses and State, local and tribal governments; and impede common-sense protections for the American public.”
Republicans countered during the hearing that the regulatory bureaucracy has swelled to the point that it is imposing massive costs on businesses and severely hampering job creation.
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Companies Claim Lack Of 'Due Process' In EPA Air Compliance Order Suit
Jan 5, 2016 | InsideEPA
By Stuart Parker
Companies pursuing a novel suit seeking judicial review of an EPA Clean Air Act compliance order prior to enforcement of the order say that the agency deprived them of "due process" with the order, arguing that EPA failed to allow them to contest the finding and that it is based on an erroneous application of federal air rules.
The suit, CTA Construction and Environmental, LLC and National Electric Coil, Inc., v. EPA, pending in the U.S. Court of Appeals for the 9th Circuit, is a rare test of an air law compliance order. It echoes a dispute over pre-enforcement review of Clean Water Act compliance orders that the Supreme Court eventually said judges can review in a decision in Sackett v. EPA, and could potentially expand Sackett's precedent to the air law.
The two companies want the agency to set aside EPA's July 15 "First Amended Compliance Order and Notice of Opportunity For Hearing" that informed the companies of alleged violations of federal air and waste law. The unusual case involves removal of asbestos during repair operations at the U.S. Bureau of Land Reclamation's Yellowtail Dam hydroelectric plant, located on the Crow Indian reservation in Montana.
The compliance order says that National Electric Coil and its subcontractors failed to follow all the required procedures for handling wastewater containing asbestos filaments under both the air act and the Resource Conservation and Recovery Act (RCRA), and threatens fines if the companies do not comply.
Industry's challenge to the order raises broad issues of when a petitioner may challenge an EPA enforcement action, as air law "notices of violation" have not typically been seen by courts as subject to judicial review. But the compliance order does appear to mark the end of the agency's decision-making process and therefore be judicially reviewable, sources have said.
Petitioners in their Dec. 21 opening brief in CTA Construction note that the Yellowtail Dam compliance order itself states that they "may seek federal judicial review of this Amended Order.”
"With respect to the alleged violations of the Clean Air Act, the Compliance Order is a final appealable order," the companies say, citing case law including Sackett. They note that the high court in that case held "that a compliance order is final and subject to judicial review under similar statutes under the Clean Water Act."
EPA has denied the companies involved in the CTA Construction suit the right to bring a challenge to the air law aspects of the order before the agency's Environmental Appeals Board, and even counseled them to take their case directly to the 9th Circuit, company sources have said.
However, EPA has allowed administrative proceedings with respect to the alleged RCRA violations, creating an "unusual circumstance" where two different sets of proceedings result from a single order.
Opening Brief
In their new brief, the companies say that EPA and the Montana Department of Environmental Quality spent months "bickering" over which of them had regulatory authority over the asbestos-containing waste, which remained in storage pending an agreement over how to dispose of it. The petitioners support Montana's authority over the project, and not EPA's.
The companies say they are complying with EPA's order, but they contest the disposal method required by the agency which involves trucking waste to a distant hazardous waste disposal site at greater costs than the "state of the art" methods they had intended to use.
Further, they say EPA has misapplied the air law's national emissions standards for hazardous air pollutants (NESHAP) for asbestos, saying that the asbestos rule applies to airborne asbestos that results from demolition of asbestos-containing buildings, and not the presence of asbestos filaments in "wash water" that resulted from repair operations at the Yellowtail Dam.
The petitioners therefore ask the court to "set aside the Compliance Order or, in the alternative, vacate the Compliance Order and remand these cases to the agency for additional investigation or explanation so that this Court may conduct a proper review pursuant to the Clean Air Act and the Administrative Procedure Act."
They say, "EPA summarily issued the Compliance Order with no notice, no opportunity for Petitioners to present evidence or contest EPA's findings, and no opportunity for Petitioners to seek administrative review of the alleged violations of the Clean Air Act. Fundamentally, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner."
Second, "by summarily issuing the Compliance Order after months of debate with Montana's DEQ over which agency has authority over asbestos removal at the Yellowtail Dam, EPA acted contrary to law and abused its discretion by exceeding its authority. Specifically, EPA does not have the 'sole authority' to regulate the Yellowtail Dam it claims in its Compliance Order and acted contrary to the authority it delegated to Montana to implement and enforce the asbestos NESHAP under the Clean Air Act."
