Preview Newsletter
ACC AM Feb 2
-
(ACC Mentioned) BPA, BPS—Is It All BS?
Feb 1, 2016 | Plastics News
By Norbert Sparrow
As PlasticsToday readers know, bisphenol A (BPA) is used in the formulation of polycarbonate and epoxy resins and, as such, is present in a broad range of products, from food packaging to bulletproof law enforcement gear. Some studies have linked exposure to the chemical with health risks, especially in infants, but after considerable review... -
(ACC Mentioned) BPA-Free Plastic Alternatives May Not Be As Safe As You Think
Feb 1, 2016 | Fox 61
Your “BPA-free” plastic product may be no safer than the product it replaced, says a new UCLA study that analyzed the impact of a common BPA alternative on zebra fish embryos. The study joins a small but growing group of similar research sounding the alarm about so called “BPA-free” alternatives. -
Public Interest Groups Step Up Pressure On Toxic Chemical Reform
Feb 1, 2016 | The Hill - E2 Wire
By Lydia Wheeler
Public interest groups are pushing lawmakers to pull the best provisions from House and Senate bills reforming the nation’s toxic chemical laws. In a letter Monday to the key lawmakers negotiating a deal, 125 groups led by Safer Chemicals, Healthy Families offered recommendations for how to combine the Frank R. Lautenberg Chemical Safety... -
Opponents Of Pending TSCA Bills Push For Best Of Both Plans
Feb 1, 2016 | E&E News PM
By Sam Pearson
Advocacy groups are making their final pitches to lawmakers working to close the deal on a broad rewrite of the nation's chemicals policy. In a letter to House and Senate lawmakers, advocacy groups that have so far declined to support S. 697 and a competing House version, H.R. 2576, laid out a series of changes needed to win their support. -
Very Little, Very Late: EPA Still Lacks Data On Safety Of Widely Used Flame Retardant Chemicals
Feb 1, 2016 | Environmental Defense Fund
By Lindsay McCormick
Last summer, EPA released a Problem Formulation and Data Needs Assessment describing the inadequacy of data available to conduct risk assessments on a group of brominated phthalate flame retardants – two of which are major components in widely used Firemaster products. -
New York Officials Press EPA To Set National Water Standard For PFOA
Feb 1, 2016 | InsideEPA
By Suzanne Yohannan
High-level New York state officials are urging EPA Administrator Gina McCarthy to address the threat of the persistent chemical perfluorooctanoic acid (PFOA) in drinking water across the country by expeditiously developing an enforceable drinking water standard, marking what appears to be the first time a state has sought national... -
State Oversight, Cybersecurity Among EPA 2016 Challenges
Feb 2, 2016 | BNA Daily Environment Report
By Anthony Adragna
Improving oversight of states tasked with implementing environmental programs, enhancing information security to fight cybersecurity threats and fully rooting out employee misconduct or fraud are among the top challenges for the Environmental Protection Agency in fiscal year 2016, the agency's inspector general said. -
EPA Holds Chemical Data Rule Webinar Feb. 4
Feb 2, 2016 | BNA Daily Environment Report
The Environmental Protection Agency will discuss chemical manufacturers' Chemical Data Reporting (CDR) rule obligations during a Feb. 4 webinar scheduled for 1 p.m.–3 p.m. Eastern Standard Time. The session will focus only on the reporting requirements; future sessions will walk submitters through using the 2016 CDR electronic... -
Data, Inspection Requirements Draw Debate in Pipeline Rule
Feb 2, 2016 | BNA Daily Environment Report
By Rachel Leven
A federal advisory committee made up of public, state and industry representatives Feb. 1 largely reached compromises to offer advice for the Transportation Department on a hazardous liquid pipeline rule, including on extreme weather-related requirements. -
Engineer in Philadelphia Amtrak Derailment Recalls ‘Foggy’ Memory
Feb 1, 2016 | The Washington Post
By Ashley Halsey III, Michael Laris and Lori Aratani
The engineer in the Amtrak derailment that killed eight people and injured more than 200 in Philadelphia last year described a surreal experience as the train careered around a curve at twice the authorized speed before it derailed, the National Transportation Safety Board said in documents released Monday. -
(ACC Mentioned) EPA To Set New Regulation On Hard Rock Mining
Feb 1, 2016 | The Montana Standard
By Susan Dunlap
The Environmental Protection Agency plans to propose new rules for some hard rock mines to ensure adequate cleanups when the mines shut down. The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling Friday requiring EPA to provide a timeline and decide whether it will create new regulation. -
EPA Advisers Seek Clarity in Draft Fracking Report
Feb 2, 2016 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency should clarify and better explain its draft conclusion that it found no evidence of hydraulic fracturing having any “widespread, systemic impacts” on drinking water, a panel of science advisers said Feb. 1. Members of the EPA Science Advisory Board panel discussing the subject by teleconference... -
Offshore Drilling Rule Would Stifle Gulf Production: Report
Feb 2, 2016 | BNA Daily Environment Report
By Jennifer A. Dlouhy
A plan by the Obama administration to tighten mandates for offshore drilling would cost $11 billion in industry investment, discourage companies from exploring in the Gulf of Mexico and stifle U.S. energy production, according to an industry-backed analysis. The assessment, conducted by Wood Mackenzie for the Gulf Economic Survival Team... -
Feds To Review Environmental Impact Of Offshore Fracking
Feb 1, 2016 | The Hill - E2 Wire
By Devin Henry
The federal government is agreeing to study the environmental impact of offshore oil fracking before approving more operations off the coast of California. In a legal filing released late Friday, the Interior Department agreed to study “the potential environmental impacts of certain well-stimulation practices on the Pacific [Outer Continental Shelf]... -
Stay The Course And Halt The Clock On The EPA's Clean Power Plan
Feb 1, 2016 | The Hill - Contributors
By Kathleen Hartnett White
The legal battles over the Environment Protection Agency's (EPA) Clean Power Plan (CPP), the most sweeping regulation in the agency's history, have begun. While the EPA's crusade against carbon already leads to mounting bankruptcies and job losses before the effective dates of the rule, the District of Columbia Circuit ... -
High Court's FERC Ruling Good for EPA, Analysts Say
Feb 2, 2016 | BNA Daily Environment Report
By Rebecca Wilhelm
The Federal Energy Regulatory Commission's recent victory before the U.S. Supreme Court bodes well for the Environmental Protection Agency when the justices eventually consider substantive challenges to the Clean Power Plan, legal analysts told Bloomberg BNA. -
GOP Looks For Path Forward On Energy Bill Amendments
Feb 1, 2016 | The Hill - E2 Wire
By Devin Henry
Senators have filed nearly 200 amendments to the energy policy rewrite bill currently being considered on the Senate floor, and GOP leaders say they are “redoubling” their efforts to work through the list this week. Lawmakers approved 11 amendments to the bill last week, and Sen. Lisa Murkowski (R-Alaska), a bill cosponsor and ... -
Senate Energy Bill Looks Bipartisan for Now, But Can That Last?
Feb 2, 2016 | Bloomberg Politics
By Kathleen Miller
The sharply divided U.S. Senate has a real shot at doing something unexpected -- passing bipartisan energy legislation in an election year. It won’t happen though, unless both parties can resist the temptation to lard up the bill with more partisan goodies. Already, Democrats have talked about amendments relating to Puerto Rico’s... -
Petitioners Outline Challenges to EPA Brick Standards
Feb 2, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and industry petitioners intend to challenge the methodology used by the Environmental Protection Agency in setting hazardous air pollutant emissions limits for brick and structural clay production facilities (Sierra Club v. EPA, D.C. Cir., No. 15-1487, statements of issues filed 1/28/16). -
Senate to Vote on Energy Efficiency, National Monuments
Feb 2, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate was slated to vote Feb. 2 on a pair of amendments that would create an energy efficiency resource standard for electric power and gas utilities and limit the president's ability to create national monuments as it continued work on a broad energy bill (S. 2012). -
Senate To Vote On Monuments, Efficiency Standard
Feb 2, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
The Senate today will vote on a Republican measure limiting the president's authority to set national monuments and a Democratic proposal to set national energy efficiency standards, as the chamber tries to finish work on a bipartisan energy package by week's end. Senators will vote this afternoon on an amendment... -
Biomass Sector Punts On Combining EPA GHG Rule Suits
Feb 1, 2016 | InsideEPA
The biomass industry is asking a federal appellate court to determine whether its challenges to two EPA rules -- one limiting greenhouse gases (GHGs) at new power plants and a second aimed at existing facilities -- should be consolidated, after the agency agreed with its request that the claims be held in abeyance but opposed combining... -
Obama's Hidden Climate Leverage
Feb 1, 2016 | Politico
By Brian Potts
Over the past six months, President Barack Obama has cemented his climate legacy with the release of the Environmental Protection Agency’s Clean Power Plan and the execution of the Paris climate agreement. But, as even he admits, neither of those policies will be enough to avert the worst effects of climate change. -
Post-Flint, Demand for More EPA Water Protections May Be Difficult for Some States to Swallow
Feb 1, 2016 | Roll Call
By Ed Felker
The contamination crisis in Flint, Mich., has thrown a harsh national spotlight on the problem of lead in drinking water, especially in poor and minority communities. Yet the issue is hardly new — Washington, D.C., had its own infamous lead scandal in 2004, among other communities that have seen lead spikes. -
What Effect Will The Next Energy Bill Have On Climate? Don't Ask Congress
Feb 2, 2016 | Environmental Defense Fund
By Keith Gaby
Congress is required to determine if a bill they’re considering adds to the federal deficit before they vote on it. The reason is simple: Our lawmakers should at least know if they’re adding more debt for the next generation to pay off. The same should be true for climate change. When Congress votes on an energy bill, they should first know...
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News
Energy and Environment News
Full Text of Stories Below
-
(ACC Mentioned) BPA, BPS—Is It All BS?
Feb 1, 2016 | Plastics News
By Norbert Sparrow
As PlasticsToday readers know, bisphenol A (BPA) is used in the formulation of polycarbonate and epoxy resins and, as such, is present in a broad range of products, from food packaging to bulletproof law enforcement gear. Some studies have linked exposure to the chemical with health risks, especially in infants, but after considerable review of scientific evidence, FDA, the European Food Safety Authority and other government agencies have declared BPA to be safe at current exposure levels. The court of public opinion was not swayed, however, and many companies introduced BPA-free plastic products to gain a marketing advantage.
Here's the rub: Bisphenol S (BPS), which is commonly used to replace BPA, has also been linked to health risks, most recently in a study led by the University of California Los Angeles, (UCLA). The study, which was published in the Feb. 1, 2016, edition of the journal Endocrinology, is the first to examine the effects of BPA and BPS on brain cells and genes that control the growth and function of organs involved in reproduction. It found that BPS speeds up embryonic development and disrupts the reproductive system in zebrafish.
Calling it the aquatic version of the canary in the coal mine, Nancy Wayne, the study's senior author, a reproductive endocrinologist and professor of physiology at the David Geffen School of Medicine at UCLA, and her colleagues found that when zebrafish were exposed to either BPA or BPS at low levels—equivalent to the traces found in polluted river waters—their physiology at the embryonic stage changed in as quickly as 25 hours. "Egg-hatching time accelerated, leading to premature birth," said Wayne, who is also UCLA's Associate Vice Chancellor for Research. "The embryos developed much faster than normal in the presence of BPA or BPS."
"Exposure to low levels of BPA had a significant impact on the embryos' development of brain cells that control reproduction and the genes that control reproduction later in life," Wayne said. "We saw many of these same effects with BPS found in BPA-free products. BPS is not harmless."
