Preview Newsletter
ACC AM Feb 1
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A Legislative Hearing on Eight Energy Infrastructure Bills
Feb 2, 2016 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM -
Examining Federal Administration of the Safe Drinking Water Act in Flint, Michigan
Feb 3, 2016 | Committee on Oversight and Government Reform
Location: 2154 Rayburn House Office Building/ 9:00 AM -
The Stream Protection Rule: Impacts on the Environment and Implications for Endangered Species Act and Clean Water Act Implementation
Feb 3, 2016 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building (SD-406)/ 9:30 AM -
H.R. 3797, the Satisfying Energy Needs and Saving the Environment (SENSE) Act and H.R.__, the Blocking Regulatory Interference from Closing Kilns (BRICK) Act
Feb 3, 2016 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM -
Making Sense Of Chemical Safety Reform
Jan 29, 2016 | The Hill - Congress Blog
By Andrew Rosenberg
Last year, both the House and Senate approved bills to reform the Toxic Substances Control Act. Both bills make some improvements over the current law. But neither bill provides the protections the public deserves. Now comes the hard part: Taking the best, and most protective, provisions from the House and Senate bills and coming ... -
Chemical-Exposure Workshop Ends Without Clear Path
Jan 29, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Public health officials cannot answer as well as they want routine questions people living in Flint, Mich., and elsewhere have about their exposures to chemicals, said scientists, state public health officials and other participants during a three-day workshop the Environmental Protection Agency held. -
Sen. Warren Decries 'Weak Enforcement' Of Health, Safety Rules
Jan 29, 2016 | E&E News PM
By Sam Pearson
Federal prosecutors too often let corporate offenders skate free in cases involving serious health and safety violations, according to a report released today by Sen. Elizabeth Warren (D-Mass.). The report, "Rigged Justice: How Weak Enforcement Lets Corporate Offenders Off Easy," highlights what Warren considers the 20 most egregiously... -
NIOSH Plans to Issue Final Diacetyl Document This Year
Feb 1, 2016 | BNA Daily Environment Report
By Brian Dabbs
The National Institute for Occupational Safety and Health is vowing to move forward with a new recommended exposure limit (REL) for diacetyl in 2016, roughly four and a half years after the agency proposed an REL of 5 parts per billion (ppb) on the chemical. -
CSB Approves Report on West Fertilizer Fatal Explosion
Feb 1, 2016 | BNA Daily Environment Report
By Stephen Lee
Citing weaknesses in current regulations, the U.S. Chemical Safety and Hazard Investigation Board approved a final report on the 2013 fatal explosion and fire at West Fertilizer in Texas. The 262-page report found one critical gap in the Occupational Safety and Health Administration's process safety management standard, which lays out detailed... -
Compliance Plans Made In Advance of Boiler MACT Ruling
Jan 29, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Most owners of coal-fired industrial boilers appear to have either shut down or switched to natural gas as a means of compliance with Environmental Protection Agency toxic pollutant emissions limits, an industry official told Bloomberg BNA. Robert Bessette, president of the Council of Industrial Boiler Owners, said pending... -
Senate Hopes to Finish Broad Package by Week's End
Feb 1, 2016 | E&E Daily
By Geof Koss
The Senate will resume debate on bipartisan energy legislation today, as members of both parties hope to complete the first bill addressing a broad range of issues in nearly a decade by the end of the week. -
RGGI Convenes to Talk Clean Power Plan Compliance
Feb 1, 2016 | E&E Daily
By Emily Holden and Rod Kuckro
The Regional Greenhouse Gas Initiative meets tomorrow to discuss how the nine Northeastern member states can use the cap-and-trade program to meet the goals of U.S. EPA's Clean Power Plan. -
Panel Probes Bills to Provide Industries Relief from EPA Regs
Feb 1, 2016 | E&E Daily
By Sean Reilly
Brick kilns and a niche segment of the power industry would get a break from U.S. EPA air regulations under two bills in line for a Wednesday hearing from a House Energy and Commerce subcommittee. -
API Seeks To Intervene For EPA In Lawsuit Over RFS
Jan 29, 2016 | InsideEPA
The American Petroleum Institute (API) is asking the U.S. Court of Appeals for the District of Columbia Circuit for permission to intervene on EPA's behalf to defend the agency against ethanol groups' lawsuit that seeks to force EPA to expand biofuel requirements under its recent multi-year renewable fuel standard (RFS). -
Federal Agencies to Review Calif. Offshore Fracking Impacts
Jan 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Federal agencies will consider the environmental impacts of oil drilling permits issued for hydraulic fracturing and other well stimulation activities along the California coast under a proposed settlement announced Jan. 29 (Envtl. Def. Ctr. v. Bureau of Safety & Envtl. Enforcement, C.D. Cal., No. 2:14-cv-09281, settlement agreement, 1/29/16). -
California Bill Aims to Limit Activities at L.A. Gas Field
Jan 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Emergency legislation to impose an immediate moratorium on new natural gas injections at Southern California Gas Co.'s underground storage field near Los Angeles is expected to move forward Feb. 2. S.B. 380, which the California Senate approved Jan. 28, heads to the Assembly for consideration. The bill aims to address the concerns about... -
Senate Dems Ask EPA To Do More On Methane Emissions
Jan 29, 2016 | The Hill - E2 Wire
By Timothy Cama
A group of Senate Democrats is asking the Environmental Protection Agency (EPA) to regulate methane leaks from existing oil and natural gas wells. The 21 senators, led by Sens. Brian Schatz (Hawaii) and Sheldon Whitehouse (R.I.), said the EPA didn’t go far enough last year when it proposed new rules to cut down on methane leaks but only for... -
EPA, States Work on Single Emissions Reporting Portal
Feb 1, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is continuing to work with states on a single web portal to report all air pollution emissions from regulated industrial facilities, officials said during a Jan. 29 webinar sponsored by the Environmental Council of the States. The Combined Air Emissions Reporting (CAER) project is intended... -
Flint Aid Measure Roils Energy Bill Politics
Jan 29, 2016 | PoliticoPro
By Annie Snider and Darren Goode
Senate leaders' plan to pass the first major energy bill in eight years may get swept up in a campaign-season battle over federal aid to the lead-contaminated city of Flint, Mich. The drinking water crisis in Flint has been snowballing for weeks, heaping criticism on Republican Gov. Rick Snyder for his administration's botched response and pushing... -
EPA Under Fire Over Flint
Jan 30, 2016 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is under fire for its handling of the drinking water crisis in Flint, Mich. Michigan and its Department of Environmental Qualilty (DEQ) have the primary responsibility to keep Flint’s drinking water safe and free of lead. But critics say the federal agency is asleep at the wheel, not doing enough and not...
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Full Text of Stories Below
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A Legislative Hearing on Eight Energy Infrastructure Bills
Feb 2, 2016 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM
-
Examining Federal Administration of the Safe Drinking Water Act in Flint, Michigan
Feb 3, 2016 | Committee on Oversight and Government Reform
Location: 2154 Rayburn House Office Building/ 9:00 AM
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Feb 3, 2016 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building (SD-406)/ 9:30 AM
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Feb 3, 2016 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM
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Making Sense Of Chemical Safety Reform
Jan 29, 2016 | The Hill - Congress Blog
By Andrew Rosenberg
Last year, both the House and Senate approved bills to reform the Toxic Substances Control Act.
Both bills make some improvements over the current law. But neither bill provides the protections the public deserves. Now comes the hard part: Taking the best, and most protective, provisions from the House and Senate bills and coming up with the strongest possible final legislation.
But another, scarier, outcome also is possible. Senate and House negotiators may agree on a bill that combines the two bills’ least protective provisions, something some in the chemical industry would prefer.
The point of reform is to give the Environmental Protection Agency the authority it has lacked ever since the original TSCA was passed in 1976. As a consequence, only about 200 of the tens of thousands of chemicals in commerce have been tested for safety.
What would a strong final TSCA reform look like? Here are some of Union of Concerned Scientists' priorities:
Ensure that the EPA can use the best available science to inform its work. It is crucial that the final bill does not tell the EPA how to use science to assess and regulate toxic chemicals. The EPA ought to operate transparently, and explain the scientific basis for its methods, but legislating scientific methods will block innovation that can produce better results. The House bill is less prescriptive.
Protect the EPA’s work from court challenges. The EPA must focus on public health and safety when assessing chemicals., Costs should not be the priority that opens regulations to legal challenges. The Senate bill is clearer and more protective.
Protect vulnerable populations. A final bill must protect those most exposed to the chemicals, and those most physically susceptible to their harms, including workers, children, fence-line communities, pregnant women, and the elderly. The Senate bill is more specific.
Give the EPA the power to protect the public without going through unnecessary procedural hurdles. The EPA has an existing regulatory framework in place. What it has lacked is the authority to impose meaningful restrictions. The House bill does not increase these hurdles.