Third, "the asbestos NESHAP does not apply to the removal of oil and grime laden with stray asbestos particles. The purpose of the Clean Air Act is to reduce emissions of pollutants to the ambient or outside air," petitioners argue.
They further contest the specifics of EPA's allegations of a NESHAP violation, which relate not to any release to ambient air, but to requirements that the companies label the contaminated material, inform the agency of their plans for disposal and that the companies dispose of the material "as soon as practical." The petitioners say the labeling requirements of the NESHAP do not apply in this case, that they obtained a permit for asbestos removal from the Montana DEQ, and any delay in disposal resulted from the jurisdictional dispute between EPA and the state agency.
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Jan 5, 2016 | The Houston Chronicle
Texas Attorney General Ken Paxton recently filed yet another lawsuit against the U.S. Environmental Protection Agency, this time for lowering permissible limits of ozone pollution in U.S. skies. His lawsuit means more Texas taxpayers money will be wasted on yet another needless, politically motivated legal action by one of our Republican officials.
The lawsuit, filed - without irony, apparently - on behalf of the Texas Commission on Environmental Quality, argues that the EPA standard of 70 parts per billion, down from 75 ppb, would have no health benefits and only damage the economy by requiring expensive anti-pollution measures.
The state paid an industry-friendly, Massachusetts-based consulting firm $1.65 million to come up with the conclusion that the new ozone rule is, as Paxton said in a statement, "not supported by scientific data."
The truth is that any decline in ozone levels is helpful, but many scientists and physicians say the EPA ozone standard needs to be dropped to 60 ppb to achieve full health benefits.
Ozone, the haze that enshrouds Houston when sunlight reacts with emissions from cars, power plants and industrial facilities, hurts the environment, aggravates heart and lung ailments and contributes to 7,500 deaths a year in the U.S.
According to the American Lung Association, Houston has the sixth worse ozone pollution in the nation. It has never achieved the old 75 ppb standard, which was set under President George W. Bush.
We oppose the lawsuit, support cleaner air and believe that industry and government should work together to achieve it - and not just the federal government, but the Texas state government.
Absurdly, this is the 23rd lawsuit Texas has filed against the EPA and the 39th overall against the federal government since President Barack Obama took office. Millions of dollars have been wasted and for what?
The simple answer is that it's not for the betterment of Texas, but for our state leaders to score political points with their Republican constituents by opposing the Obama administration at every turn, never mind in this case the consequences for the environment and public health.
Paxton's lawsuits have been accompanied by overblown rhetoric that he's defending "our state from the EPA's harmful and overreaching regulations" and working to "prevent ideologues from gutting the American Dream to advance their own misguided agenda."
Or as one of his spokespersons said a few weeks ago, "It's our duty to defend the rule of law against an aggressive federal government."
It's ridiculous. You're already wasting our money, General Paxton. Spare us the silly rhetoric.
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Poll: 70 Percent Believe In Climate Change
Jan 5, 2016 | The Hill - E2 Wire
By Timothy Cama
A new survey finds that 70 percent of Americans believe the climate is changing.
The poll from Monmouth University, released Tuesday, found a stark partisan divide on most issues surrounding climate change, including whether it is happening, how serious it is and what should be done about it.The research, conducted mostly before nearly 200 nations voted last month in Paris on an international climate accord, found that Democrats (63 percent) are much more likely than Republicans (18 percent) to see climate change as a very serious issue.
The poll provides another piece of support for actions internationally and by President Obama to fight climate change. Obama’s main climate policy, contentious new limits on carbon emissions from power plants, is due to be litigated this year in federal courts.
But the support is complicated. Pollsters found that only 27 percent of respondents agree with the overwhelming scientific consensus that human activity is the main cause of climate change.
“The data exposes the extent to which this has become a partisan political issue in the U.S. rather than a scientific issue,” Tony MacDonald, director of Monmouth University’s Urban Coast Institute, said in a statement accompanying the poll results.