Researchers have proposed that endocrine-disrupting chemicals such as BPA and BPS may be contributing to the rise in premature human births and early onset of puberty over the past couple of decades in the United States.
Previous studies also have questioned the safety of BPS. In January 2015, PlasticsToday reported on research conducted at the University of Calgary in Canada that found that "BPA and BPS caused alterations in brain development leading to hyperactivity in zebrafish."
In an abundance of caution, the use of BPA was banned in baby bottles in the European Union in 2011, and FDA has banned its use in baby bottles and sippy cups. However, in "Questions and Answers on Bisphenol A (BPA) Use in Food Contact Applications" on the FDA website, the agency unequivocally states that BPA is safe "for the currently approved uses in food containers and packaging."
Regardless, the damage has been done as far as public opinion is concerned, and BPA free has become a clarion call for the anti-plastics crowd and the worried well.
The irony is that the remedy—BPS, in this case—may be no better than the perceived problem posed by BPA.
The article describing Wayne's study on the UCLA website notes that she has discarded all plastic containers in her household since completing a study on BPA in 2008 and replaced them with glass.
That's one option, certainly. But it's worth remembering, as the American Chemistry Council has noted, "Plastic food packaging, whether made with BPA or other materials, continues to deliver real benefits to millions of consumers throughout the world. In fact, it's widely known that plastic packaging protects food to help keep people safe and healthy."
-
(ACC Mentioned) BPA-Free Plastic Alternatives May Not Be As Safe As You Think
Feb 1, 2016 | Fox 61
Your “BPA-free” plastic product may be no safer than the product it replaced, says a new UCLA study that analyzed the impact of a common BPA alternative on zebra fish embryos. The study joins a small but growing group of similar research sounding the alarm about so called “BPA-free” alternatives.
“Our findings are frightening and important,” said senior author and reproductive endocrinologist Nancy Wayne.
After decades of animal research linked BPA (Bisphenol A), a known endocrine disruptor, to problems with brain and reproductive development, early puberty and a rise in breast and prostate cancer, many manufacturers stopped using the chemical to harden plastics, replacing it with “BPA-free” alternatives. The most common replacement is BPS (Bisphenol S), said Wayne.
Wayne and her colleagues exposed zebrafish to low levels of both BPA and BPS, and looked at the impact of the chemicals on genes and brain cells that control reproduction. Zebrafish have often been used to study the impact of plastic additives because their transparent embryos allow scientists to see and monitor cell growth.
“Our research showed that low levels of BPS had a similar impact on the embryo as BPA,” Wayne told CNN. “In the presence of either BPA or BPS, embryonic development was accelerated. Additionally, BPA caused premature birth.”
In addition to the effect on estrogen, the study also found both BPA and BPS affected the thyroid hormone system. “Because of thyroid hormone’s important influence on brain development during gestation,” said Wayne, “our work holds important implications for general embryonic and fetal development, including in humans.”
What items are approved to have BPA and BPS in them?
The American Chemical Council, which represents BPA manufacturers, disagreed with the UCLA study’s findings about BPA. “Many government bodies around the world have evaluated the scientific evidence on BPA and have clearly stated that BPA is safe for use,” the ACC said in a statement provided to CNN. “For example, the U.S. Food and Drug Administration (FDA) responded recently to the question, ‘Is BPA safe?’ with one unambiguous word: ‘Yes.’ In comparison, the results of this new study on zebrafish provide little or no meaningful information to assess the safety of BPA.”
In 2012, the FDA banned the use of BPA in all baby bottles, sippy cups and infant formula packaging because the manufacturers had already dropped BPA in favor of “safer” alternatives. The agency says it’s continuing “in-depth studies to answer key questions and clarify uncertainties about BPA” in conjunction with the National Toxicology Program. The latest review reported by the FDA looked at more than 300 studies published between November 2009, and July 2013.
BPA is still available in many consumer products such as water bottles, food-storage containers and plastic tableware, as well as contact lenses, eyeglass lenses, compact discs, water-supply pipes, and some dental sealants and composites.
According to the Breast Cancer Fund, BPS has been found in “things printed quickly and at high heats,” such as body wash, hair care products, makeup, lotions and toothpaste, as well as some paper products such as flyers, tickets, mailing envelopes, airplane boarding passes and thermal receipts.
The Breast Cancer Fund recommends that consumers wishing to limit exposure to possible toxins in BPA, BPS and other alternatives use glass, stainless steel and food safe ceramic containers for food and water storage. They stress that it’s not safe to microwave in plastic. Other suggestions include using gloves to handle thermal paper receipts, and researching canned goods to find those that no longer use plastic liners.
BPS research growing
In a 2013 study, Texas researchers found that as little as one part per trillion of BPS could interfere with the normal functioning of a cell, in some cases leading to cell death. Another study of zebrafish, out of Canada, found BPA accelerated neural cell growth by 180 percent for fish exposed to extremely low levels; it was even worse for BPS — neural growth exploded 240 percent. As adults, the fish exposed to both chemicals showed significant signs of hyperactivity.
Another study, this time in rats, found BPS caused heart arrhythmia when given in doses equivalent to those humans usually experience. In a press release, study author Hong-Sheng Wang, said, “Our findings call into question the safety of BPA-free products containing BPS.”
“It’s all pointing in the same direction: BPS is not harmless,” said Wayne about the results of her study in connection with prior research. “Consumers should be cautious about the assumption that ‘BPA-free’ means a product is safe.”
“This is a classic case of ‘regrettable substitution’ in which the replacement chemical is as toxic as the chemical it was replacing,” said Sharima Rasanayagam, director of science for the Breast Cancer Fund, which tracks environmental causes of breast cancer.
“The lack of transparency regarding the identity and safety of the chemicals used as BPA replacements makes it very difficult to assess the overall safety of the alternative,” said Rasanayagam. “It’s like jumping from the frying pan into the fire.”
-
Public Interest Groups Step Up Pressure On Toxic Chemical Reform
Feb 1, 2016 | The Hill - E2 Wire
By Lydia Wheeler
Public interest groups are pushing lawmakers to pull the best provisions from House and Senate bills reforming the nation’s toxic chemical laws.
In a letter Monday to the key lawmakers negotiating a deal, 125 groups led by Safer Chemicals, Healthy Families offered recommendations for how to combine the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which passed the Senate last month, and the TSCA Modernization Act of 2015, which passed the House in June.
“In a Washington frequently paralyzed by gridlock and litigation, a bill focused on TSCA’s biggest shortcomings has the best chance of succeeding in implementation,” the groups said in their letter to eight lawmakers, including Sens. Jim Inhofe (R-Okla.) and Barbara Boxer (D-Calif.), and Reps. Frank Upton (R-Mich.) and John Shimkus (R-Ill.).
The final legislation that passes Congress, they said, should include the Senate bill’s clear requirement to protect the public and its fee provision to generate $25 million annually for the Environmental Protection Agency, as well as the House bill’s call for expedited actions on Persistent Bioaccumulative Toxic, or PBT chemicals and asbestos.
The groups, which include the Asbestos Disease Awareness Organization, Public Citizen, Earthjustice, the National Medical Association, said the final bill should not place new hurdles on the EPA.
“Requirements for new policies and guidance should be minimized and a costly and time-intensive inventory update should also be left off the final bill,” their letter said.
-
Opponents Of Pending TSCA Bills Push For Best Of Both Plans
Feb 1, 2016 | E&E News PM
By Sam Pearson
Advocacy groups are making their final pitches to lawmakers working to close the deal on a broad rewrite of the nation's chemicals policy.
In a letter to House and Senate lawmakers, advocacy groups that have so far declined to support S. 697 and a competing House version, H.R. 2576, laid out a series of changes needed to win their support.
"Congress can reconcile the two bills in a way that allays those concerns, provides clear progress for public health and the environment and enjoys broad public support," said the letter, which was signed by Safer Chemicals, Healthy Families; the Natural Resources Defense Council; the Sierra Club; and more than 100 other groups.
The groups today sent the letter to Senate Environment and Public Works Chairman James Inhofe (R-Okla.), ranking member Barbara Boxer (D-Calif.), and Sens. Mike Rounds (R-S.D.) and Ed Markey (D-Mass.), as well as Energy and Commerce Chairman Fred Upton (R-Mich.), ranking member Frank Pallone (D-N.J.), and Reps. John Shimkus (R-Ill.) and Paul Tonko (D-N.Y.).
Lawmakers are said to be engaged in discussions on merging the two plans. The Senate bill makes broader changes to existing law, but some health advocates have warned the more limited House version could be preferable because it would modify only the worst failings of existing law. At the same time, advocates want to keep some parts of the Senate bill they see as beneficial.
Attorneys general from states that have previously criticized aspects of the proposals echoed some of the complaints in a letter last week (Greenwire, Jan. 22).
At the same time, it's not clear whether congressional Republicans and industry groups will go along with the approach.
Lawmakers have said they would like to finish work on the legislation early this year and send a bill to President Obama.
Among the groups' desired provisions are maintaining the Senate bill's language that would prevent costs from being considered in decisions about evaluating a chemical's health impacts. The final bill also should require at least 10 U.S. EPA-initiated chemical reviews per year, the groups wrote, and force expedited action on persistent bioaccumulative toxins, or PBTs, and asbestos -- something both bills now include, though with slightly different language.
The groups warned that provisions in the Senate bill that would create what they called "new limitations" on how EPA can issue significant new use rules for new chemicals should also be left out, among other changes.
The letter also decried a provision in the Senate bill that would require EPA to check how many chemicals are used in the United States as "costly and time-intensive."
Industry and environmental groups that support the Senate bill have defended the reset of what's known as the Toxic Substances Control Act inventory as a crucial transparency measure (Greenwire, Sept. 24, 2015).
Excising these kind of provisions will produce "a bill focused on TSCA's biggest shortcomings," the groups argued.
-
Very Little, Very Late: EPA Still Lacks Data On Safety Of Widely Used Flame Retardant Chemicals
Feb 1, 2016 | Environmental Defense Fund
By Lindsay McCormick
Last summer, EPA released a Problem Formulation and Data Needs Assessment describing the inadequacy of data available to conduct risk assessments on a group of brominated phthalate flame retardants – two of which are major components in widely used Firemaster products.
This is the first of two blog posts on the comments EDF recently submitted to EPA on this document. In this post, we discuss the growing public health and environmental concerns over use of Firemaster products and the recommendations we made to EPA on steps it needs to promptly take to address these concerns. In our second post, we’ll lay out our serious concerns about the lack of transparency, limited data access, and allowance of unwarranted confidentiality claims that our review of EPA’s document brought to light.
First, a brief history
In the mid-2000s, Great Lakes Chemicals Corporation (now Chemtura) agreed to phase out production of polybrominated diphenyl ether (PBDE) flame retardants due to mounting evidence of their health effects and their persistence and accumulation in people and the environment. Soon after, the use of the company’s replacement Firemaster products skyrocketed.
The two main components of Firemaster products, 2-Ethylhexyl 2,3,4,5- tetrabromobenzoate (TBB) and bis(2-Ethylhexyl) -3,4,5,6- tetrabromophthalate (TBPH), are high production volume (“HPV”) chemicals – each produced at more than one million pounds annually.
Unfortunately, use of these chemicals rose to such levels – replacing PBDEs in consumer products like polyurethane foam-based furniture and electronics – without sufficient data and review to establish their safety.