Address all PBTs. Persistent, bioaccumulative and toxic chemicals are very dangerous. The EPA should have the authority to regulate all PBTs that pose significant hazards. While the House process for acting on PBTs is more efficient, the House exempts certain PBTs from regulation.
Impose enforceable deadlines on the EPA to regulate chemicals. Deadlines are the only way to guarantee that toxic chemicals are identified and regulated in a timely manner. The Senate bill includes clearer deadlines.
Give states the widest latitude to continue to protect their residents from unsafe chemicals. It is necessary to take elements from both House and Senate bills to reach this goal. The House does not pre-empt states until the EPA issues a final rule, a big plus. But the Senate bill clearly exempts all state laws whose purpose is to gather information or monitor chemicals, and permits states to regulate new uses of existing chemicals that the EPA has not included in its safety assessment and determinations, or new chemicals for risks or uses that the EPA has not identified.
Both bills would not pre-empt state laws passed before August 2015. But the Senate bill more clearly exempts California’s Proposition 65, which requires labeling of products that cause cancer, birth defects or reproductive harms, and the Massachusetts Toxic Use Reduction Act.
Put EPA priorities first. Both House and Senate bills permit companies to ask the EPA to do a chemical evaluation, provided they pay for it. But company requests must be capped, so that the EPA’s priorities always take precedence. The Senate bill caps requests.
Provide resources for the EPA to do its work. The Senate bill authorizes additional federal funds for EPA, and imposes industry fees to pay for up to 25 percent of the agency’s estimated $100 million annual TSCA budget.
Give the EPA the power to require companies to provide the data it needs to determine whether a chemical is safe or not. A final bill must give the EPA the power to ask a company about a new chemical or a new use for an existing chemical without having to justify its need for the information. Neither bill is adequate.
Place limits on confidentiality. Overall, the Senate bill has stronger language addressing the use of confidential business information. The House bill would allow chemical identity to be kept secret, even in the context of health and safety studies.
Do not create any loopholes for new chemicals to escape EPA scrutiny. The Senate bill could permit a company to claim that a new chemical actually was a slightly modified version of an existing chemical. This could lead to dangerous industry efforts to evade regulation. The House bill lacks this harmful provision.
Congress has an opportunity to improve chemical safety in a meaningful way. This legislation, the first major chemical safety law to be passed in more than a generation, could make a positive difference. But that is possible only if House and Senate negotiators keep in mind the needs of the American public, and not the pleadings of high-priced industry lobbyists.
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Chemical-Exposure Workshop Ends Without Clear Path
Jan 29, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Public health officials cannot answer as well as they want routine questions people living in Flint, Mich., and elsewhere have about their exposures to chemicals, said scientists, state public health officials and other participants during a three-day workshop the Environmental Protection Agency held.
By the end of the workshop participants did not, as intended, compile a list of needed research that could help regulatory and health officials (18 DEN A-17, 1/28/16).
The EPA will prepare a workshop report with recommended research and may hold additional forums to address the many issues that arose, said Ila Cote, a senior agency science adviser, as she closed the meeting Jan. 29.
More than 300 state public health officials, federal scientists, academic researchers and consultants met at or listened online to a three-day workshop, “Temporal Exposure Issues for Environmental Pollutants: Health Effects and Methodologies for Estimating Risk.”
Questions participants said they were routinely asked, but could not answer due to insufficient information and insufficient methodologies to generate such information, included:
• Will the lead-tainted water my child briefly drank in Flint, Mich., harm her IQ?;
• I used a paint stripper on furniture before I knew I was pregnant, and now I hear the solvent in the product can harm a baby's development. Will my baby be hurt?;
• If exposure to this hazardous chemical stops, what will happen?; and
• Will the submarine sailors be harmed by their months-long exposures to chemicals in the air on board?
Decisions, Recommendations Made Daily
Despite the absence of information, regulators and health officials have to answer such questions and make decisions every day, said Stan Barone, deputy director of the Risk Assessment Division of the EPA's Office of Pollution Prevention and Toxics. Throughout the workshop other participants made similar remarks.
The duration of exposure, its intensity and the time in a person's life that the exposure occurs are just a few of the many factors participants said could affect whether or not an individual or group is more likely to be harmed by a chemical.
Gary Ginsberg, a state toxicologist at the Connecticut Department of Public Health, discussed research results published by the Dutch Public Health Agency in 2003 about effects certain chemicals can have if exposure occurs in the womb.
The study showed laboratory animals exposed in the womb to chemicals that affect bone development could have skeletal malformations even when the exposure was for only one day, Ginsberg said. “Certain malformations only require one day of dosing during the critical window.”
Decisions Affected by Workshop Questions
Questions Ginsberg and other scientists raised throughout EPA's workshop are relevant to many risk assessments and other chemical analyses the agency has under way. Two mentioned during the workshop were:
• restrictions or other regulations the agency is considering for a solvent called n-methylpyrrolidone (NMP) (56 DEN A-14, 3/24/15); and
• the Integrated Risk Information System's toxicological review of inorganic arsenic.
The questions are relevant to deriving health-protective criteria for drinking water, said Helen Goeden, a senior toxicologist with the Minnesota Department of Health.
Inorganic arsenic, which is a naturally occurring contaminant in some parts of the U.S., but not others, is just one drinking water contaminant to which people may be exposed for less than their lifetime.
Risk assessors usually calculate risk values based on specific durations such as lifelong exposures or eight-hour exposures, Barone said. They also estimate so-called safe exposure levels (different types of risk values) more stringently than the values may need to be set with the goal of protecting public health. The result industries charge is excessively stringent regulation.
Goeden was among the participants that urged EPA to prioritize the many research needs discussed during the workshop.
“I want the most bang for the buck from a public health perspective,” Goeden said.
If early life, or pre- and post-natal, exposures to chemicals can have the most life-long effects, she said. “I'd like to focus there.”
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Sen. Warren Decries 'Weak Enforcement' Of Health, Safety Rules
Jan 29, 2016 | E&E News PM
By Sam Pearson
Federal prosecutors too often let corporate offenders skate free in cases involving serious health and safety violations, according to a report released today by Sen. Elizabeth Warren (D-Mass.).
The report, "Rigged Justice: How Weak Enforcement Lets Corporate Offenders Off Easy," highlights what Warren considers the 20 most egregiously lax prosecutions of corporations last year for environmental and workplace safety violations as well as financial crimes and violations of statutes on consumer product and auto safety.
"A law that is not enforced -- or weakly enforced -- may as well not even be a law at all," Warren said in a statement.
Only one case -- the prosecution of former Massey Energy CEO Don Blankenship -- saw a corporate executive face charges for a company's conduct, said Warren, a former Harvard Law professor who rose to prominence as a critic of Wall Street excess after the 2008 financial crisis.
Warren's call for beefed-up legal authorities for federal prosecutors to go after white-collar crime is unlikely to gain traction in the Republican-led Congress, which is focused on rolling back regulations.
There are "so many Americans who don't feel secure in their daily lives, regulators out of control, regulations that don't make sense and more threats from more directions than ever before," Senate Majority Leader Mitch McConnell (R-Ky.) said earlier this month.
Last fall, the Department of Justice issued new policies intended to target executives accused of violating the law, according to The New York Times, although it's not clear whether the policies will spur change in how the department develops cases.
Blankenship was convicted last year by a federal jury of conspiring to violate mine safety standards, a misdemeanor, in connection with an explosion at his company's Upper Big Branch mine that killed 29 West Virginia miners (E&ENews PM, Dec. 3, 2015).
Under federal mine safety laws, it was not possible to charge Blankenship with a felony for the violation he was convicted for, even though his company's 2,400 safety violations in 2009 were found to have contributed to such a large loss of life, Warren's report says.
The report also points to what it calls lax punishments for DuPont Co., Exxon Mobil Corp., Bayer CropScience LP and BP PLC last year.
When four workers were killed at a DuPont chemical plant in La Porte, Texas, in 2014, federal regulators fined the company $372,000 for workplace violations. The Occupational Safety and Health Administration also placed DuPont in its Severe Violator Enforcement Program but didn't bring charges against DuPont managers (Greenwire, July 9, 2015).
Bayer CropScience settled with U.S. EPA last year over a 2008 explosion at an Institute, W.Va., pesticide plant that killed two workers, but its $5.6 million civil settlement included $4.6 million for safety fixes the company probably would have carried out anyway, the report says (Greenwire, Sept. 22, 2015).
At the time, Bayer said the settlement "reinforces for us our determination to ensure that the safety of our employees and neighbors is the first priority for Bayer."
Oil company Exxon Mobil also reached a civil settlement last year over a 2013 spill of 134,000 gallons of crude oil from its Pegasus pipeline near Mayflower, Ark. Exxon's settlement with the Department of Transportation's Pipeline and Hazardous Materials Safety Administration required a payment of more than $5 million, far short of the maximum penalty under the Clean Water Act of $21.5 million (Greenwire, Oct. 2, 2015).