The survey did find support for actions to stop climate change, though the questions were worded mostly to focus on the effects of global warming, like rising sea levels and increased extreme weather.
“The polling shows that Americans believe we are all very much in this together,” MacDonald said. “Nearly two thirds of all respondents and three quarters of younger adults want action from our leaders, even if some in Congress don’t believe there’s a problem.”
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Senators Press Obama On Low-Income Energy Funding
Jan 5, 2016 | E&E News PM
By Geof Koss
Senators from both parties are urging the Obama administration to seek healthy funding levels for key federal programs that help low-income residents pay heating and cooling costs.
Sens. Susan Collins (R-Maine) and Jack Reed (D-R.I.), the chairwoman and ranking member of the Transportation, Housing and Urban Development, and Related Agencies Appropriations Subcommittee, led a bipartisan bloc of 40 senators today asking President Obama to fund the Low Income Home Energy Assistance Program (LIHEAP) at no less than $4.7 billion in the administration's fiscal 2017 budget request, expected next month.
"LIHEAP provides vital assistance to low income households, seniors, and veterans in both the cold winter and hot summer months by helping with their energy bills," wrote the senators. "This funding continues to be a lifeline for some of our most vulnerable citizens. Moreover, as some parts of our country continue to face rising energy costs, LIHEAP helps to ensure that people do not have to choose between paying their energy bills and paying for food or medicine."
Reid and Collins have long championed the LIHEAP program, which generally enjoys support from lawmakers from the Northeast and other areas with frigid winters. Alaska Sen. Lisa Murkowski -- another senior appropriator -- and New Hampshire Sen. Kelly Ayotte were the only other Republicans to sign besides Collins.
Separately, Collins and Reed led a second letter to Obama urging "strong" funding for the Weatherization Assistance Program (WAP) and the State Energy Program (SEP) -- both of which are Energy Department programs that help low-income residents, states and territories make efficiency upgrades and boost the use of clean energy.
"Many low-income families, seniors, and individuals with disabilities have used WAP to make lasting and cost-effective energy efficiency improvements to their homes. WAP has helped to reduce the burden of high energy prices for more than three decades," states the letter, signed by 33 other senators. "The State Energy Program also has a history of success working across all sectors of the economy and supplying cost-effective energy efficiency improvements."
WAP drew scrutiny last year, after a study questioned whether efficiency upgrades achieved the promised savings.
However, DOE's own review, released last summer, found that the program is a "substantially sound investment" (Greenwire, Sept. 17, 2015).
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Advocates Seek EPA's Objection To Air Permit Over 'Maintenance' Dispute
Jan 5, 2016 | InsideEPA
By Stuart Parker
Environmentalists are suing EPA to try to make the agency respond to their petition urging the agency to force strict Clean Air Act prevention of significant deterioration (PSD) review requirements for a paper mill that advocates claim evaded air permit applications by disguising a major facility upgrade as "routine maintenance."
Midwest Environmental Defense Center (MEDC) filed suit Dec. 17 in the U.S District Court for the Eastern District of Wisconsin, asking the court to require EPA to either grant or deny their Oct. 28, 2013, petition. MEDC in the petition asked the agency to object to a Title V permit -- an "umbrella" permit covering all applicable air limits for a facility -- for the Appleton Coated, LLC, paper mill in Combined Locks, WI, because it did not undergo PSD review.
PSD is a program requiring companies to undertake reviews of potentially stringent emissions controls for new facilities or major modifications to facilities in areas attaining EPA's national ambient air quality standards. But the agency allows some exemptions from PSD for routine maintenance done at facilities.
Appleton Coated replaced boiler components known as "superheater" tubes at the paper mill, and Wisconsin under delegated Clean Air Act authority issued a Title V permit for the replacement, after the company said the work was routine maintenance exempt from PSD review -- but advocates disagree with this claim.
In its 2013 petition urging EPA to object to the state-issued permit, MEDC says that under prior EPA practice, superheater tube replacements are not considered "routine maintenance," but are instead significant modifications that should trigger PSD review. This could result in a mandate for air quality impact analysis and installation of best available control technology to cut emissions, among other requirements, MEDC says in its petition.