-
New York Officials Press EPA To Set National Water Standard For PFOA
Feb 1, 2016 | InsideEPA
By Suzanne Yohannan
High-level New York state officials are urging EPA Administrator Gina McCarthy to address the threat of the persistent chemical perfluorooctanoic acid (PFOA) in drinking water across the country by expeditiously developing an enforceable drinking water standard, marking what appears to be the first time a state has sought national EPA action to address any of the class of chemicals known as perfluorochemicals (PFCs).
The pressure, which stems from concerns over contaminated drinking water in a New York town, comes as New York Gov. Andrew Cuomo (D) Jan. 27 announced a set of sweeping actions to address the contaminant in the Village of Hoosick Falls, saying he will add the site to the state's Superfund list and issue an emergency regulation to classify PFOA as a hazardous substance.
At the same time, EPA released a statement Jan. 28 saying while it develops a lifetime health advisory level for PFOA, it is ratcheting down the level of PFOA in drinking water at the site that it says is safe.
PFCs are a class of extremely persistent, toxic chemicals that have been widely used for various commercial and industrial applications due to their non-stick, water resistant qualities. The chemicals are emerging contaminants but currently not federally regulated, although EPA is in the midst of finalizing risk estimates for chronic drinking water exposures to PFOA and a related PFC -- values that will eventually allow regulators to craft long-term health advisory levels and cleanup requirements at sites with the contaminants.
Currently, EPA has a non-enforceable provisional health advisory of 0.04 parts per billion (ppb), or 400 parts per trillion (ppt), for PFOA to protect against short-term exposures, but that will be replaced by a long-term drinking water health advisory once EPA finalizes it, an EPA fact sheet says. The health advisories act as guidance and are benchmarks used to determine if levels of a chemical in public drinking water sources are safe for consumption, EPA says.
The pressure from the state officials stems from PFOA drinking water and groundwater contamination discovered in Hoosick Falls, located in Rensselaer County, but the state says the matter is not just local, telling McCarthy in a Jan. 14 letter that the "presence of PFOA in drinking water is an emerging nation-wide issue."
In their Jan. 14 letter to McCarthy, New York Department of Environmental Conservation (DEC) Acting Commissioner Basil Seggos and Department of Health (DOH) Commissioner Howard Zucker ask her to "take vigorous action to address the presence of [PFOA] in drinking water and groundwater."
They request the agency lower the 0.04 ppb provisional health advisory for PFOA in order to account for "the most current scientific evidence," and that EPA "act expeditiously to adopt a protective maximum contaminant level (MCL)," or enforceable drinking water standard, for the chemical. The agency is currently not developing an MCL for PFOA.
'Hazardous Substance'
The state officials also press EPA to act quickly to list PFOA as a "hazardous substance" under the Superfund law in order to facilitate cleanup of contaminated groundwater as well as other media, and to consider the remaining uses of the chemical under the Toxic Substances Control Act and curb its use if less toxic options are available, the letter says.
The letter points to ongoing efforts being made by the state to address public and private water systems in the Village of Hoosick Falls and Town of Hoosick that have exceedances of the provisional health advisory level.
But EPA in the Jan. 28 statement says it is recommending that residents in the two towns who have private wells with levels of PFOA tested at greater than 100 ppt not consume their water, and instead obtain free bottled water available nearby. An EPA spokesman says the 100 ppt level is derived from a toxicity value it developed that was peer-reviewed in 2014. She stresses though that the level has not been finalized as a lifetime health advisory.
EPA Region 2 and the state in recent months have been working on the locality's PFOA issue, with Region 2 Administrator Judith Enck addressing residents in the area Jan. 14, and reciting recommendations she made in November that residents not consume the drinking water and that a water treatment system be put in place.
Her prepared remarks to the residents say the agency is giving the contamination issue there a "high priority." In addition, she says that EPA "has begun the process of investigating the potential sources of the pollution and what laws we will use to ensure it is cleaned up," noting that this could be applying the Superfund program, the Safe Drinking Water Act (SDWA) or other federal environmental laws.
But Seggos and Zucker elevate the issue beyond the local level problem, noting PFOA's emergence as a national drinking water contaminant.
They reference a Jan. 10 New York Times article that highlighted several studies indicating the potential pervasiveness of PFOA in drinking water and groundwater that may subject people across the country to the chemical.
"It is imperative that the federal government step forward and use the authority it already holds under federal law to comprehensively address this national issue," the state officials say, noting the state will assist the agency in measures to protect the public health and environment from PFOA.
A DEC spokesman said at press time that the department had not received a response from EPA on its letters to the agency. Letters were sent to both EPA headquarters and the Region 2 office. During the Jan. 14 public meeting in Hoosick Falls, EPA officials "indicated they are moving forward," the spokesman says.
EPA headquarters spokespersons did not respond by press time to questions related to the letter to McCarthy.
PFOA's Prevalence
EPA over the past several years has acknowledged the chemical's prevalence in the environment. And findings in 2011 and 2012 from an independent scientific panel formed as the result of a settlement between PFOA manufacturer DuPont and citizens in a class action suit concluded direct links between human exposure to PFOA and several adverse health effects, including testicular cancer, kidney cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and medically diagnosed high cholesterol. The suit involved claims against DuPont at its Washington Works plant in Parkersburg, WV, plant, which manufactured PFOA.
But the state's pursuit of national attention to the contaminant appears to be the first in which high-level state officials have pressured EPA to take nationwide regulatory action on a PFC, sources say.
A source with the Environmental Working Group, which has long tracked the chemical, says in an email response that the Hoosick Falls situation is "reminiscent of Parkersburg more than a decade ago, when it took a dogged crusade by the lawyer for residents whose water had been poisoned to get the EPA to launch a 'priority' review of PFOA."
"It's now been almost 15 years since EPA learned of the problem, and there's still no enforceable health standard for PFOA or any other PFC in Americans' drinking water," the source says. The source argues that recent research shows EPA's provisional health advisory is "hundreds of times too weak to protect public health."
The source says EPA is continuing to "drag its feet" on developing a final advisory level, or an enforceable drinking water limit.
Another environmental source notes that PFCs, which have been used in fire-fighting foams, among other uses, are frequently arising as an issue at military bases where fire-fighting foam was used. "It's the new perchlorate, or worse," the source says, referring to a chemical used in rocket fuel and munitions that arose as a contaminant at military sites. For instance, EPA last year issued a first-time SDWA administrative order for the Air Force to clean up PFC contamination at the former Pease Air Force Base, NH.
Superfund Listing
Seggos is also pressuring EPA to further investigate the Hoosick Falls contamination and nominate it for inclusion on Superfund's National Priorities List (NPL). A Jan. 14 letter from Seggos to Enck proposes listing the Saint-Gobain Performance Plastics Corporation's plant on McCaffrey Street, Hoosick Falls to the NPL, "where high levels of PFOA in groundwater have been observed." While Saint-Gobain has agreed to pay to filter out PFOA from drinking systems, it is unclear who is responsible for the contamination, the Village of Hoosick Falls says on its website.
In the village, four out of five water samples taken from various locations within the public drinking water system found levels of PFOA at 600 ppt, exceeding the 400 ppt interim health advisory level, according to EPA in a fact sheet. At the Saint-Gobain McCaffrey Street facility, groundwater sampling found levels as high as 18,000 ppt, it says.
Enck told Hoosick Falls Mayor David Borge in late November in a letter that the agency lacks a funding stream to which the locality could apply to address the drinking water problem. Nonetheless, the agency continues to press its recommendations for substituting bottled water until temporary, and then permanent, treatment systems are in place. The temporary system is expected to be operational by the end of February, and the permanent system by October, according to the village's website. An EPA Region 2 spokesman says the recommendations EPA made are for an agreement being negotiated between the village and Saint-Gobain.
The Region 2 spokesman says the agency is gathering and reviewing existing site data, and will conduct an assessment that includes the sampling of groundwater and soil -- including local ballfields -- to determine what other actions are needed. The agency will evaluate the site for listing on the NPL, he says.
Cuomo's Actions
Meanwhile, Cuomo announced Jan. 28 he is taking a series of immediate actions to address the contamination there. Among these are issuing an emergency regulation to classify PFOA as a hazardous substance, giving the state the legal authority to seek state Superfund designation and cleanup using state funds, according to a press release from the governor's office. In addition, the state will classify the Saint-Gobain plant as a state Superfund site, to free up state funding sources for investigation and cleanup. This action will allow access to state funds "much more quickly than waiting for a federal Superfund designation," the release says.
Furthermore, the state DOH will undertake a risk analysis to examine the latest national research in order to develop a drinking water guidance level for PFOA, the release says. DOH will also look at cancer incidences among village residents. And it will offer a PFOA biomonitoring study to area residents to measure PFOA in blood to determine exposure, the state says.
-
State Oversight, Cybersecurity Among EPA 2016 Challenges
Feb 2, 2016 | BNA Daily Environment Report
By Anthony Adragna
Improving oversight of states tasked with implementing environmental programs, enhancing information security to fight cybersecurity threats and fully rooting out employee misconduct or fraud are among the top challenges for the Environmental Protection Agency in fiscal year 2016, the agency's inspector general said.
Other issues and risks to the agency's performance identified by the Office of Inspector General in its annual plan for fiscal year 2016 include:
• ensuring the long-term safety of contaminated sites so they may be redeveloped and reused;
• managing chemical risks under the current framework of the Toxic Substances Control Act; and
• improving the efficiency and effectiveness of the EPA workforce.
“Although this plan provides a framework for activities we intend to carry out in FY 2016, the [Office of Inspector General] often performs unanticipated work based on legislative mandates, congressional inquiries, hotline requests or government-wide reviews,” Inspector General Arthur Elkins wrote.
Collaboration, Efficiency Stressed
Strong collaboration is a key challenge between the EPA and various entities, according to the report, which notes “there is a lack of direct lines of authority (coordination) among and between assistant administrators and regions.”
The efficiency of the EPA's work is another area of concern. The report notes “questions exist as to whether EPA is collecting the right data, of sufficient quality, and is making that data available.”
“Better quality data is needed from multiple data points to ensure consistent and reliable information,” the report concludes.
In addition, the report said the agency should look for ways to streamline its “extremely complex regulatory process” without “compromising its required integrity.” One possible way to do that would be using voluntary incentives to drive compliance.
The Office of Inspector General will continue to focus on the agency's fight against a “culture of complacency” among some managers that it said has allowed for isolated incidents of time and attendance fraud, improper computer usage and poor property management to occur at the EPA.
That “culture of complacency” has led to a series of congressional hearings on management challenges at the agency, including one in July 2015 where witnesses testified that senior EPA management ignored sexual harassment claims in its Region 5 office for years (146 DEN A-7, 7/30/15).
-
EPA Holds Chemical Data Rule Webinar Feb. 4
Feb 2, 2016 | BNA Daily Environment Report
The Environmental Protection Agency will discuss chemical manufacturers' Chemical Data Reporting (CDR) rule obligations during a Feb. 4 webinar scheduled for 1 p.m.–3 p.m. Eastern Standard Time. The session will focus only on the reporting requirements; future sessions will walk submitters through using the 2016 CDR electronic reporting form, the 2016 CDR reporting tool and Central Data Exchange registration, the agency said in a Feb. 1 e-mail announcing the webinar. Individuals and organizations within the U.S. wanting to access the webinar should go to https://epawebconferencing.acms.com/cdr-4feb2016/ or call (844) 438-5791. The conference ID is 42518944. Manufacturers must submit their next CDR reports between June 1 and Sept. 30. For further information, go to http://www.epa.gov/chemical-data-reporting/how-report-under-chemical-data-reporting, send an email to eCDRweb@epa.gov or contact Susan Sharkey at Sharkey.susan@epa.gov or 202/564-8789.