Warren's report also assails the final settlement between the Department of Justice and BP PLC over the 2010 Deepwater Horizon oil spill (Greenwire, Oct. 5, 2015). BP agreed to pay $20.8 billion, and Attorney General Loretta Lynch called it "a strong and fitting response."
Warren said the deal was improper because it was structured to let BP deduct $15 billion of those payments from its income for tax purposes, helping the company save $5 billion.
"When the government lets them off with a slap on the wrist, corporate criminals have free rein to operate outside the law," Warren said. "They can game the system, cheat families, rip off taxpayers, and even take actions that result in the death of innocent victims -- all with no serious consequences."
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NIOSH Plans to Issue Final Diacetyl Document This Year
Feb 1, 2016 | BNA Daily Environment Report
By Brian Dabbs
The National Institute for Occupational Safety and Health is vowing to move forward with a new recommended exposure limit (REL) for diacetyl in 2016, roughly four and a half years after the agency proposed an REL of 5 parts per billion (ppb) on the chemical.
The new REL will be part of a final “criteria document” on diacetyl and 2.3-pentanedione. That document is in “final review” but the agency hasn't yet narrowed down more precise timing for its release, NIOSH spokeswoman Nura Sadeghpour said in a Jan. 29 statement to Bloomberg BNA.
That release will be the final step in the policy-making process, she said.
Worker safety advocates have pushed for regulatory action on diacetyl, including an Occupational Safety and Health Administration permissible exposure limit (PEL), since the discovery in 2000 that exposure to the chemical caused eight microwave popcorn industry workers to contract obliterative bronchiolitis. OSHA denied a union-led petition to implement an emergency temporary standard on diacetyl in 2007, and the agency withdrew an advance notice of proposed rulemaking for the chemical two years later.
The disease inflicts those affected with “inflammation and scarring in the smallest airways of the lung,” said a NIOSH best practices document on the chemicals published in 2015.
Diacetyl also is used in coffee flavoring and naturally releases as part of the coffee bean roasting and grinding process.
NIOSH floated a draft document with the 5 ppb REL in 2011. That document tacked on a preliminary REL for 2,3-pentanedione, a diacetyl substitute, at 9.3 ppb. The draft also proposed 15-minute short-term exposure limits at 25 ppb for diacetyl and 31 ppb for 2,3-pentanedione.
A NIOSH spokesman previously told Bloomberg BNA that the agency planned to release the final criteria document for diacetyl by the end of 2015 .
Complexity of Diacetyl Research
A spokesman for the National Coffee Association pointed to complexity in the research surrounding diacetyl as a likely cause of the lengthy policy making process at NIOSH.
“The science is very complex, but the original level that came out in the preliminary proposal is extremely low; it's not a whole lot beyond the level of detection,” Joe DeRupo said in a Jan. 29 interview with Bloomberg BNA. “The jury is still out on what a real number is and we do feel the original 5 ppb is exceedingly and necessarily low.”
DeRupo said exposure to diacetyl in the bean roasting and grinding process hasn't caused a single contraction of obliterative bronchiolitis.
Even staunch advocates of diacetyl regulations say recent research hasn't yet paved the way to a clear target for an exposure threshold.
“It could go either way; [the REL] could be enhanced with new information that further substantiates the REL proposed in 2011, or there may be more information ascertained that means it needs to be even lower than that,” Celeste Monforton, a professor with the George Washington University Milken Institute School of Public Health, said in a Jan. 29 interview with Bloomberg BNA. There is still “emerging” information on diacetyl, as opposed to thoroughly investigated hazards like asbestos and benzene, said Monforton.
Peg Seminario, safety and health director at the AFL-CIO, said diacetyl has drifted off her organization's radar in recent years. Still, Seminario emphasized the need to regulate the chemical in another Jan. 29 interview with Bloomberg BNA.
“I think what's clear in the latest reports and investigations is that the exposure risks are greater than previously identified,” Seminario said. “There's no question about that. We are continuing to see disease in individuals and exposure needs to be reduced.”
The flavoring industries have moved away from diacetyl use in recent years, opting now to use substitutes, according to Seminario and DeRupo. Diacetyl and 2,3-pentanedione are volatile organic compounds dubbed alpha-diketones. Often those substitutes are equally hazardous.
“Whether or not there's any way to do blanket REL or PEL on alpha-diketones, I don't know,” DeRupo said. “I don't know what the science is or whether that's feasible.”
OSHA continues to cite companies for exposing workers to diacetyl using the agency's general duty clause .
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CSB Approves Report on West Fertilizer Fatal Explosion
Feb 1, 2016 | BNA Daily Environment Report
By Stephen Lee
Citing weaknesses in current regulations, the U.S. Chemical Safety and Hazard Investigation Board approved a final report on the 2013 fatal explosion and fire at West Fertilizer in Texas.
The 262-page report found one critical gap in the Occupational Safety and Health Administration's process safety management standard, which lays out detailed requirements for handling toxic chemicals but doesn't include fertilizer-grade ammonium nitrate (FGAN), the highly explosive substance that detonated at the West facility.
During a May 2015 discussion between OSHA and the safety board, “OSHA admitted that this was an error,” the report said.
In the late 1990s, OSHA considered adding FGAN to the process safety management (PSM) list, but the effort failed due to resource constraints, the board found. The agency should now add FGAN to the list, the CSB said.
Blast Caused 15 Fatalities
Twelve emergency responders and three members of the public died when a stockpile of FGAN detonated at West's facility on April 17, 2013. Local hospitals treated 260 patients, and many nearby buildings were flattened.
During a three-hour meeting Jan. 28 in Waco, Texas, 20 miles south of the West Fertilizer facility, each of the CSB's four board members voted to approve the report, including its recommendations, officially closing the investigation.
The CSB has no enforcement authority. Instead, it lobbies for improvements in the chemical industry through its reports and works with various parties to implement its recommendations. More than 75 percent of the CSB's recommendations are ultimately adopted, said Veronica Tinney, the board's recommendations specialist.
Uncoated Wood Helped Fire Spread
The CSB found another weakness in OSHA's standard for explosives and blasting agents: the standard allows companies to store FGAN in wooden bins, provided the wood is protected against the impregnation of ammonium nitrate.
But OSHA's rule isn't specific enough—for example, it doesn't define the word “impregnation”—leaving users “to decide appropriate safety measures without proper instruction,” the CSB said. Moreover, wooden bins aren't recommended in other countries for storing FGAN, the report said.
At the time of the explosion, West stored between 40 to 60 tons of FGAN in three plywood bins, CSB supervisory investigator Johnnie Banks said during a public meeting that preceded the vote.
However, the plywood hadn't been treated with coated or clad materials, as the OSHA rule prescribes. The CSB found the raw plywood likely enabled the fire to spread between storage bins.
OSHA's explosives and blasting agents standard wasn't very well-known throughout the fertilizer industry at the time of the blast, said Beeta Lashkari, a CSB investigator. The agency has since worked to increase awareness of the standard, Lashkari said.
Feasibility of Retrofitting
Board Member Kristen Kulinowski suggested that CSB staff and industry players should consider how existing storage facilities could be retrofitted to make them safer.
In response, CSB investigator Lucy Sciallo-Tyler acknowledged the economic issues some companies would face in retrofitting old buildings. But she also noted that wooden bins have to be replaced from time to time due to wear, presenting an opportunity to switch them for bins made of safer materials.
The CSB's investigators weren't able to determine how the West Fertilizer fire started.
FGAN is a stable substance, Banks said, but it can detonate when mixed with other substances. As the fire raged in the storage building—which lacked a sprinkler—burning asphalt shingles and soot likely contaminated the piles of FGAN, according to Banks.
Industry Pushes Back
During the public comment part of the meeting, Debra Satkowiak, president of the Institute of Makers of Explosives, told the board that FGAN plays an important role in the U.S. agricultural economy.
“There is no viable alternative,” Satkowiak said.
Further, the chemical's behavior is known, understood and predictable, and presents no hazard to workers or the public when managed properly, Satkowiak said. Consequently, she said, FGAN should not be added to OSHA's process safety management list.
Sam Mannan, a professor of chemical engineering at Texas A&M University, urged government agencies and the fertilizer industry to implement the CSB's recommendations as soon as possible to prevent more incidents.
Otherwise, Mannan said he was “afraid that these well-done and thoughtful investigation reports will not yield any beneficial outcome.”
Board to Study Siting of Facilities
Also during the meeting, CSB chairperson Vanessa Sutherland said the agency has developed a proposal for a new study about how existing regulations can be improved to address the risk of chemical facilities being located close to communities (14 DEN A-12, 1/22/16).