"Simply stated, projects that 'normally occur once or twice during a unit's expected life cycle' are not routine," MEDC says, citing the U.S. Court of Appeals for the 7th Circuit in its 1990 decision in Wisconsin Electric Power Company (WEPCO) v. William K. Reilly. In that case, WEPCO challenged EPA's determination that changes to a power plant triggered PSD and other Clean Air Act pollution control requirements.
Narrow Exception
MEDC says in the petition that because the air law describes all physical changes at a facility as "modifications," EPA established its routine maintenance exception -- but that exception is narrow, and the superheater replacement does not qualify.
Whether a project falls within the exemption has been a frequent point of contention in air law permitting. The exemption is determined by a four-factor analysis, focusing on the nature and extent of the project; the project's purpose; the frequency of the project; and the project's cost, MEDC says.
In addition to citing WEPCO, MEDC also references a September 1988 policy memo issued by Don Clay, formerly EPA's acting assistant administrator for air and radiation, that establishes this test.
MEDC further cites EPA's May 2000 "Detroit Edison determination," issued by then-EPA Region 5 Administrator Francis Lyons, in response to dispute over a claimed routine maintenance exemption involving electric utility Detroit Edison's work conducted on its Monroe power plant in Michigan. Lyons rejected the company's arguments that its upgrades to that power plant were routine and exempt from the PSD program.
Under the air law, EPA had 60 days to grant or deny the petition seeking its objection to the air permit, but the agency has yet to issue a formal response to MEDC, prompting the new suit.
The EPA "Administrator's failure to perform her non-discretionary duty to grant or deny Plaintiff's petition is ongoing and will continue until enjoined and restrained by the Court," the suit says.
'Routine' Upgrades
Meanwhile, William Wehrum, acting EPA air chief during the Bush administration and now partner with law firm Hunton & Williams, told an October law conference that major efficiency projects might not qualify as "routine" upgrades exempt from PSD or related new source review, forcing them to install additional technologies to reduce emissions of both greenhouse gases (GHGs) and conventional pollutants.
In order to comply with state plans crafted to implement EPA's power plant GHG existing source performance standards (ESPS), it is widely expected that electric utilities will seek to upgrade or replace their existing equipment, such as old combustion turbines. This will help them make the power plant heat rate improvements that states might require to comply with the ESPS, a key element of the administration's climate agenda. However, Wehrum warned that turbine replacements that boost efficiency will trigger review under the PSD or the new source review permit programs, with likely additional complications and costs for companies, according to EPA's current policy on permit review. -
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Sanders Derides Trump for 2012 Climate Change Claim
Jan 6, 2016 | BNA Daily Environment Report
By Anthony Adragna
Democratic presidential contender Sen. Bernie Sanders (I-Vt.) poked fun at a 3-year-old theory from leading Republican presidential candidate Donald Trump that China invented the concept of climate change to weaken U.S. manufacturing.
“How brilliant can you be?” Sanders sarcastically asked at a Jan. 4 rally in Manchester, N.H. “The entire scientific community has concluded that climate change is real and causing major problems, and Trump believes that it's a hoax created by the Chinese. Surprised it wasn't the Mexicans.”
Trump, who has remained atop Republican presidential primary polls for months, denies that human activity significantly contributes to climate change. He also previously said he would eliminate the Environmental Protection Agency, calling its rulemaking efforts to protect human health and the environment a “disgrace” (202 DEN A-5, 10/20/15).
Sanders was citing a November 2012 tweet from the businessman declaring, “The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.”
China has actually undertaken and promised aggressive actions in recent months to combat climate change and poor air quality in its major cities, including a nationwide cap-and-trade emissions trading system. Those bilateral commitments, the most recent of which were announced in late September, played a key role in driving countries around the world toward an international agreement on climate change in December 2015.
Sanders unveiled a plan to tackle climate change in December that includes a carbon tax, expanded fuel economy standards, significant new investments in energy efficiency and a transition toward an energy system without nuclear energy (235 DEN A-6, 12/8/15).
“There is nothing more important than leaving this planet—our only planet—to our kids and grandchildren in a way that is healthy and habitable,” Sanders said at the Jan. 4 rally. “What we are seeing is growth in international conflict because people are going to be fighting over limited natural resources.”
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