-
Data, Inspection Requirements Draw Debate in Pipeline Rule
Feb 2, 2016 | BNA Daily Environment Report
By Rachel Leven
A federal advisory committee made up of public, state and industry representatives Feb. 1 largely reached compromises to offer advice for the Transportation Department on a hazardous liquid pipeline rule, including on extreme weather-related requirements.
But the federal Liquid Pipeline Advisory Committee struggled to identify a single path forward related to a certain integrity assessment requirement. A data integration deadline also sparked conflict but less stringent advice for the department was passed over public representatives' objections. Amidst these discussions, agency officials emphasized the importance of transparency and debate on these issues.
“I think it's really important to have these conversations publicly,” Jeff Wiese, associate administrator for pipeline safety at the department's Pipeline and Hazardous Materials Safety Administration, said.
The discussion held by the committee is important as PHMSA accepts advice from the committee, despite the agency retaining discretion to not take the advice in the final rule. The committee consistently assessed how industry can best utilize its resources to promote the highest level of safety for pipelines and most thoroughly assess risk.
PHMSA published the proposed hazardous liquid rule (RIN 2137-AE66) in the Federal Register in October (191 DEN A-25, 10/2/15).
The rule, which aims to improve the safety of nearly 200,000 miles of pipelines carrying hazardous liquids including crude oil, addresses issues from repair criteria and timelines to natural-disaster inspection requirements.
Extreme Weather, Inspections
The committee advised PHMSA unanimously to alter a number of parts of its rule, including a requirement that would force pipeline operators to conduct an inspection of a pipeline within 72 hours of an extreme weather event.
For example, the committee advised the agency to loosen the 72-hour requirement, in part by changing the stipulation to direct operators to begin its inspection within 72 hours to allow additional flexibility in case resources are unavailable or conditions are unsafe within that initial time frame.
However, some points proved more difficult to find a consensus on.
Notably, the committee split in a tie vote 5-5 on whether to advise the agency to change its requirement that hazardous liquid lines in “high consequence areas” be able to accommodate within 20 years in-line integrity inspection tools to a 10-year deadline, offering a speedier route to more in-depth inspections. The chair of the committee allowed the tie to stand.
“We don't know if you can go more aggressive in the final than you were in the proposal,” Wiese said, saying the agency would look into it.
Data Integration
Additionally, representatives of the public voted against the committee's advice to PHMSA on data-integration requirements. Those requirements would direct operators to collect specific data and look at them holistically together to identify integrity issues, a step further than current integrity management requirements.
The committee said the agency should allow operators to begin implementing data-integration requirements within one year of the rule being finalized and to complete complying with those requirements within three years. The public representatives had wanted compliance with these requirements within one year of the rule being finalized.
-
Engineer in Philadelphia Amtrak Derailment Recalls ‘Foggy’ Memory
Feb 1, 2016 | The Washington Post
By Ashley Halsey III, Michael Laris and Lori Aratani
The engineer in the Amtrak derailment that killed eight people and injured more than 200 in Philadelphia last year described a surreal experience as the train careered around a curve at twice the authorized speed before it derailed, the National Transportation Safety Board said in documents released Monday.
“The memory from there is very vague,” engineer Brandon Bostian, 32, told investigators in November, six months after the worst Amtrak crash in 22 years. “The only word, and I hesitate to use the word ‘dreamlike’ because it sounds like I was asleep, and I don’t believe that I was asleep at all.”
Instead, Bostian said, he had a “very foggy memory” of what went on.
“The memory doesn’t include much visual memory. I don’t remember hearing much. It was more of a feeling,” he said. “I remember feeling my body lurch to the right, towards the right side of the engine. I remember feeling as though I was going too fast around a curve. In response to that feeling, I put the train brake on.”
At that moment — seconds before the engine and several of the seven cars it was pulling left the tracks — the train was going 106 miles per hour, more than twice the 50 mph limit for the sharp curve to the left, the train’s event recorder indicated.
The NTSB report shows that Bostian was concerned by a report that rocks were being thrown as trains passed through the Philadelphia neighborhood.
“I was a little bit concerned for my safety,” he told investigators.
Bostian tested negative for drugs and alcohol after the crash, and the NTSB said he was not using his cellphone.
The NTSB report ruled out a number of factors that might have caused the train to derail.
“There were no issues with the locomotive, there were no issues with the track, there were no issues with the signals,” said a senior NTSB official who spoke on the condition that he not be named because he said the report should speak for itself.
Bostian spoke with NTSB investigators on two occasions, once shortly after the May derailment and again last fall.
“He was extremely cooperative,” the NTSB official said.
The NTSB report is the second of three that the safety agency will produce on its investigation of the derailment. Last May it issued a brief outline of the facts known at that time, on Monday it provided a detailed examination, and this spring the board will announce its determination of the accident’s probable cause.
“No conclusions about how and why the accident occurred should be drawn from this [report],” the NTSB official said. “There may be some new facts included in [Monday’s report], but nothing that’s really earth-shattering and no smoking guns.”
The report acknowledged a critical fact on which Amtrak, the NTSB and federal regulators had agreed on from the outset: The derailment could have been avoided if an automatic braking system know as positive train control (PTC) had been in place.
Amtrak Train 188 had begun its journey north from Washington’s Union Station at 7:10 p.m. May 12, carrying many passengers of the pin-striped sort who make day trips to conduct business in the nation’s capital. For more than two hours, it moved without incident, making designated stops and carrying 258 people by the time it departed Philadelphia’s 30th Street Station for New York..
Bostian was at the controls as the engine and seven cars rattled across the Schuylkill River bridge and gained speed as it crossed North Philadelphia, first through a gentle curve to the east and heading toward a sharp curve to the north at Frankford Junction.
“You wouldn’t be fooled into thinking the track continued going straight,” he told investigators during the November interview. “Because it’s just a black abyss on the other side of the curve.”
Bostian slammed on the emergency brake as the train hurtled into the northbound turn, but it came too late to keep the train on track. His lawyer said afterward that Bostian had suffered a concussion and had no memory of the few seconds immediately before the wreck.
“Unfortunately, the last memory I have on the way back is approaching and passing the [station] platforms in North Philadelphia,” Bostian told investigators during his initial interview with them last May. “I remember turning on the bell, and the next thing that I remember is when I came to my senses I was standing up in the locomotive cab after the accident.”
He recalled calling for help:
“I got my cellphone out of my bag. I turned it on. When it came on, while it was powering up, I think I got off the engine and walked towards some passengers that I heard. When the phone came on, I turned off airplane mode, and then when it reconnected with the network, I called 911 and I said that the — that a train had derailed. And at the time I did not know what my location was. The 911 operator said that it had been reported,” he said.
Bostian’s memory failure appeared to be substantiated by Joseph Brennan, an Amtrak dispatcher who had boarded the train as a passenger, on his way to work. He described for investigators an encounter with Bostian after the wreck.
“I saw this one guy, he was sitting down on the ground, he was — head was busted up pretty good and everything, but I saw the Amtrak, the badge, the necklace,” Brennan said. “And I saw he had a cellphone in his hand, and I asked him, I said, ‘Listen, I work for Amtrak, too. I’m a dispatcher. Can I use your cellphone?’ ”
After Brennan called home he renewed his conversation with Bostian.
“I had no idea who he was. And when I asked him, I said, ‘Well, what do you do?’ He says, I was the engineer of this train.' And he was pretty shooken up. But he just didn’t really recall anything and was just really upset about everything and I just kind of left it at that.”
The NTSB report explores the fact that another passenger train in the area that night, operated by the commuter rail line SEPTA, had been hit by debris.
“Investigators reviewed the tapes of radio communications of the last 7 minutes before the [Amtrak] accident,” according to the NTSB. “The Amtrak engineer told investigators that he overheard these communications, and also made one radio transmission during this time.”
It was a dramatic scene.
“Something hit our windshield. I don’t know if somebody threw something, or somebody — but our windshield is shattered,” said the SEPTA commuter train engineer at 9:13 p.m.
Then about a minute later: “I just got glass in my face.”
The back-and-forth continued. At 9:18, a dispatcher was in radio contact with the SEPTA engineer about whether the engineer needed medical attention.
Roughly 21/2 minutes later, Amtrak 188 crashed.
When Bostian was interviewed on the scene, he “discussed his concern for the SEPTA engineer,” according to the NTSB.
“The engineer on SEPTA sounded very upset and it sounded like the dispatcher was trying to get clear information as to whether or not he needed medical help,” Bostian said.
Bostian added, however, that “there’s been so many times where I’ve had reports of rocks that I haven’t seen anything, that I felt like it was unlikely that it would impact me.”
But Bostian was worried about his fellow engineer, and aware of how serious glass injuries could be.
“I was really concerned for the SEPTA engineer. I had a coworker in Oakland that had glass impact his eye from hitting a tractor-trailer, and I know how terrible that is,” Bostian said.
-
(ACC Mentioned) EPA To Set New Regulation On Hard Rock Mining
Feb 1, 2016 | The Montana Standard
By Susan Dunlap
The Environmental Protection Agency plans to propose new rules for some hard rock mines to ensure adequate cleanups when the mines shut down.
The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling Friday requiring EPA to provide a timeline and decide whether it will create new regulation. The ruling states the EPA has the ability to decline to create regulation on hard rock mining cleanup, if it chooses to do so.
But an EPA spokeswoman in Washington, DC, told the Standard through email that "EPA is developing a proposed regulation for financial responsibility for certain hard rock mines and mineral processing facilities. EPA is proceeding to issue the hard rock mining proposal and its determination on the other sectors by December 1, 2016, in accordance with the schedule in the (federal court's) order."
The other sectors that could face EPA regulation are chemical manufacturing, petroleum and coal manufacturing and electric power generation and transmission. If those regulations are created and go through, the regulations for the additional sectors won't begin to become finalized until 2020, the court order states.
The proposed regulation is intended to ensure companies that produce hazardous waste can demonstrate adequate funds for cleanup after the companies cease operations.
Currently, the EPA does not regulate hard rock mining or other types of polluting companies for reclamation. The state of Montana, through the Department of Environmental Quality, does.
"Current operations fall under the state," Nikia Greene, EPA project manager for the Butte hill remediation, said.
DEQ sets a bond for hard rock mines when the mines are permitted. In September of last year, DEQ proposed raising the bond it holds on Montana Resources about $5 million to bring the total bond amount to about $57.5 million to cover increased labor, equipment and materials costs. MR did not contest the increase.
Six environmental organizations — the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment — filed a lawsuit against the EPA in 2007 to bring EPA into compliance with its own laws, according to John Robison, public lands director for Idaho Conservation League.
“The Superfund law (created in 1980) had directed EPA to develop these regulations. It’s been decades since then and there’s been no meaningful action taken. After seeing several industries abandon projects, leaving it up to the public (tax dollars) to clean up, we decided to take action,” Robison said.
The lawsuit was settled last year. But Robison said that after the settlement, "nothing actually happened."
So the environmentalist groups filed a petition with the Court of Appeals to direct EPA to take action.
The National Mining Association, Phoenix-based transnational mining giant Freeport McMoRan, Inc., the American Chemistry Council, the American Petroleum Institute and a group called the Superfund Settlements Project all tried to intervene in the high court's ruling, but the justices concluded the groups fell "short of demonstrating their right to intervene...and permissive intervention would be inappropriate."
Whitehall-based Montana Mining Association Tammy Johnson executive director called the court’s ruling “disappointing.”