Nearly half of the 80 facilities across Texas storing more than five tons of FGAN are located within a half-mile of a school, hospital or nursing home, the CSB said.
Videos and slide shows presented during the meeting showed the massive scale of the damage to neighboring buildings, many of which were completely demolished. Several photographs depicted blown-out windows, collapsed ceilings and shorn-off walls.
CSB investigator Jerad Denton said two factors were to blame for the close proximity of residential buildings to the blast location. First, the city expanded in the direction of the West facility over time, and second, not enough zoning regulations were in place at the federal, state and local levels to address the siting of FGAN storage facilities.
Emphasis Program Needed?
The report further called on OSHA to launch a regional emphasis program in parts of the country where fertilizer storage facilities are common. Such a program would include a certain number of inspections per year, the CSB said.
The precise cause of the explosion may never be known because ammonium nitrate behaves so unpredictably, according to the report.
However, the CSB did identify two probable contributing factors: (1) the contamination of the FGAN with materials that served as fuel and (2) the nature of the heat buildup and ventilation of the storage space. The report also contains three specific scenarios describing how the detonation may have happened.
Factors Gaps Leading to Deaths
Several factors may have also contributed to the deaths of 12 emergency responders, the report concluded. The personnel didn't establish an effective incident command system, hadn't been adequately trained in the handling of hazardous materials, didn't know enough about the hazards of ammonium nitrate and lacked situational awareness on the scene, according to the report.
To make matters worse, much of the technical information about ammonium nitrate that was available to the firefighters was “limited and conflicting,” the report said.
Board Recommendations
The board's final report also contained recommendations calling on OSHA to revise its explosives and blasting agents standard to prohibit the use of combustible materials for ammonium nitrate facilities and bins, and also to require automatic fire sprinkler systems for indoor storage areas.
Other recommendations went to the Environmental Protection Agency, the Federal Emergency Management Agency and various Texas state agencies.
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Compliance Plans Made In Advance of Boiler MACT Ruling
Jan 29, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Most owners of coal-fired industrial boilers appear to have either shut down or switched to natural gas as a means of compliance with Environmental Protection Agency toxic pollutant emissions limits, an industry official told Bloomberg BNA.
Robert Bessette, president of the Council of Industrial Boiler Owners, said pending litigation over the legality of the maximum achievable control technology standards for boilers largely won't affect the decisions that boiler owners made to come into compliance. Initial results of a survey of industrial boiler operators found that about 74 percent to 76 percent of operators converted to natural gas, while about 14 percent to 16 percent shuttered their boilers, Bessette said.
“That doesn't leave very many people staying on coal and solid fuels,” Bessette said.
The major source boiler standards, commonly referred to as boiler MACT, cover more than 14,000 existing boilers, which are found at chemical plants, petroleum refineries and other industrial facilities. The rule, which the EPA estimated to cost $1.6 billion annually, is being challenged by environmental groups that are seeking even stronger standards and industry groups that object to the methodology the EPA used to establish various requirements under the rule.
The compliance deadline for boiler operators is Jan. 31, three years after the effective date of the rule. Facilities that needed more time to either install controls or switch fuel sources were eligible for a one-year extension from state regulators, but industry sources were unable to quantify how many facilities were granted such an extension.
The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments over the legality of the boiler MACT rule on Dec. 3, 2015, and failed to issue its decision in advance of the Jan. 31 compliance deadline (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, argued 12/3/15; 233 DEN A-5, 12/4/15).
Standards Originally Due in 2000
James Pew, an Earthjustice attorney, described implementation of the boiler MACT rule as a long overdue development that will help save thousands of lives per year from reduced exposure to toxic pollution. While Pew argued before the D.C. Circuit on behalf of the Sierra Club and other environmental organizations that allege the boiler MACT rule is too weak, he told Bloomberg BNA Jan. 29 that it is good that the public will get “at least some” protection from boiler pollution.
“It's about time,” Pew said. “This is a rule that was due in 2000.”
Pew said boiler operators have gotten a “15-year compliance holiday” as a result of the EPA's failure to meet its statutory deadline to come out with acceptable standards for boiler emissions.
The EPA initially promulgated boiler standards in 2004, four years after the Clean Air Act's statutory deadline for the agency to issue a rule covering boilers and incinerators, but the D.C. Circuit vacated that rule in 2007 (NRDC v. EPA, 489 F.3d 1250, 64 ERC 1673 (D.C. Cir. 2007); 112 DEN A-11, 6/12/07).
However, Dixon Pike, a partner at Pierce Atwood LLP, said the unsettled status of the legal challenges against various aspects of boiler MACT forced boiler operators to make “significant expenditures” to comply with a rule that may end up changing due to court action.
“The legal status has put boiler owners and operators in a very difficult position,” Pike said.
Emissions Limits for Some Units
While the boiler MACT standards (RIN 2060-AQ25; RIN 2060-AR13) included requirements for all existing boilers, the rule required the most from about 1,700 solid fuel and liquid-fired boilers, Don Wolf, an associate mechanical engineer and Energy Global Practice Leader in the St. Louis office of the consulting firm Burns & McDonnell, told Bloomberg BNA.
Wolf said those boilers, which include boilers that burn coal, are required to meet numerical emissions limits established by the EPA for various pollutants. Those numerical emissions limits include limits on emissions of hydrogen chloride, carbon monoxide and mercury. In contrast, operators of natural gas-fired boilers are not subject to those emissions limits, though they must adhere to work practice standards that include a requirement for a periodic tune-up.
Wolf said that while it was possible to retrofit pollution control equipment, including bag houses to increase the capture of particulate matter emissions and dry sorbent injection systems to control hydrogen chloride emissions, converting to natural gas was an “attractive option” because the lack of emissions limits for gas-fired boilers eliminates a lot of the compliance requirements.
In addition, Wolf said, many facilities were likely “gun-shy” to make the capital investment in pollution controls given the legal uncertainty surrounding the boiler MACT rule. Even though it was more costly up-front to convert to natural gas, Wolf said, the decision to convert to natural gas offers facilities more regulatory certainty.
“The first rule and its vacatur [in 2007] had a very prominent effect on how facilities complied on this final rule,” he said.
In addition to the capital required to either install pollution controls or switch to natural gas, boiler operators also needed to complete a one-time energy assessment and conduct required tune-ups by the Jan. 31 compliance deadline, Pike, of Pierce Atwood, said.
Gas Conversion Likely Not Reversible
Bessette said the pending litigation over the boiler MACT rule would likely have little immediate effect if the environmental petitioners were to win because the court would likely remand the rule back to the EPA without vacatur. In that scenario, the EPA would spend several years reviewing and “fixing” the legal deficiencies, giving boiler owners years to keep operating under the boiler MACT rule as it is written, Bessette said.
If industry were to prevail in its arguments, Bessette said, it would provide boiler operators with a “little bit of breathing room” on operational flexibility, but that would not change what boiler owners did in order to come into compliance with the standards. Given that most coal-fired boiler operators chose to make the necessary up-front investment to convert to natural gas as a fuel source, it likely wouldn't make economic sense to switch back to coal unless gas prices were to rise dramatically, Bessette said.
“Once you go to gas, the probability of going back to coal, in my mind, is infinitesimally small,” he said. “There's nothing in those litigations that could, I think, significantly impact the decisions that have been made to comply with the rule as written in the immediate term,”
Paper Mills Ready to Comply
The boiler MACT rule also had an effect on boilers at paper and wood product mills, which generally use biomass as a fuel.
Tim Hunt, senior director of air quality programs at the American Forest & Paper Association, told Bloomberg BNA in an e-mailed statement that mills have been installing the necessary pollution controls and completing the necessary compliance testing in advance of the Jan. 31 deadline.
Hunt, in a Jan. 27 blog post, described efforts by the paper and wood products industry to improve the boiler MACT rule, including advocacy efforts against a 2010 proposed version of the standards that would have led to even higher compliance costs for industry.
Hunt told Bloomberg BNA that the November boiler MACT reconsideration rule (RIN 2060-AS09) helped clarify what fuels can be burned in boilers under the standards and cleared up startup provisions that are important to industry. Hunt said the association supported the EPA's defense of its emissions limits from challenges brought by environmental groups.
“It would have been preferable to have the litigation completed by this time, but obviously that didn't happen despite our efforts to push it along quicker,” Hunt said. “That said, the deadline is the deadline, and we hope that the significant investments made do not become stranded or obsolete with a court ruling, as happened in 2007.”
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Senate Hopes to Finish Broad Package by Week's End
Feb 1, 2016 | E&E Daily
By Geof Koss
The Senate will resume debate on bipartisan energy legislation today, as members of both parties hope to complete the first bill addressing a broad range of issues in nearly a decade by the end of the week.
The chamber will gavel in this afternoon and resume consideration of the bill (S. 2012), which contains provisions to boost efficiency, support natural gas exports and modernize energy infrastructure.