“From Montana Mining Association perspective, we think the state, through DEQ, as well as federal partners, have the authority and, in fact, do require sufficient reclamation bonding on all our (mining members’) properties. In our state, the bonds are reviewed every five years and updated. We think we’re in pretty good shape and it’s not necessary or efficient (for the federal government to set a bond) on top of what is already required in Montana,” Johnson said.
Robison said his group doesn’t necessarily intend for federal bonding to be duplicative, only additive.
Mark Thompson, environmental affairs manager for MR, suggested federal regulation, if it goes through, might not be the panacea some hope.
“As we’ve seen here in Butte, the federal government is much less responsive to local concerns than state and local people who are closer to the issues,” Thompson said. “The closer the government is to the people, the more responsive it is. I think Butte is a prime example of that.”
Dan Banghart, manager of Barrick-owned Golden Sunlight, 25 miles east of Butte north east of Whitehall, referred the Standard to the National Mining Association because he said he wasn’t fully versed in the court’s ruling. The NMA sought to intervene in the ruling.
Del Steiner, chief executive officer for Idaho-based New Jersey Mining Company, who just bought half the stake in the Butte Highland Joint Venture, a gold mine 15 miles south of Butte, said such regulation could hurt small mining companies and force them out of business.
“Hard rock mining runs on a knife-edge profit margin,” Steiner said. “It isn’t going to set well and hurts small companies.”
But Robison said the clean water and public health require safeguarding.
“Basically what’s happened, the mining industry’s track record is of being under-bonded, and they can’t always pay for cleanup costs,” Robison said.
-
EPA Advisers Seek Clarity in Draft Fracking Report
Feb 2, 2016 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency should clarify and better explain its draft conclusion that it found no evidence of hydraulic fracturing having any “widespread, systemic impacts” on drinking water, a panel of science advisers said Feb. 1.
Members of the EPA Science Advisory Board panel discussing the subject by teleconference took pains to say they were not disputing the EPA's summary statement nor were they saying it was unsupported by the data in the agency's 998-page draft report.
Their point was the conclusion needed definitions of “widespread” and “systemic” and should point to places in the body of the report that would support those words or, if revised, support substitute terms.
Working on revisions to its draft peer review of the EPA report, the panel appeared to agree to drop from its draft a suggestion that the EPA's summary statement was “inconsistent with the observations, data and levels of uncertainty presented and discussed in the body of the draft assessment.”
It will be several months before the peer review is submitted in completed form to the EPA. The agency will then need what could be many months to consider the advisers' critique and possibly make changes to a final version of the study.
‘Widespread, Systemic' Worries
The summary statement from EPA about the lack of evidence of “widespread, systemic impacts” has drawn a great amount of attention from industry representatives, environmental activists and the news media—and, during its public meetings, from the SAB.
“We're getting real hung up on these words,” U.S. Geological Survey hydrologist Daniel Goode said during the advisory panel discussion Feb. 1.
Another member of the panel, toxicologist Abby Li of consulting firm Exponent Inc., asked whether the panel's draft peer review, released Jan. 7, might have implied or given the impression that the panel was disagreeing with the EPA's assessment rather than asking for clarification.
”EPA may actually be correct. I don't know,” Li said. Her remarks seemed to reflect a consensus view among the advisers.
On the issue of defining the terms “widespread” and “systemic,” David Dzombak, a professor of civil and environmental engineering at Carnegie Mellon University and chairman of the panel, said, “Once they are defined, they may be very aligned with the data.”
Similarly, medical researcher Joseph DeGeorge of Merck Research Laboratories said, “If you define it and point to support in the body of the text, then it's fine.”
Public Objections Heard
The science advisers were in general agreement that hydraulic fracturing, or fracking, could have notable impacts on the local level even if not widespread or systemic on a regional or national scale. That point echoed concerns in their draft peer review, released Jan. 7 (05 DEN A-2, 1/8/16).
They heard brief comments from environmental activists and landowners who view fracking as the cause of water quality problems in many places and most notably in the Marcellus Shale region of Pennsylvania, the town of Pavillion, Wyo., and a part of the Barnett Shale region in Parker County, Texas.
The advisers similarly heard from the public during a meeting Oct. 28–30, 2015 (210 DEN A-12, 10/30/15).
Hydraulic fracturing uses pressure pumping to create fracture pathways for oil or natural gas in shale layers. Activists and landowners often object to the pollution problems associated with oil and gas work and tie these to fracking, although state regulators typically have found the pollution stemming from some other cause, such as poorly managed wastewater or a poorly cemented oil or gas well.
Industry representatives who spoke to the advisory panel Feb. 1 said the process has been used about 2 million times and one said the science advisers should not expect the EPA to “prove a negative,” a phrase referring to the often impossible task of proving that an issue does not exist.
-
Offshore Drilling Rule Would Stifle Gulf Production: Report
Feb 2, 2016 | BNA Daily Environment Report
By Jennifer A. Dlouhy
A plan by the Obama administration to tighten mandates for offshore drilling would cost $11 billion in industry investment, discourage companies from exploring in the Gulf of Mexico and stifle U.S. energy production, according to an industry-backed analysis.
The assessment, conducted by Wood Mackenzie for the Gulf Economic Survival Team, a Louisiana-based group representing local businesses and oil companies, says the proposed well-control rule would cut exploratory drilling in half—to about 10 wells a year. Those exploration wells provide the foundation for continued oil and gas production.
The well-control rule, proposed by the Interior Department's Bureau of Safety and Environmental Enforcement in April 2015, is aimed at preventing a repeat of the Deepwater Horizon disaster in 2010 that killed 11 workers and sent oil washing on to Gulf coasts (71 DEN A-9, 4/14/15).
Requirements of Rule
The measure would set new requirements for blowout preventers, the emergency devices that are used as a last defense against uncontrolled flows of oil and gas. It also would lay out detailed new mandates for the design and management of wells and require companies to conduct real-time monitoring from land of those offshore sites.
Interior said industry would face higher costs in complying with the rule, including one-time charges associated with adding new equipment to existing rigs. Over 10 years, the rule would cost about $883 million, the government estimated, but that would be offset by benefits, such as averted oil spills, valued at as much as $5.3 billion.
And the final rule may not be as costly. The safety bureau is set to send a final version of the rule to the White House Office of Management and Budget for review soon. The rule has been modified in response to thousands of pages of public comments, Allyson Anderson, associate director of the safety bureau, said in a telephone interview.
“We took our time and were deliberative in thinking of how to address some very serious concerns we saw in some places,” Anderson said. “People will see that very much reflected in the final rule.”
One-Third Drop in Production
Wood Mackenzie says the impact of the proposed rule on exploration and production would grow with lower oil prices. The decrease in activity would pare Gulf of Mexico energy production down by about one-third—the equivalent of more than 1 million barrels of oil a day—by 2030, the report said.
Some 105,000 to 109,000 jobs—mostly in Louisiana and Texas—would be put at risk by 2030, the analysis found.
Lori LeBlanc, executive director of the Gulf Economic Survival Team, said in a statement that the United States would “feel the impact of reduced domestic energy production stemming from this rule.”
The Gulf Economic Survival Team, formed in July 2010 by Louisiana's then-lieutenant governor, Scott Angelle, was critical of the pace of offshore oil permitting and the stiffening of federal regulations after the Deepwater Horizon disaster that year.
-
Feds To Review Environmental Impact Of Offshore Fracking
Feb 1, 2016 | The Hill - E2 Wire
By Devin Henry
The federal government is agreeing to study the environmental impact of offshore oil fracking before approving more operations off the coast of California.
In a legal filing released late Friday, the Interior Department agreed to study “the potential environmental impacts of certain well-stimulation practices on the Pacific [Outer Continental Shelf], including hydraulic fracturing and acid well stimulation” before approving the practice again in the region. The study is due by the end of May, according to the filing, and will determine if more intensive environmental reviews are necessary before approving future operations. Wells that already have federal approval aren’t affected by the settlement.
Offshore fracking and other techniques have been used to kickstart oil well production in the Pacific Ocean, a tactic discovered by the Environmental Defense Center in 2013.
The group later sued the federal government over 53 so-called well stimulation approval permits. The settlement announced last week affects six total platforms, located off Ventura and Santa Barbara Counties in southern California.
“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 California’s coastline,” said Brian Segee, a senior attorney a EDC.
“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.”
-
Stay The Course And Halt The Clock On The EPA's Clean Power Plan
Feb 1, 2016 | The Hill - Contributors
By Kathleen Hartnett White
The legal battles over the Environment Protection Agency's (EPA) Clean Power Plan (CPP), the most sweeping regulation in the agency's history, have begun. While the EPA's crusade against carbon already leads to mounting bankruptcies and job losses before the effective dates of the rule, the District of Columbia Circuit Court last month denied a petition from 27 states to stay the legal force of the CPP until a judicial review on the merits is complete. The states have now asked the Supreme Court to impose a stay.
Beware of the EPA's sly design of the grand energy plan, even with expedited judicial review and the EPA's murky concession on extended deadlines, the plan's key compliance dates will likely toll before a final ruling by the Supreme Court — unless the rule is stayed. Indeed, a stay of the CPP is in the court's fundamental constitutional interest. If the Supreme Court wants to preserve the legal force of judicial review, stay of the rule is essential to prevent the EPA's increasingly successful circumvention of the court's restraints.
Without stopping the clock on the CPP, the pyrrhic fate of the EPA's Mercury Air Toxic Standard (MATS) awaits state governments across the country. The Supreme Court ruled that MATS violated the Clean Air Act because the rule did not consider the costs. But the rule had not been stayed over the several years of litigation. The court's final ruling came too late. The EPA had already "got what we wanted," commented Administrator Gina McCarthy.
With MATS, the tight timeline and long lead-times required for retrofits forced many generators either to comply or shut down before the court finally ruled against it in 2015. By then, the EPA boasted that the Supreme Court's decision amounted to a nullity — void of legal force. On remand of MATS, the D.C. Circuit accepted the EPA's claims that most power plants already were in compliance and declined to vacate the rule declared unlawful by the Supreme Court.
The EPA's arrogant response to the final arbiter of the law of the land is now that the Supreme Court's decision on MATS was wrong. In a lengthy memorandum, EPA argues that costs don't matter and what costs there might be were reasonable, as demonstrated by the early compliance of many generators. The states' current request for a stay explains the lawless outcome of the MATS rule: "In short, EPA extracted 'nearly $10 billion a year' in compliance from power plants before this Court could even review the rule ... and then successfully used that unlawfully mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law." Such "unlawfully mandated compliance" is more the rule than the exception under the Obama administration's EPA.
If there were ever a federal rule worthy of a procedural timeout to allow full judicial review before enforceable compliance is triggered, it is the Clean Power Plan, which will seize control of the nation's entire electric system on the supposed authority of five words in an obscure, rarely used portion of the Clean Air Act. The scope of EPA's grand green plan goes far beyond even the most exorbitant of this EPA's many new regulations. The EPA's sweeping mandate to control generation, dispatch, transmission and consumption of electricity already causes substantial and irreparable injury — the legal grounds for a stay.
By many counts, over 400 coal-fired plants have already been shuttered. The number of major coal companies that have filed for bankruptcy grows. Thousands of jobs already have been lost and many more are endangered. State governments must decide within the next few months whether to cede to the federal government vital state authority exercised over the last 80 years in order to comply with the rule's timeline.
Without a temporary halt to the compliance clock, the EPA's CPP will accelerate irretrievable economic loss before the Supreme Court issues a final decision rule, as occurred with MATS. With oral arguments set for early June and submission of state implementation plans or requests for extension due in early September, states may be forced to make legal commitments or change state law before the court has ruled on the highly questionable legality of the EPA's self-assigned mission to end the era of fossil fuels.