The measure, written by Senate Energy and Natural Resources chairwoman Lisa Murkowski (R-Alaska) and Ranking Member Maria Cantwell (D-Wash.), cleared the panel last summer on an 18-4 vote.
"We're gonna finish it next week," Majority Whip John Cornyn (R-Texas) said before senators headed out for the weekend Thursday.
There won't be any roll call votes until tomorrow because of the Iowa caucuses, but more debate on the bill and amendments is expected today. As of Friday, there were 190 amendments in the queue, and that total will grow as senators return to the Capitol today.
"We're game on at 3 o'clock," Murkowski spokesman Michael Tadeo said Friday.
Murkowski and Cantwell steered clear of contentious amendments last week, but it remains to be seen whether the detente will last through this week (E&E Daily, Jan. 29).
Members of both parties have filed or plan to submit amendments on a number of controversies, including U.S. EPA's climate policies and the Interior Department's pause on new coal leasing on public lands.Climate amendments
Democrats this week will unveil climate-themed amendments to make Republicans squirm and are eyeing the package as a vehicle to address a pair of ongoing environmental crises.
Sen. Jack Reed (D-R.I.) is pushing an amendment meant to push mining and drilling companies to boost reporting to investors on the impacts of climate change on their business.
California Democratic Sens. Dianne Feinstein and Barbara Boxer will file an amendment this week addressing the continuing massive methane leak from the Aliso Canyon natural gas storage site operated by Southern California Gas Co. (Greenwire, Jan. 29).
Their amendment would simply task the Energy Department with reviewing and responding to the leak, but the effort will highlight a major concern of environmentalists and like-minded Democrats: the threat that methane -- a particularly potent greenhouse gas -- from oil and gas operations poses to the environment.
Sen. Brian Schatz (D-Hawaii) has already filed an amendment that would require EPA to issue regulations from existing oil and gas facilities -- a proposal that Republicans won't be enthused about (E&E Daily, Jan. 29).
Separately, a proposal by Michigan Democratic Sens. Debbie Stabenow and Gary Peters that would steer $600 million toward the lead-contaminated drinking water of Flint, Mich., is meeting resistance from Republicans over its cost.
Other controversial amendments on the Democratic side include a proposal filed by Sen. Al Franken (D-Minn.) last week that would establish a federal energy efficiency resource standard for electricity and natural gas suppliers. The proposal got a cool reception in committee from Republicans, but Cantwell last month singled it out as a top priority for her in the debate.
Additionally, Sen. Angus King (I-Maine) filed an amendment to address the battles playing out nationwide over state net-metering policies. The proposal, backed by Minority Leader Harry Reid (D-Nev.), would preserve consumer agreements on net metering by limiting state regulators' powers to impose higher rates.
Republicans have already filed amendments seeking to block EPA's Clean Power Plan, as well as proposals aiming to delay its implementation until a series of reviews.
In a letter to senators as a debate kicked off last week, the Natural Resources Defense Council noted it doesn't oppose the bill, despite the inclusion of some "problematic provisions," but warned that could change depending on what amendments are adopted.
"As consideration of S.2012 begins, we hope you will improve the bill by remedying problematic sections and adding new provisions to accelerate the transition to a clean energy future and address climate change," the group wrote. "We urge the Senate not to further expand development of dirty fuels or weaken environmental and public health protections. Adding such provisions would prompt NRDC to oppose the bill's passage."Bipartisan amendments
There are also amendments in the queue that have some degree of bipartisan support or split the chamber along regional, rather than partisan, lines.
Sen. John Hoeven (R-N.D.) noted that he has Democratic backing for three of his amendments linked to controversial subjects: EPA's coal ash disposal requirements, handing states chief oversight of fracking operations and overhauling cross-border infrastructure permitting in North America.
With some Democratic support, Hoeven signaled he's comfortable seeking votes on the measures, although he acknowledged there's plenty of competition.
"I'll get to offer some," he said last week. "I don't know that I'll get to offer all."
There are also amendments to strike the permanent reauthorization of the Land and Water Conservation Fund, as well as to shift the funding allocations for the program, which was the subject of a protracted fight last fall when it expired.
Sen. Richard Burr (R-N.C.), a strong supporter of LWCF, said last week that he didn't think either amendment would garner enough support for adoption if put to a vote.
Another wild card is a handful of amendments seeking to rescind or make changes to the renewable fuels standard.
Sen. Jeff Flake (R-Ariz.), a longtime RFS critic, said it was unclear whether an amendment he sponsored with Sen. Pat Toomey (R-Pa.) and Feinstein to repeal the portion of the program met by corn ethanol would come up.
"We're certainly pushing," he told E&E Daily last week. "It's about time."
The American Energy Alliance last week launched a six-figure ad buy opposing the Toomey-Feinstein-Flake amendment, saying in a letter to senators that while it opposes the "fatally flawed" RFS, the amendment would preserve the advanced biofuels requirements of the program.
Even though any RFS votes would come after today's Iowa caucuses are over, one industry lobbyist who opposes the standard said it was doubtful that Majority Leader Mitch McConnell (R-Ky.) would be enthused over ethanol-related amendments, which would divide his caucus heading into the November elections.
"I don't think any one of them will get a vote," the lobbyist said Friday.
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RGGI Convenes to Talk Clean Power Plan Compliance
Feb 1, 2016 | E&E Daily
By Emily Holden and Rod Kuckro
The Regional Greenhouse Gas Initiative meets tomorrow to discuss how the nine Northeastern member states can use the cap-and-trade program to meet the goals of U.S. EPA's Clean Power Plan.
The 2016 Program Review in Wilmington, Del., will look at compliance modeling scenarios.
Each Monday, Power Plays previews upcoming moves on the way to Clean Power Plan compliance and recaps the week's developments.
Power companies and environmental groups filed relatedcomments in November (ClimateWire, Nov. 20, 2015). Some interests are worried that linking carbon-trading systems with other states might undercut RGGI's environmental success.
ClimateWire reporter Emily Holden will cover the meeting.
This week on Capitol Hill, the Senate may continue to discuss an unlikely-to-succeed amendment to thwart the Clean Power Plan that Republican lawmakers hope to attach to wide-ranging energy legislation (E&ENews PM, Jan. 28).
Tomorrow, the House Science Committee digs into the Paris climate conference commitments.
Beginning tomorrow in Minnesota, regulators host the first in a series of community listening sessions on the Clean Power Plan at Southwest Minnesota State University in Marshall, where the state’s wind energy industry has become an economic mainstay. Listening sessions will also be held in St. Cloud, Bemidji and Duluth, where regulators will solicit feedback from various constituencies, including Native American tribes and industrial stakeholders on the state’s Iron Range.
In neighboring North Dakota, where roughly 1,500 people turned out for the Department of Health’s first round of public meetings last November, regulators said they are engaging representatives of the state’s lignite coal industry, which has concerns about how the CPP will affect the state’s mining economy, which produces roughly 30 million tons steam coal annually. North Dakota has one of the toughest emissions targets under the CPP with a required 45 percent rate reduction.
On Wednesday, the Wharton School of the University of Pennsylvania in Philadelphia hosts anevent considering the role of nuclear power under the Clean Power Plan. ClimateWire reporter Umair Irfan will attend.
On Thursday, the Missouri Public Service Commission holds a workshop on the rule.EnergyWire reporter Jeffrey Tomich will report.
In case you missed it:States opposed to the Obama administration's Clean Power Plan made good on a recent threat to take their battle to the Supreme Court (EnergyWire, Jan. 27). Other litigants -- including utilities and coal groups -- joined them (EnergyWire, Jan. 28).The nation's power companies are advocating for a large and flexible carbon trading system under EPA's federal plan to cut greenhouse gas emissions, but environmental advocates say certain restrictions are needed to ensure the best climate outcomes (ClimateWire, Jan. 26).Kentucky's Republican governor, Matt Bevin, said his administration intends to ask EPA for a two-year extension on the agency's rule to curb carbon emissions from power plants (EnergyWire, Jan. 25).A Missouri lawmaker wants Clean Power Plan costs to be a line item on utility bills (EnergyWire, Jan. 25).Local groups in Virginia are pushing back on Dominion Resources Inc.'s hopes for a rate-based plan (ClimateWire, Jan. 27).
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Panel Probes Bills to Provide Industries Relief from EPA Regs
Feb 1, 2016 | E&E Daily
By Sean Reilly
Brick kilns and a niche segment of the power industry would get a break from U.S. EPA air regulations under two bills in line for a Wednesday hearing from a House Energy and Commerce subcommittee.
First up on the agenda of the Subcommittee on Energy and Power is H.R. 3797, a measure sponsored by Rep. Keith Rothfus (R-Pa.) that would relax emissions requirements on power plants that burn coal refuse. As defined by Rothfus, that waste is made up of lower-quality coal, rocks and dirt. Decades of mining have left Pennsylvania and several other states littered with billions of tons of the stuff. Besides sullying the landscape, coal refuse can also produce acid runoff that pollutes streams.