The federal courts have long extended broad deference to the EPA's regulatory actions. There are indications, however, that the Supreme Court may have reached the limits of such tolerance in the face of this EPA's expansive arrogation of legislative authority. In the court's rebuke of an earlier, far less onerous greenhouse gas regulation, the majority warned the EPA that:
When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wished to assign an agency decisions of vast economic and political significance.
The CPP begs for review under the legal limits articulated above. On the basis of a radical interpretation of a few words in an obscure, rarely used portion of the Clean Air Act, the EPA would force state governments to impose sweeping federal control of the entire electric sector. Surely, federal mandates of such national consequence should remain the provenance of Congress and not a power "discovered" by the EPA in a "long-extant statute" enacted 45 years ago.
The benignly named Clean Power Plan to coerce states to redesign their electric sector around low- to zero-carbon intensity instead of cost and reliability may be the most expansive arrogation of power by a single agency in U.S. history. Given the questionable legality, as well as the "vast economic and political significance" of the EPA's energy plan, a stay of the rule is essential to preserve the legal force of the Supreme Court's final review before the regulatory clock irreparably trap states within EPA's tentacles.
-
High Court's FERC Ruling Good for EPA, Analysts Say
Feb 2, 2016 | BNA Daily Environment Report
By Rebecca Wilhelm
The Federal Energy Regulatory Commission's recent victory before the U.S. Supreme Court bodes well for the Environmental Protection Agency when the justices eventually consider substantive challenges to the Clean Power Plan, legal analysts told Bloomberg BNA.
The court ruled 6-2 that the Federal Power Act unambiguously extends FERC authority to regulate demand response rates in the wholesale energy market (FERC v. Elec. Power Supply Ass'n, 2015 BL 18590 (U.S. 2015); 16 DEN A-6, 1/26/16).
Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA that she was surprised both by the margin of victory and that the court so emphatically upheld FERC's demand response rule.
“The interesting thing is that an agency took an old law that was written decades ago and which couldn't possibly have anticipated the modern grid, and the agency had to adapt that law to deal with modern policy,” and the court resoundingly upheld those actions, Freeman said.
The EPA's Clean Power Plan (RIN 2060-AR33), issued under Section 111(d) of the Clean Air Act, sets a carbon dioxide limit for the power sector in each state, which would be implemented by state regulators through emissions reductions at fossil fuel-fired power plants, switching baseload generation from coal to natural gas and investments in renewable energy and energy efficiency.
An analogy can be drawn between FERC under the Federal Power Act and the EPA under the Clean Air Act, Freeman said (193 DEN A-3, 10/6/15).
‘A Good Omen for the EPA.'
The EPA, like FERC, “is trying to manage modern problems with an older statute and interpret the law in a way that is consistent with its authority but also appropriate for the contemporary problems it faces,” Freeman said.
Even though demand response and the power plan raise different legal issues under different laws, “the government can take some comfort in the fact that the court did uphold [FERC]'s view of its authority,” she said.
Victor B. Flatt, a professor at the University of North Carolina at Chapel Hill School of Law, told Bloomberg BNA he agrees that the FERC decision “is a good omen for the EPA.”
“This indicates that they're willing to say that this is the state of the world, what the EPA is doing is logical and it's supported by the law and we're going to allow it,” Flatt said.
While the power plan presents a more complicated case, the court demonstrated it “understands how the modern grid works,” Freeman said.
“You have to understand how air pollution regulation affects energy markets and the energy system,” she said. “I think there's some comfort in the fact that the court appears to understand the complexity.”
However, Seth T. Lucia, an attorney at Bracewell in Washington, D.C., told Bloomberg BNA it is difficult to discern how the court's support of demand response might extend to support of the power plan.
“These are very different regulatory schemes established by different statutes,” Lucia said.
‘Different Origin Stories.'
The FERC opinion underscores that demand response and the power plan “have different origin stories,” Lucia said. “The court goes out of its way to talk about how in the case of demand response it was promoted by market participants, later endorsed by Congress and then implemented by FERC.”
In contrast, the House, under Democratic control in 2009, passed a cap-and-trade bill co-authored by then-Reps. Henry Waxman (D-Calif.) and Edward Markey (D-Mass.), but the legislation died in the Senate in 2010. Emissions trading is one of the key compliance tools for states as they implement the power plan.
The power plan and demand response actually have similar origins, Flatt said.
“If you were to ask a bunch of electric facilities, they would do what the EPA has proposed,” Flatt said. “The answer really came from the market. In that sense I think it's similar.”
But that is not legally relevant, Freeman said.
“It may help cosmetically to say that this isn't a power grab in the sense that the challengers thought it was, to point out that this innovation of demand response wasn't invented by the federal government,” she said. “There's a legal question whether FERC has the authority to regulate this subject matter. And that doesn't turn on who invented demand response.”
The court took “a good close look at the statute without regard to the fact that demand response activity originated through market participants,” Lucia said.
“I thought it was interesting that both the majority and the dissent thought the Federal Power Act was clear enough on its face but reached completely opposite conclusions,” he said.
‘The Definition of Ambiguous.'
Courts take a two-step approach in reviewing challenges to agency actions. If the statute clearly speaks to the issue, the inquiry stops there. But if the statute is silent or ambiguous, the court determines whether the agency's interpretation is a permissible statutory construction. If so, the court defers to the agency (Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 21 ERC 1049 (1984)).
In FERC's case, both the majority and the dissent found that the Federal Power Act directly answered the question, and that step two of the Chevron analysis wasn't applicable.
Justice Elena Kagan delivered the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Antonin Scalia wrote a dissenting opinion, which Justice Clarence Thomas joined. Justice Samuel Alito recused himself from the case.
“It seems odd to say how could something be unambiguous if six of our justices say it definitely means something and two say it definitely means something else,” Flatt said. “That seems to me the definition of ambiguous.”
‘The Purpose of the Law Matters.'
Craig N. Oren, a professor at Rutgers Law School, told Bloomberg BNA that the court might have wanted to prevent FERC from later reinterpreting its regulatory authority.
“The court chose to treat this as a step-one question,” Oren said. “The majority may have been thinking it wants to make clear how it interprets Chevron. The court may also have been thinking it did not want the agency to later change its legal interpretation, that the court thought the question was so important that it should have a fixed answer.”
While FERC's victory is “good news” for the EPA, the court's opinion indicates “that it's not easy to get to the second step of Chevron,” Oren said. “This case makes it slightly more likely that the court will say the Clean Air Act speaks to the question” when it reviews the power plan, he said.
But the government should be encouraged that the court took the purpose of the Federal Power Act into account when it decided that FERC has the authority to regulate demand response, Freeman said.
“The bottom line is the Kagan opinion shows a kind of pragmatic approach to legal interpretation where the purpose of the law matters,” she said. “That's also going to be helpful to the government when it argues that what EPA is doing is in line with a necessary purpose of the Clean Air Act.”
-
GOP Looks For Path Forward On Energy Bill Amendments
Feb 1, 2016 | The Hill - E2 Wire
By Devin Henry
Senators have filed nearly 200 amendments to the energy policy rewrite bill currently being considered on the Senate floor, and GOP leaders say they are “redoubling” their efforts to work through the list this week.
Lawmakers approved 11 amendments to the bill last week, and Sen. Lisa Murkowski (R-Alaska), a bill cosponsor and the chair of the Energy and Natural Resources Committee, said Monday that members should expect many other amendments to hit the floor this week. “Eleven is a good number, but honestly I had hoped that we would have been able to process more amendments last week,” she said in a floor speech. “I want to move forward and process even more over these next couple days.”
Senators last week accepted amendments related to nuclear energy research, funding for advanced energy and a report on crude oil exports, among other things.
Many of the amendments brought to the floor last week won broad bipartisan support, but there are high-profile and potentially contentious measures still in the hopper.
A group of Democrats, led by Michigan’s senators, hopes to attach a $600 million aid package for Flint, Mich. to the bill. California’s two senators last week introduced an amendment calling for a formal federal response to a methane leak at a natural gas storage facility in the state. Others have introduced partisan amendments that could potentially divide the chamber.
Murkowski said she and her staff — and that of Sen. Maria Cantwell (D-Wash.), the ranking member of the energy panel and a bill co-sponsor — are working through the amendment backlog to figure out which will get votes this week.
Senate Majority Leader Mitch McConnell (R-Ky.) encouraged members to try keeping the legislation as bipartisan as possible.
“Talk to the senator from Alaska and Washington and get your amendments dealt with,” he said on Monday.
“This is bipartisan legislation that provides a common-sense approach to help Americans produce more energy, pay less for energy and save energy, all without raising taxes or adding to deficit. Let’s keep working to move this process forward. Let’s keep working to pass this bipartisan bill.
-
Senate Energy Bill Looks Bipartisan for Now, But Can That Last?
Feb 2, 2016 | Bloomberg Politics
By Kathleen Miller
The sharply divided U.S. Senate has a real shot at doing something unexpected -- passing bipartisan energy legislation in an election year. It won’t happen though, unless both parties can resist the temptation to lard up the bill with more partisan goodies.
Already, Democrats have talked about amendments relating to Puerto Rico’s debt woes or millions of dollars in funding to address the contaminated water crisis in Flint, Michigan, while Republicans are looking at preventing the Interior Department from halting some coal leasing or spiking the Land and Water Conservation Fund.
The energy legislation, S. 2012, which is backed by Energy and Natural Resources Committee Chairwoman Lisa Murkowski, an Alaska Republican, and the panel’s top Democrat, Maria Cantwell of Washington, would encourage energy efficiency upgrades of schools, speed up licensing of hydroelectric power projects and permits for liquid natural gas exports.
Senate Democratic Minority Leader Harry Reidof Nevada called it "a good bill" last week. Majority Leader Mitch McConnell, a Kentucky Republican, said it was "the latest reminder of what’s possible with cooperation in this Senate."
At the same time, lawmakers have proposed more than 150 amendments to the bill, including some from both parties that could jeopardize the entire measure. It’s a particularly tempting target since it’s one of the first major pieces of legislation so far this year that appears to have a serious chance at Senate passage.Amendment Tension
Asked whether some of those amendments could derail the bill’s odds of passage, Dick Durbin, the second-ranking Democrat in the Senate, said, "It could."
"Mitch McConnell says -- and I agree -- we should have an open amendment process," Durbin, of Illinois, said of the Senate Majority Leader. "Let’s have this debate, that is part of what the Senate is all about is to debate the issues of the moment."
Durbin said he’d support amending the energy measure to help Puerto Rico -- if Cantwell, who has also backed allowing Puerto Rico to restructure its debt -- decided the bill was the "right venue or forum" for the matter, he said. Bryan Watt, a Cantwell spokesman, didn’t immediately respond to an e-mail asking if she was open to such an amendment.’A Reasonable Approach’
Republicans haven’t been shy about their own desire to use the bipartisan bill to fight Obama administration energy actions. Senator John Barrasso, a Wyoming Republican, said the measure could be used to fight a recent announcement from the Interior Department that they planned to temporarily halt new coal mining leases on federal land.
"In a sense that is going to just be sending pink slips to thousands of people who earn their living and their livelihood with coal," Barrasso told reporters last month. "This energy bill will be an opportunity to speak out with amendments specifically related to the president’s most recent actions."
Orrin Hatch, a Utah Republican who leads the Senate Finance Committee, pitched amending the energy bill to block the ban unless Congress approves and Interior officials can show it wouldn’t reduce federal revenue.