Enter what are known as waste coal generating plants, which specialize in burning the refuse to produce electricity. To the backers, the plants not only funnel more power to the grid but also help dispose of enormous amounts of harmful waste. In Pennsylvania, the industry "has produced incredible environmental and economic benefits," Rothfus said in a news release last October heralding the introduction of his bill.
The legislation would ease federal air regulations that plant operators are warning could put them out of business, according to a committee summary. One section would ease restrictions on sulfur dioxide emissions set by EPA's Cross-State Air Pollution Rule made final in 2011; another would furnish an "alternative" means of complying with sulfur dioxide limits in the Mercury and Air Toxics Standards put in place the next year.
The legislation would ensure that "coal refuse plants can continue restoring the environment, protecting health and creating hundreds of good-paying jobs," Rothfus said in the release.
Job protection is cited as the rationale for the second bill, which would block EPA from enforcing recently imposed emissions restrictions on brick and ceramic clay manufacturers until all court challenges are settled.
EPA officials rolled out the standards in September; they are facing lawsuits filed by both industry groups and environmentalists with the U.S. Court of Appeals for the District of Columbia Circuit. In their forecast of the regulations' impact, EPA analysts predicted that the cost of compliance could put up to four brick-making plants at risk of closing; critics fear the effects could be worse.
The committee released a draft of the bill last month. Rep. Bill Johnson (R-Ohio) plans to introduce it before Wednesday's hearing, spokesman Ben Keeler said Friday. While challenges to EPA rules can sometimes take years to resolve, "let the judicial process play out before we start putting more brick-makers in the line of fire," Keeler said.
Among the witnesses will be the head of an Alabama brick firm, an environmental manager at a power company that runs coal waste plants and the chairman of a Pennsylvania advocacy for mine reclamation.
Schedule: The hearing is Wednesday, Feb. 3, at 10 a.m. in 2123 Rayburn.
Witnesses: Rep. Keith Rothfus (R-Pa.); Davis Henry, president and CEO, Henry Brick Co.; Creighton "Butch" McAvoy, president, McAvoy Brick Co.; Vincent Brisini, director of environmental affairs, Olympus Power LLC; and Dennis Beck, chairman of the Western Pennsylvania Coalition for Abandoned Mine Reclamation.
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API Seeks To Intervene For EPA In Lawsuit Over RFS
Jan 29, 2016 | InsideEPA
The American Petroleum Institute (API) is asking the U.S. Court of Appeals for the District of Columbia Circuit for permission to intervene on EPA's behalf to defend the agency against ethanol groups' lawsuit that seeks to force EPA to expand biofuel requirements under its recent multi-year renewable fuel standard (RFS).
In a motion to intervene filed Jan. 29 in Americans for Clean Energy, et al. v. EPA, et al., API defends EPA's use of Clean Air Act waiver authority to set renewable fuel volumes required under the RFS for 2014, 2015 and 2016 at levels below those required by the RFS' founding statute, a 2007 energy law.
EPA on Nov. 30 finalized its rule setting levels of renewable fuel that must be blended into the fuel supply under a consent decree deadline with API and the refining industry, after the agency missed deadlines to finalize annual volumes rules by the statutory deadline of Nov. 30 of the preceding year.
While the 2014 volumes simply matched actual renewable fuel consumption after the fact, EPA tempered its volumes requirements for 2015 and 2016 because of the “blendwall” -- the point at which no more renewable fuel can be blended into the fuel supply given vehicle and fueling infrastructure constraints.
The oil sector has long warned that EPA cannot set fuel volumes higher than the blendwall without causing fuel prices to spike, but ethanol proponents say the blendwall is the artificial creation of the oil industry itself, which they say intentionally limits sales of biofuels through its contractual arrangements with fuel retailers.
The agency cited “inadequate domestic supply” as the legal justification for its waiver allowing lower fuel volumes than required by statute. However, ethanol groups say this is unlawful, as “supply” of corn ethanol is abundant, and the real issue is distribution bottlenecks, and filed suit over the rule.
In its motion to intervene, API notes its earlier comments on the RFS rule, which said, “Employment of the general waiver authority was necessary . . . due to severe limitations, known as the 'E10 Blendwall,' on increasing the amount of renewable fuel in the fuel supply above 10 percent.” E10 is the most common blend of ethanol in U.S. fuel.
Oil sector and refining companies have a vital interest in the case that justifies API's intervention in the suit to help EPA defend the RFS, the group says. Should EPA be forced to revise upward its fuel volumes requirements for compliance years 2014 and 2015, companies would suddenly be faced with a potential shortfall of renewable identification numbers (RINs) -- tradable compliance credits -- with which to comply, API says.
“For those years, API’s member companies no longer have the ability to adjust their operations to ensure that they have a sufficient number of RINs on hand to cover their compliance obligations. As for 2016, API members have a strong interest in ensuring that EPA’s percentage standards comply with the Act’s requirements and reflect an accurate assessment of market conditions,” the motion says.
In addition, “API and its member companies also seek to intervene given the precedent that may be set in this case regarding EPA’s general and cellulosic-biofuel waiver authorities.” API has already criticized EPA for setting renewable fuel volumes for 2016 that will breach the blendwall.
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Federal Agencies to Review Calif. Offshore Fracking Impacts
Jan 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Federal agencies will consider the environmental impacts of oil drilling permits issued for hydraulic fracturing and other well stimulation activities along the California coast under a proposed settlement announced Jan. 29 (Envtl. Def. Ctr. v. Bureau of Safety & Envtl. Enforcement, C.D. Cal., No. 2:14-cv-09281, settlement agreement, 1/29/16).
If approved by a federal court, the agreement would resolve a lawsuit a Santa Barbara-based environmental group filed against the Interior Department's Bureau of Safety and Environmental Enforcement and the Bureau of Ocean Energy Management in 2014, challenging 51 offshore drilling permits (234 DEN A-12, 12/5/14).
Under the settlement with the Environmental Defense Center, the agencies would have until May 28 to issue a “programmatic environmental assessment” to address the potential impacts of offshore well stimulation activities in federal waters off California. Other terms of the agreement would require the agencies to halt approval of all drilling permits for well stimulation activities until the review is completed and to conduct a more “robust” review if the initial assessment shows the potential for significant environmental impacts. The agreement also would require the Bureau of Safety and Environmental Enforcement to develop an electronic filing and public notification website for permit applications.
“This settlement is an important first step in addressing the use of dangerous well stimulation techniques including fracking and acidizing from oil platforms located off the California coastline,” Environmental Defense Center Attorney Brian Segee said in a written statement. “These practices are currently being conducted under decades old plans with out-of-date or nonexistent environmental analysis, and this settlement will finally force the federal government to consider their impacts in detail with a transparent process open to public review and input.”
Filed in the U.S. District Court for the Central District of California, the agreement aims to resolve claims accusing the two agencies of violating the National Environmental Policy Act in approving 19 applications for permits to drill and 32 applications for permits to modify in Outer Continental Shelf waters off of Ventura and Santa Barbara counties using a categorical exclusion.
The lawsuit grew out of investigations by the Environmental Defense Center and news organizations into offshore well stimulation activities off California's coast.
Documents obtained through Freedom of Information Act requests revealed the agencies “were largely unaware of offshore fracking” and had little knowledge about where and how often the practice had been used, the nonprofit law group said in announcing the settlement.
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California Bill Aims to Limit Activities at L.A. Gas Field
Jan 29, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Emergency legislation to impose an immediate moratorium on new natural gas injections at Southern California Gas Co.'s underground storage field near Los Angeles is expected to move forward Feb. 2.
S.B. 380, which the California Senate approved Jan. 28, heads to the Assembly for consideration.
The bill aims to address the concerns about continued operation of the storage facility where a damaged well has been leaking since Oct. 23, state Sen. Fran Pavley (D), who introduced the bill, said in a written statement issued after the unanimous vote. Pavley represents residents in the Porter Ranch community near the 3,600-acre field.
“My constituents have been on the receiving end of a natural disaster for the last three months,” Pavley said. “The uncontrolled leak of natural gas from the Aliso Canyon facility is a public health and climate emergency.”
SoCalGas, a subsidiary of Sempra Energy, said in a Jan. 27 incident report its project to stop the leak, which involves drilling a relief well and capping the damaged well, is in its final phase. The project is expected to be completed by the end of February, the utility said.
Bill Provisions
Under the bill, the moratorium would remain in effect until state oil and gas regulators assess the integrity of the wells at the facility, evaluate the risk of failure of other wells and require wells deemed to be at risk of failure be plugged or capped.
Other key provisions in S.B. 380 would restrict the withdrawal of gas from 1950s-era wells at the field unless they needed to respond to the leak or ensure energy reliability and require the California Public Utilities Commission to evaluate whether the Aliso Canyon facility can be shut down or used minimally without affecting regional energy reliability.
With 115 wells, the Aliso Canyon storage field serves the entire Los Angeles basin.
No New Injections Since October
“SoCalGas stopped injections into the Aliso Canyon storage facility in late October and last week, at the direction of the California Public Utilities Commission; withdrawals were also stopped to maintain a minimum level of storage,” Sempra spokeswoman Kristine Lloyd told Bloomberg BNA in a Jan. 29 e-mail. “Minimum storage levels are intended to address reliability requirements so that residential, commercial and industrial customers are not left without heat and hot water and electricity outages do not occur.”
The utility began implementing a storage integrity management program for all wells at the facility, “well in advance of discovering” the leak, Lloyd said. “We have accelerated our inspection of 18 wells at Aliso of similar vintage of the leaking well, and that process is ongoing.”
Bill Among Many Responses
S.B. 380 is among several recent responses to the ongoing leak. On Jan. 6, Gov. Jerry Brown (D) declared an emergency and directed state and local agencies to respond to the leak. The South Coast Air Quality Management District's hearing approved an order Jan. 23 requiring SoCalGas to take immediate steps to contain and stop the leak (16 DEN A-10, 1/26/16).
Sens. Barbara Boxer (D-Calif.) and Dianne Feinstein (D-Calif.) announced Jan. 29 plans to introduce an amendment to pending energy legislation that would require a federal review of the cause and response to the leak.
Health Impacts
Residents in Porter Ranch and other communities near the gas field want the facility permanently shut down. Several have reported ill-effects from the leak including headaches, nosebleeds, dizziness and vomiting. At public meetings, many have voiced concerns about the long-term impacts of exposure to chemicals in the leaking natural gas.
More than a dozen lawsuits have been filed against SoCalGas, including a Jan. 25 complaint by the South Coast Air Quality Management District seeking civil penalties (18 DEN A-3, 1/28/16).
SoCalGas has relocated about 2,500 residents and is working to move another 1,600, Pavley said. Schools have been closed and students transferred, she said.
Data collected by the California Air Resources Board estimated that as of Jan. 26, 2.2 million metric tons of greenhouse gas emissions have escaped from the damaging well. An analysis of the emissions by the state's Office of Environmental Health Hazard Assessment showed odorants used in natural gas can cause the ill effects residents have reported, but the levels of chemicals in the gas being released pose no long-term acute health impacts.
“Residents of Porter Ranch and their neighbors desperately need to know the remaining natural gas wells are safe once the current leak is stopped,” State Sen. Bob Huff (R), a co-author of the bill, said in a Jan. 28 written statement. “The legislature should act now to ensure the Aliso Canyon leak is fixed and residents can come home to a safe environment.
S.B. 380 is an “urgency” bill, requiring two-thirds majority support in both houses. The Assembly is expected to take up the bill when it reconvenes Feb. 2. If passed, the measure would take effect once signed by the governor.
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Senate Dems Ask EPA To Do More On Methane Emissions
Jan 29, 2016 | The Hill - E2 Wire
By Timothy Cama
A group of Senate Democrats is asking the Environmental Protection Agency (EPA) to regulate methane leaks from existing oil and natural gas wells.
The 21 senators, led by Sens. Brian Schatz (Hawaii) and Sheldon Whitehouse (R.I.), said the EPA didn’t go far enough last year when it proposed new rules to cut down on methane leaks but only for wells drilled after the final regulation is written.“Moving forward with this rulemaking would sustain our international leadership on this issue and put forward a precedent that other countries can follow, much as they have done with our current methane commitment,” the senators wrote in a Thursday letter to the EPA.
Covering existing wells would have to come through a separate regulation, which the administration should undertake, the lawmakers said.
In addition to new wells, the Democrats want the EPA to look at some storage vessels, compressors, controllers and other equipment that was left out of the proposal.
“These sources are associated with significant methane emissions, and low cost controls exist for all of them. We therefore urge EPA to cover them in the final rule,” they said.
Methane, the main component in natural gas, has about 25 times the global warming power of carbon dioxide, although it does not stay in the atmosphere for long.
The EPA’s rules are part of a suite of methane efforts from the Obama administration, including rules specifically for wells in federal land and voluntary programs to cut methane in agriculture.
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EPA, States Work on Single Emissions Reporting Portal
Feb 1, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is continuing to work with states on a single web portal to report all air pollution emissions from regulated industrial facilities, officials said during a Jan. 29 webinar sponsored by the Environmental Council of the States.
The Combined Air Emissions Reporting (CAER) project is intended to create a single portal where industrial facilities can report their emissions for the Toxic Release Inventory, greenhouse gas reporting rule, national emissions inventory and the Compliance and Emissions Data Reporting Interface, which is used to track compliance with the EPA's new source performance standards and national emissions standards for hazardous air pollutants. The goal is to reduce emissions reporting burdens for industries and provide a single, shareable database for the EPA and states to use.
The hope is the new portal would allow industrial facilities to enter their emissions data once and have that information parcelled out automatically to the various compliance databases rather than having the facilities enter their data for each program individually.
“It's not pulling from a single database but pulling from several different reporting streams and trying to make it make sense,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said during the webinar.
A 2015 return on investment analysis found the project would have “positive but uncertain savings” for both states and industries by reducing reporting burdens, Shaw said.
Marc Houyoux, from the EPA's Office of Air Quality Planning and Standards, who is the agency's lead on the project, said next steps for the project include looking at ways to leverage states' existing reporting systems, how the new portal would interact with those programs, ownership of the data and treatment of confidential business information.
Houyoux said the program could lead to changes in the agency's regulations, but those decisions would be made after consulting with states and gathering additional information.
“Certainly we're not planning on starting with changing rules before we learn what we need about efficiency,” he said.
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Flint Aid Measure Roils Energy Bill Politics
Jan 29, 2016 | PoliticoPro
By Annie Snider and Darren Goode
Senate leaders' plan to pass the first major energy bill in eight years may get swept up in a campaign-season battle over federal aid to the lead-contaminated city of Flint, Mich.
The drinking water crisis in Flint has been snowballing for weeks, heaping criticism on Republican Gov. Rick Snyder for his administration's botched response and pushing the regional chief of the EPA out of her job. Even President Barack Obama has pointed the finger at both poor management and the long-running conservative effort to curb government's regulatory role.
“There is both the immediate combination of incompetence and callousness that led to this particular problem and the broader philosophy that we see in a lot of Republican agendas around the country that this crisis reflects," Obama said at this week's Democratic retreat in Baltimore, according to a source in the room.
For lawmakers from both parties, the urge take political pot shots could undermine the momentum behind the bipartisan energy measure that aims to boost energy efficiency measures, speed LNG export approvals and streamline infrastructure development.
“The next time someone from the other party stands in front of this mic and starts railing against government regulation, I hope you will raise two words to them: Flint, Mich.,” Dick Durbin, the second ranking Senate Democrat, said Wednesday, blaming the situation on lax oversight. “I don’t know how [Republicans] would explain it if they don’t support an amendment to protect children from water that is deadly, poisonous."
Michigan’s two Democratic senators, Debbie Stabenow and Gary Peters, unveiled just such an amendment on Thursday that would seek more than $600 million in federal funding to match state spending for replacing lead service pipes that began leaching the neurotoxin after the city switched water supplies under a Snyder-appointed emergency city manager. The money would also establish a center of excellence on lead exposure, and forgive federal loans made to Flint for drinking water infrastructure.
Such a large relief bill benefiting a single state poses enormous political challenges, likely requiring the support of another 58 senators whose states have their own infrastructure needs. And fights over aid packages for communities hit by natural disasters have turned increasingly contentious in recent years; including the three-month fight that preceded the relief funding for states devastated by Hurricane Sandy in 2012.
Senate GOP leaders are wary of opening a government funding spigot.
“We need to be careful here because while we all have sympathy for what's happened in Flint, this is primarily a local and state responsibility" John Cornyn, the second ranking Senate Republican, told reporters. "And given the fact that we have about $19 trillion in debt, I think it's fair to ask ... do we want to have the federal government replacing all the infrastructure put in place by cities and states all across the country?"
And Cornyn, like other Republicans, suggested federal agencies may also be culpable in the crisis, noting that EPA’s top Midwest official resigned last week.
"We need to be doing oversight and make sure that the Environmental Protection Agency's been doing its job and, if not, the people responsible be held accountable," Cornyn said.
House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah), who derided EPA as “rife with incompetence” and said the regional official’s resignation was “way overdue,” will hold the first hearing on the Flint crisis next week. But he won't call Snyder as a witness, despite a request from Rep. Brenda Lawrence, a top Democrat on the panel who represents Detroit. Instead, the committee will focus on “the operational side of the crisis,” according to a panel spokeswoman. The committee will call EPA's top water official and an agency researcher who raised the alarm internally, as well as the former Flint emergency manager and new top environmental official for the state.