J.P. Freire, a Hatch spokesman, called the temporary ban on coal leasing on public lands "an outrage" and said the amendment is a "reasonable approach to addressing this overbearing executive action." Many of Hatch’s Senate colleagues are studying the proposal, he said in an e-mail.Flint’s Water
Democrats led by Michigan Senators Debbie Stabenow and Gary Peters unveiled plans Thursday to try to amend the bill to include as much as $400 million in federal emergency funding to help replace or fix Flint’s lead-tainted water supply infrastructure. Their amendment’s provisions also include creating a Center of Excellence on Lead Exposure to focus on the needs of those exposed to lead -- and providing $200 million in funding over 10 years for the center.
"We’re begging, we’re pleading with our colleagues on the other side of the aisle" to support the Flint measures, Chuck Schumer of New York, the third-ranking Democrat in the Senate, said at the Thursday press conference. "We welcome our colleagues to join us."
The cost of those provisions could be a stumbling block to its success, if Democrats aren’t able to recommend equivalent savings elsewhere in the legislation. Question of Funding
"Any amendment that costs money," Murkowski said Thursday on the Senate floor. "You’re going to need to find a viable offset in order for us to consider it."
Durbin said Thursday that Democrats were "still waiting" to see if any Republicans would sign on to the Flint amendment. Stabenow said she’s spoken to Murkowski, and that she was supportive of some of the Flint amendment provisions.
"We’ll work very hard to get that vote," Stabenow said when asked if Democrats had a commitment to a Senate floor vote on the proposal.
Michael Tadeo, a Senate Energy and Natural Resources Committee spokesman, said Murkowski is "committed to working with her Senate colleagues to help the people of Flint, Michigan." He didn’t say whether she was open to allowing a vote on amending the legislation to provide funding for the Flint water crisis.Some Opposition
Senator David Perdue, a Georgia Republican, said the Flint amendment would be problematic for two reasons.
"One, I’m not sure it’s germane," Perdue said in an interview in the U.S. Capitol on Thursday. "The second reason is obviously the people in Flint are having trouble, but this is new spending and right now until we get a handle on what we’re going to do about this debt crisis, we’re borrowing that money that’d be sent to Flint. That’s the reality of where we are."
He said a potential Puerto Rico amendment "certainly isn’t germane" and he hopes the energy measure isn’t derailed by partisan efforts.
"Its been worked hard in committee just like the energy bill last year was," Perdue said. "I hope neither side puts these amendments that are not germane on there. I think we’ve got a good solid bill."
Murkowski has said the Energy panel considered more than 59 different amendments to the bill in July and lawmakers shouldn’t be afraid of proposals to change the bill.
"We’ve encouraged members to bring forward their amendments," Murkowski said last week. "What we need to do now is work together to get these amendments in a process and move us forward in a way that meets the demand."
-
Petitioners Outline Challenges to EPA Brick Standards
Feb 2, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and industry petitioners intend to challenge the methodology used by the Environmental Protection Agency in setting hazardous air pollutant emissions limits for brick and structural clay production facilities (Sierra Club v. EPA, D.C. Cir., No. 15-1487, statements of issues filed 1/28/16).
The agency in September issued health-based limits (RIN 2060-AP69) on emissions of hydrogen fluoride, hydrogen chloride and chlorine from brick tunnel kilns, as well as health-based limits on emissions of hazardous air pollutants from sanitary ware tunnel kilns and ceramic tile roller kilns. Those health-based limits were set over objections from various environmental organizations, which wanted the EPA instead to set technology-based standards for emissions from brick and clay kilns. The groups argued those standards would be more stringent.
The Sierra Club and Natural Resources Defense Council, which filed the first lawsuit against the brick standards in December, said in a Jan. 28 statement of issues that they intend to ask the U.S. Court of Appeals for the District of Columbia Circuit to consider whether the EPA violated the Clean Air Act by establishing risk-based standards. The groups also intend to ask the court to weigh whether the EPA's risk-based standards fail to provide an ample margin of safety for public health as required by the Clean Air Act.
The brick and structural clay standards, issued in September, apply to 90 facilities that are considered to be major sources of pollution under the Clean Air Act, though the agency anticipates some of those facilities will be reclassified as synthetic area sources, which are not subject to the major source emissions limits. The agency estimated the brick and structural clay portion of the rule will cost industry $64.6 million in capital investment and $24.6 million in annual compliance costs (186 DEN A-13, 9/25/15).
The environmental groups also intend to challenge various other aspects of the EPA's rule, including whether the agency violated the law by failing to use the California Environmental Protection Agency's reference exposure level for hydrogen chloride as the threshold for setting emissions limits from brick and clay kilns. Instead, the groups alleged, the EPA based its hydrogen chloride emissions limit on a less-protective, older reference concentration that the agency has said it has “low confidence” in.
The Sierra Club and the NRDC's statement of issues also highlight possible arguments against the EPA's failure to set emissions limits for hydrogen cyanide and the agency's decision to set work practice standards, rather than numerical emissions standards, for emissions of dioxins and furans during periods of facility startup and shutdown.
Industry Highlights Potential Challenges
While the environmental groups are challenging various EPA decisions that they allege led to less-protective standards, various industry petitioners also are challenging the agency's methodology.
The Brick Industry Association's statement of issues highlighted three aspects of the brick standards that the association intends to challenge: the EPA's standard for non-mercury metals, the agency's method for accounting for variability in its standard for mercury and the level of the agency's health-based compliance alternative that was established under the standards.
Kohler Co., a Wisconsin-based manufacturer of fixtures, furniture, tile and other products, intends to raise several arguments against the EPA's emissions standards for clay ceramic manufacturing facilities, including whether the EPA violated the Administrative Procedure Act by failing to offer an adequate notice and comment opportunity on aspects of the final rule that are substantially different than what was included in the agency's proposal. Kohler highlighted the EPA's incorporation of stack temperature limitations in the final rule, which are intended as a control measure for emissions of dioxins and furans.
Kohler also said it intends to ask the D.C. Circuit to review whether the EPA failed to adequately respond to comments on operational variability and whether the agency violated the law when it decided not to allow emissions averaging as an option for demonstrating compliance with the clay ceramics standards.
Tile Standards Also Challenged
The Tile Council of North America intends to challenge the EPA's standards for the ceramic tile industry, according to the trade group's statement of issues.
The Tile Council intends to ask the D.C. Circuit to consider whether it was legal for the EPA to issue standards covering major sources in the ceramic tile manufacturing source category, given that there are no major sources of hazardous air pollutants in that category. The trade group also intends to challenge the agency's categorization in the ceramic tile rule and requirements to control emissions of mercury and other pollutants through activated carbon injection equipment.
The environmental petitioners in Sierra Club v. EPA are represented by Earthjustice attorneys Nicholas Morales and James Pew. William Wehrum and Felicia Barnes of Hunton & Williams LLP are representing the Brick Industry Association.
Kohler Co. is represented by Todd Palmer and Valerie Green of Michael, Best & Friedrich LLP. The Tile Council of North America is represented by Howard Gilberg and Jean Flores of Guida, Slavich & Flores PC.
-
Senate to Vote on Energy Efficiency, National Monuments
Feb 2, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate was slated to vote Feb. 2 on a pair of amendments that would create an energy efficiency resource standard for electric power and gas utilities and limit the president's ability to create national monuments as it continued work on a broad energy bill (S. 2012).
The energy efficiency amendment, sponsored by Sen. Al Franken (D-Minn.), is similar to previously introduced legislation (S. 1063) that would require utilities to save a set amount of energy through measures requiring utilities to reduce energy demand.
The second amendment, sponsored by Sen. Mike Lee (R-Utah), would declare that any proclamation of a national monument on federal land expires after three years unless specifically approved by federal and state law.
Lee and others have been critical of efforts to declare land with rich oil and gas resources as national monuments, thereby taking development off the table.
Both amendments will need 60 votes for approval.
The underlying five-part energy bill includes language to expedite the federal approval process for liquefied natural gas exports, as well as provisions that would increase cybersecurity protections for the electricity grid and expedite the licensing process for hydropower projects.
The Senate is expected to finish consideration this week of the legislation, which has drawn over 200 amendments.
-
Senate To Vote On Monuments, Efficiency Standard
Feb 2, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
The Senate today will vote on a Republican measure limiting the president's authority to set national monuments and a Democratic proposal to set national energy efficiency standards, as the chamber tries to finish work on a bipartisan energy package by week's end.
Senators will vote this afternoon on an amendment by Sen. Mike Lee (R-Utah) to sunset national monument designations after three years unless Congress and the monument's home state enact legislation to make them permanent.
A second amendment by Sen. Al Franken (D-Minn.) to the broad energy legislation (S. 2012) would create a national energy efficiency resource standard.
Both amendments will have to surpass a 60-vote threshold for approval -- a bar that Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said backers are unlikely to meet.
"We will see how the votes go out, but I think you've noted the obvious -- that there is some controversy associated with both of them," she told E&E Daily last night.
However, Murkowski noted that both amendments represent priorities of both parties and reflect her push with ranking member Maria Cantwell (D-Wash.) to maintain the bipartisan spirit that carried S. 2012 through committee last summer on an 18-4 vote.
"What we're trying to do is put together a process that is viewed as fair by both sides," she said. "So if you've got a tough one on the D side, maybe you pair it with a tough one on the R side."
The chamber approved eight amendments by voice vote last night before adjourning, including a provision by Sen. Cory Gardner (R-Colo.) related to energy and water use in federal buildings and an amendment by Sen. Jack Reed (D-R.I.) encouraging Department of Energy electric grid modernization efforts to include coordination on energy storage.
Senators approved an amendment by Sen. James Inhofe (R-Okla.) expanding the eligibility for brownfields cleanup grants to nonprofits, a measure by Sen. Steve Daines (R-Mont.) adding cybersecurity interests to a new energy workforce advisory board and an amendment by Sen. Mazie Hirono (D-Hawaii) adding veterans and armed services members to an energy workforce pilot grant program.
Lawmakers also passed amendments by Tom Udall (D-N.M.) clarifying a provision in the underlying bill related to critical minerals and a measure by Sen. Jeff Flake (R-Ariz.) related to green building certification programs.
Murkowski said she and Cantwell are hoping to broker an agreement for additional roll call votes on some of the more than 200 amendments that colleagues have proposed.
"We're taking it one step at a time," Murkowski said, keeping alive a hope to finish the bill by Thursday. "That's the plan." Amendments galore
Amendments continued to trickle in yesterday.
Inhofe introduced an amendment targeting the president's climate plan. It would ensure that the federal government does not take any action pursuant to the plan that would reduce grid reliability.
Sen. David Vitter (R-La.) introduced an amendment to launch an investigation into Bureau of Safety and Environmental Enforcement actions regarding "demand for, or seizure of, helicopter fuel from private companies."
Sen. Jeff Flake (R-Ariz.) introduced an amendment to remove Mexican gray wolves from the endangered species list.
Sen. Heidi Heitkamp (D-N.D.) introduced an amendment to mandate a retrospective review of major rules with an economic impact of $100 million or more. Heitkamp also introduced an amendment to affirm federal commitments to carbon capture research. Outside pressure
Senators continue to receive pressure on the bill from interest groups.
The U.S. Chamber of Commerce on Friday told senators it "strongly supports" the bill and will consider votes related to the measure when it compiles its annual scorecard.
"America's energy landscape has changed dramatically since Congress last passed a multi-title energy bill and it is crucial that federal energy policy reflect these changes in order to maximize and prolong the benefits the recent energy renaissance is producing," the U.S. Chamber wrote in a letter released yesterday.
"This bill takes important steps to address many areas of high priority for American businesses, including natural gas exports, efficiency and infrastructure," wrote the group.