And though Peters and Stabenow appeared wary of fanning the political flames around Flint, Democratic Rep. Dan Kildee, who represents Flint and is a possible 2018 gubernatorial candidate, has been quick to blast Snyder's handling of the situation.
"Stabenow and Peters have a separate agenda from Kildee," said Susan Demas, publisher and editor of Inside Michigan Politics. "They're trying to stay above board, above politics as much as they can."
Kildee, who's clearly advocating for his constituents, also "does have an incentive to call the governor out for being unresponsive and to take him on," Demas said. "I'm not sure that that will be helpful in his cause to solicit money from Congress."
Kildee recently told reporters in the Capitol that even though water infrastructure is a widespread problem, the state's handling of the crisis stands on its own.
"It's really important though to call attention to the Flint case as being clearly distinguishable in that this is not a case of not enough resources, it's not a case of even something as sad but explainable as incompetence," Kildee said. "This is willfully ignoring warning signs because they didn't want to have a public relations problem.”
Even with their more measured rhetoric, Stabenow and Peters have blamed the state for the Flint crisis, and said the governor bungled his response.
“There’s no doubt in my mind that if one of the governor’s supporters in a wealthy part of Michigan called up and said, our water looks like this, it smells, our children are taking baths and getting rashes, people are losing their hair, help us -- I don’t think it would be very long at all before it was fixed,” Stabenow said.
Stabenow will need the help of Republicans to add a Flint aid package to the energy bill, particularly Sen. Lisa Murkowski (R-Alaska), chair of both the Senate Energy and Natural Resources Committee and the appropriations subpanel that covers EPA and water issues.
Stabenow first approached Murkowski in December to include a loan forgiveness provision in the end-of-year spending bill, but that measure would not have cleared the House, Murkowski said. And though she acknowledged the need to address the problem in Flint, the fact that the amendment sought for the energy bill defines the aid as emergency funding — which wouldn't require an offset — isn't likely to fly on her side of the aisle.
“We both know, both leadership would have to agree that this is the approach that you take, and it’s fraught with peril,” Murkowski said. But she added that “there may be certain aspects of what she is proposing that we could include that do not cost and be somewhat helpful.”
Stabenow has said she and Peters are "very flexible in how we do this as long as we accomplish the goals," but she didn't rule out filibustering the energy bill over the issue.
"We feel very strongly that we need to move forward," she said. "We’ve not yet made that decision."
Complicating that picture is the possibility that the GOP-controlled Michigan state Legislature may not be willing to go beyond the $28 million it approved to for the city under an emergency request from Snyder. The governor has said that was just a first step in a larger request he'll soon make in his annual budget proposal. The language of the Democratic amendment would only allow federal funding for the city's infrastructure if it is matched by the state.
"It’s one thing to declare an emergency and a disaster, it’s another to start spending hundreds of millions of dollars," Demas said. "We could be looking at a pretty big showdown over this."
But the Democrats' path on the Flint amendment and the energy bill may not be solely set by the state's two senators. New York Democrat Chuck Schumer, who is next in line to take the top spot in the party's leadership when Harry Reid retires next year, stood next to Stabenow as she unveiled the amendment Thursday, and took a not-so-subtle stab at Republicans while calling for bipartisan support.
"We do need an active government to help people when they need help. There's no substitute here, there’s no private sector that will come in and help. We know that," he said.
And Murkowski, who must carefully manage the push from both parties for votes on a range of politically divisive amendments if her energy bill is to see a presidential signature, was hoping she and Stabenow would find a compromise that kept the political fighting from scuttling the bill.
"I think Sen. Stabenow is genuinely trying to get to a solution," she said. "You can do political posturing all day long but that doesn’t give you safe drinking water or safe water to bathe your child in and that’s where she’s trying to go."
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Jan 30, 2016 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is under fire for its handling of the drinking water crisis in Flint, Mich.
Michigan and its Department of Environmental Qualilty (DEQ) have the primary responsibility to keep Flint’s drinking water safe and free of lead. But critics say the federal agency is asleep at the wheel, not doing enough and not acting quickly to stop the problem from growing out of control.
Flint's lead problems also hit the national spotlight while EPA was still defending itself from the toxic mine waste spill it caused in Colorado in August, another embarrassment for the agency.The controversy and continued finger-pointing over Flint at all levels of government have put the EPA on the defensive, spurring officials to go out of their way to show that they can handle their responsibilities.
Days after EPA Administrator Gina McCarthy defended the agency on Jan. 18, saying it “did its job," Susan Hedman, the agency’s regional official in charge of the Great Lakes area, resigned. The EPA also rolled out a suite of new actions against Flint and Michigan, including tests and an order to immediately fix problems.
But the mess is also bringing attention to the essential problems that can grow from the U.S. model for pollution control, in which the EPA cedes authority to enforce laws to state agencies, while maintaining responsibility for overseeing the state officials.
"It seems they were very slow in revealing information to the public, and they seem to have had some ... ethical obligation to probably say more, even on a preliminary basis,” said David Konisky, an environmental policy professor at Indiana University Bloomington. He added that it’s unlikely the EPA broke the law.
“This reflects a bit of a structural flaw in our environmental protection system, where the EPA delegates its authority to implement these pollution control statutes to the state level, and states have very different attitudes, preferences and agency designs to implement these programs,” he added.
Flint switched to using water from the Flint River in April 2014 as a money-saving measure while the city was being overseen by an emergency manager appointed by Gov. Rick Snyder (R).
The city quickly started facing water quality problems, which the state repeatedly downplayed. But the lead problem arose because the city did not use the proper water treatment to prevent old lead pipes from corroding, leading to the potential poisoning of the city’s 100,000 residents.
Early in 2015, Miguel Del Toral, an EPA water regulation officer, started to tell Hedman and others about the lead problems, and he sent a formal draft memo in June that was leaked to the press.
Hedmen quickly and repeatedly pressed state officials to take action. But she did not go public with the findings or take action herself, instead seeking a legal opinion on the matter that was not finished until November, according to the Detroit News.
Now, legislation from Michigan’s Democratic Sens. Gary Peters and Debbie Stabenow and Rep. Dan Kildee would require public disclosure of such findings if the state does not act.
“The people have a right to know, and we’re going to clarify that in this amendment,” Peters told reporters recently.
The EPA’s critics are eager to bring to light the agency’s failings in Flint.
“It appears as if this crisis was caused by a failure of management at the local, state, and federal level,” Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, said in a statement.
The House Oversight Committee is holding a Feb. 3 hearing focused on the EPA’s role in the matter, where it will hear from Del Toral and from Joel Beauvais, the agency’s top official for water, as well as state representatives.
Oversight Chairman Jason Chaffetz (R-Utah), in a letter to McCarthy about his investigation, said Hedman’s resignation “raises serious questions about EPA’s response to the Flint crisis.”
Chaffetz previously probed Hedman for allegedly retaliating against employees investigating sexual harassment.
Snyder also hired crisis communications firm Mercury to point journalists toward coverage critical of the federal government’s actions in Flint.
But the EPA said it has done what’s required under the Safe Drinking Water Act, and the failings are the responsibility of others.
“Under the Safe Drinking Water Act, the state of Michigan was responsible for implementing the regulations to protect their residents’ drinking water,” an EPA spokeswoman said.
“While EPA worked within the framework of the law to repeatedly and urgently communicate the steps the state needed to take to properly treat its water, those necessary actions were not taken as quickly as they should have been.”
Following Hedman’s resignation, the EPA ordered the city and state to immediately remedy the problem, and implemented a testing program of its own. It also sent an agency-wide memo urging staff to come forward with public health concerns that aren’t being remedied.
Democrats are taking the EPA’s side in the finger-pointing.
“The EPA warned and was regularly communicating with the state of Michigan. The state of Michigan dropped the ball,” said Peters.
“The main thing to understand is this is a state responsibility,” said Sen. Tom Udall (N.M.), the top Democrat on the appropriations panel in charge of the EPA’s funding.
“Only when you have a crisis, a complete failure on the part of the state, does EPA actually step in … I think the governor should step up to the plate and offer a solution.”
Stabenow also laid some blame on Republicans.
“The House dramatically cut the Drinking Water State Revolving Loan Fund. We were able, in the Senate, to get that back up, although it was still a cut,” she said.
Konisky, though, predicted that the investigations into the EPA’s handling of Flint will show what many others have: the agency should do more to police states’ enforcement of laws like the Clean Air Act and Clean Water Act.
“The agency is aware of it and has over time tried to make some corrections, but it’s a pretty challenging problem, giving the limited resources of the EPA and the fact that states want to run these programs themselves,” he said.
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