The conservative American Energy Alliance yesterday announced it would count three pending amendments when calculating lawmaker voting record tallies.
AEA supports an amendment by Sen. Bill Cassidy (R-La.) to repeal the federal renewable fuel standard, as well as an amendment by Sen. Mike Lee (R-Utah) to strike the permanent reauthorization of the Land and Water Conservation Fund in the energy bill.
AEA is also opposed to an amendment by Sen. Angus King (I-Maine), which has the backing of Senate Minority Leader Harry Reid (D-Nev.), to limit the ability of state regulators to alter net-metering policies.
Environmentalists, meanwhile, penned a letter to senators yesterday urging them to oppose amendments targeting Endangered Species Act protections for several species.
-
Biomass Sector Punts On Combining EPA GHG Rule Suits
Feb 1, 2016 | InsideEPA
The biomass industry is asking a federal appellate court to determine whether its challenges to two EPA rules -- one limiting greenhouse gases (GHGs) at new power plants and a second aimed at existing facilities -- should be consolidated, after the agency agreed with its request that the claims be held in abeyance but opposed combining them.
In a Jan. 29 reply brief, the industry cedes to court discretion on consolidation after earlier asking the court to sever and hold in abeyance biomass carbon issues in litigation over the agency's new source performance standards (NSPS) -- and to combine those issues with biomass GHG concerns in litigation over EPA's existing source performance standards (ESPS) that the court earlier put on hold during the broader legal challenge.
The filing was a reply to EPA's Jan. 28 response brief, in which the agency said it disagrees with the request for biomass issues under the NSPS, in a consolidated case known as North Dakota, et al. v. EPA, et al., to be consolidated with the ESPS litigation, West Virginia, et al. v. EPA, et al. Both suits are being heard in the U.S. Court of Appeals for the District of Columbia Circuit.
The two rules "while related, are distinct rules that differ in their regulatory treatment of biomass-based energy," the agency's filing said. "Biomass-related issues arise under the [ESPS] in the context of state plans that will be submitted to the EPA for approval, whereas state plans play no part in the process of implementing" the NSPS.
The agency also cites an ongoing administrative process to address biomass GHG issues raised by petitioners under both rules. "The manner in which that resolution is reached is likely to differ significantly given the distinct regulatory contexts. Moreover, it is theoretically possible that the administrative process will eventually resolve the petitioners' concerns in the context of one rule but not the other, or on a different timetable under one rule than under the other.”
For those reasons, it is "at a minimum premature" to determine if consolidation of the two sets of biomass petitions is appropriate or necessary, EPA said.
In response, the industry says there is "no necessity at this time to consolidate this case with the counterpart case in the [ESPS] litigation for case management purposes; however, Petitioner reserves and does not waive its right to request consolidation for briefing purposes should the abeyance be lifted. Petitioner defers to the Court's preference for whether the related cases in abeyance are consolidated for case management purposes at this point, or alternatively, whether the cases should be held in abeyance under separate dockets.”
The industry filing also notes that EPA agreed with its request to sever and hold the biomass GHG issues in abeyance in the NSPS challenge.
-
Obama's Hidden Climate Leverage
Feb 1, 2016 | Politico
By Brian Potts
Over the past six months, President Barack Obama has cemented his climate legacy with the release of the Environmental Protection Agency’s Clean Power Plan and the execution of the Paris climate agreement. But, as even he admits, neither of those policies will be enough to avert the worst effects of climate change. In fact, the laws on the books today aren’t even enough for the United States to meet its Paris obligations. The U.S. — and the rest of the world — must do much more.
Fortunately for the president, there’s a new way for him to right the U.S.’ greenhouse gas trajectory before leaving office: Buried in the Clean Air Act is an extremely powerful mechanism that effectively gives EPA carte blanche to tell states to make drastic cuts to their emissions.
This provision, which can now be used thanks to the completion of the Paris climate deal, raises important questions about national sovereignty and states’ rights — questions that Republicans would undoubtedly use to try and kill such a proposal. But the benefits of using this mechanism dwarf those concerns.
A few weeks ago, a group of 13 prominent environmental law professors and attorneys released a 91-page report outlining this new approach, which would allow EPA to use existing laws to quickly and efficiently regulate all pollution sources, in all states — not just power plants and cars. The experts concluded, “It could provide one of the most effective and efficient means to address climate change pollution in the United States.”
Here’s how it works: A rarely used provision of the Clean Air Act — Section 115 — gives EPA the authority to mandate that every U.S. state cut its emissions by whatever amount the agency determines is necessary to protect public health and welfare if two things happen.
First, EPA must receive a report or studies from an “international agency” showing that U.S. air pollution is anticipated to endanger public health or welfare in a foreign country. The many reports put out by the United Nations’ Intergovernmental Panel on Climate Change over the past few decades meet this requirement. The U.S. is one of the top greenhouse gas emitters in the world, and its pollution undoubtedly endangers public health and welfare in many other countries.
Second, EPA must determine that the foreign country harmed by U.S. pollution has given the U.S. “essentially the same rights with respect to the prevention … of air pollution occurring in that country.” In other words, there needs to be reciprocity. That’s where the newly signed Paris agreement becomes important. The Paris agreement satisfies this reciprocity requirement because there are now nearly 190 countries planning to reduce their emissions, at least in part, to protect one another’s health and welfare.
Critics of this proposal will undoubtedly argue that the Paris agreement does not fulfill this reciprocity requirement because the deal is not legally binding. But nothing in Section 115 requires such enforceability, and in any event, even if just one of the 190 countries enacts laws implementing the agreement, that should be enough to satisfy the requirement.
With both boxes in Section 115 checked, EPA now has free rein to use the section to require blanket greenhouse gas reductions from the states. The agency could leave all of its prior greenhouse gas rules — for cars, power plants, landfills, transportation fuels, and oil and gas wells — in place, for example, and issue a new rule ordering every state to cut its pollution by 28 percent from 2005 levels by 2025, which is what the U.S. has promised to do under the Paris agreement. Or it could go much bigger than that and replace this patchwork of regulations with a more economically efficient and effective blanket rule requiring states to achieve whatever reductions EPA believes are necessary. Each state would then have complete flexibility to decide which types of sources to regulate and by how much.
How would Republicans react to such a proposal? In the past, they might have been supportive. One of the first environmental lawyers to fully analyze and propose this potential approach was President George W. Bush’s top EPA lawyer, Roger Martella. In an article he wrote in 2009, shortly after leaving EPA, Martella discussed the approach in detail and concluded that it would be “flexible, effective, legally sound, and economically reasonable” (ironically, Martella is now in private practice fighting EPA’s Clean Power Plan in court on behalf of the U.S. Chamber of Commerce).
But if the Republican reaction to Obama’s other environmental regulations is any indication, they would freak out. Even some Democrats would likely be concerned at the federal government’s intrusion into powers traditionally reserved for the states. Through the completion of an international climate deal, this plan would effectively allow the president to sidestep Congress and take full control over each states’ energy sector. It would give the White House enormous power. States’ rights activists would rightly scream bloody murder.
But while these arguments are justified, the fact is that Congress has proved unwilling to address the looming threat of climate change. Section 115 may not be the best way to do that, but right now it’s the only one.
In his recent State of the Union address, the president said he will focus on climate change in his last year in office. If he wants to further cement his climate legacy, he should ask his EPA to immediately start working on a new rule under Section 115 of the Clean Air Act. It’s the most powerful and efficient tool he has to combat climate change. He should use it.
-
Post-Flint, Demand for More EPA Water Protections May Be Difficult for Some States to Swallow
Feb 1, 2016 | Roll Call
By Ed Felker
The contamination crisis in Flint, Mich., has thrown a harsh national spotlight on the problem of lead in drinking water, especially in poor and minority communities. Yet the issue is hardly new — Washington, D.C., had its own infamous lead scandal in 2004, among other communities that have seen lead spikes.
Now health advocates are calling on the Environmental Protection Agency to quickly toughen the protections that states must require of local water systems under the Safe Drinking Water Act.
Among the mandates on the table is the eventual and costly replacement of all lead pipes in drinking water systems, rather than just those shown to be an immediate threat to health.
The EPA has been holding talks since 2010 on long-term revisions to its Lead and Copper Rule, last updated in 2007 after two years of deliberations.
The rule requires states to enforce the law by making sure local water systems take precautions to keep lead out of the drinking water supplies, such as treating water to limit the leaching of lead in pipes, a process known as corrosion control.
The EPA has said it will propose the revisions in 2017, an action that will take on new importance in light of the exposure of families in Flint to high levels of lead, a strong neurotoxin that can affect child brain development and behavior, and cause illness in adults.
One of those who hopes the problems that surfaced in Flint are addressed in the revisions is Hilliard L. Hampton II. Last year, he ended 16 years as mayor of Inkster, Mich., a small majority African-American suburb about 75 miles south of Flint that has had its own share of financial problems.
Hampton sits on the National Drinking Water Advisory Council, which advises the EPA on implementation of the law. The council in December sent Administrator Gina McCarthy an eight-point set of recommendations to revise the lead rule.
He signed off on the advisory council’s recommendations, which came out of a working group that met seven times over 15 months, ending last summer as the Flint crisis was coming to light.
The list urged more emphasis on lead water pipe replacement and proper corrosion control measures to prevent leaching of lead. It also urged greater use of test samples from home water taps and action when results show heightened levels.
He pointed to a broad recommendation by the council that EPA should use the revised rule to minimize all contact between drinking water and lead pipes, and focus on low-income and vulnerable consumers.
“It epitomizes where I would like us to be, in terms of making sure there are no loopholes. We want to remove all lead pipes from water, potable water, totally.”
Hampton sees some parallels between his town and Flint. The state under Gov. Rick Snyder also considered installing an emergency manager in Inkster, but a consent agreement in 2012 requiring spending cuts by the town averted that outcome.
Inkster also relies on Detroit for its water, as did Flint, until the Snyder-appointed emergency manager in 2014 switched its source to the Flint River. Still, some areas in Inkster have shown elevated lead levels in drinking water, Hampton said.
-
What Effect Will The Next Energy Bill Have On Climate? Don't Ask Congress
Feb 2, 2016 | Environmental Defense Fund
By Keith Gaby
Congress is required to determine if a bill they’re considering adds to the federal deficit before they vote on it. The reason is simple: Our lawmakers should at least know if they’re adding more debt for the next generation to pay off.
The same should be true for climate change. When Congress votes on an energy bill, they should first know if they’re making future climate impacts better or worse for our kids.
Unfortunately, Congress is about to vote on an energy bill without even bothering to check if it increases or decreases climate pollution. The bill before the Senate this week contains a grab bag of provisions – some good, some bad – but your senator will have to vote on it without having critical climate impact information. What’s the score?
Every energy bill should have a “climate pollution score.” We know that coal, oil and natural gas emissions are responsible for 84 percent of America’s climate pollution, so anything that encourages or discourages fossil fuels, promotes or inhibits clean energy, or changes the way energy is taxed or regulated, will mean more or less climate change.
To vote on a bill like this without even knowing its impact defies logic. Passing an energy bill without considering climate change is like passing a budget bill without considering the deficit. It suggests the leaders of Congress must think climate change is completely irrelevant to energy policy, not even worth knowing about.
The choices we make now – whether we move our economy towards clean energy or deepen our dependence on dirty fuels – will have huge repercussions for our children and grandchildren. It’s bad enough to contemplate our kids asking us why didn’t try harder to solve climate change. Imagine when they find out we didn’t even bother to find out if our actions made it worse.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News
Energy and Environment News
Full Text of Stories Below
Add recipients
Suggested