Preview Newsletter
PM ACC 2/3/2016
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(ACC Mentioned) Plastics Recycling 2016: 'Recycling is a Business … It's Not a Charity'
Feb 3, 2016 | WasteDive
By Kristin Musulin
Resource Recycling's Plastics Recycling 2016 conference kicked off in New Orleans, LA on Monday, just as the excitement of Mardi Gras flooded the streets. -
ׂׂ(ACC Mentioned) Focused Film Recycling Effort Yields 125 Percent Boost in Volume
Feb 3, 2016 | Plastics News
By Jim Johnson
Education and access works. Just ask the city of Vancouver, Wash., which has seen plastic film recycling significantly rise and contamination problems at a local recycling facility drastically decline. -
(ACC Mentioned) Chemical, Cleaning Product Groups Forecast Closer Engagement with Retailers
Feb 3, 2016 | Chemical Watch
By Dinesh Kumar
A quick Chemical Watch survey of chemical industry and cleaning product trade groups' predictions for 2016 has found they expect to see improved engagement with retailers. -
(ACC Mentioned) Industry 'Very Concerned' About Proposed Reform of Prop 65 Warning
Feb 3, 2016 | Chemical Watch
By Kelly Franklin
A revised proposal from California's Office of Environmental Health Hazard Assessment, to modify the “clear and reasonable warning” provisions under Proposition 65, continues to raise concern among industry groups... -
Congress Must Pass a Strong Chemical Safety Bill
Feb 3, 2016 | The Hill - Congress Blog
By Fred Krupp
Among the top issues on Congress’s to do list in the new session is fixing the last of the 1970’s environmental laws to get an update. -
Echa Sees 'Clear' Need for Better Information on Uses
Feb 3, 2016 | Chemical Watch
By Geraint Roberts
More information in REACH registration dossiers on the uses of priority substances and their volumes produced, or imported, each year must be generated, a key Echa official has told a workshop. -
Senate Energy Bill Aims to Fight Power Grid Hackers
Feb 3, 2016 | The Hill - Cybersecurity
By Cory Bennett
The Senate’s wide-ranging energy reform bill includes a number of cybersecurity provisions that backers say will help bolster the power grid's lagging digital defenses. -
Quiet on the Cyber Front in 2015, But Analysts Raise Utility Underreporting
Feb 3, 2016 | E&E Energywire
By Blake Sobczak
To many industry observers, 2015 was a year fraught with cyber risk to the power sector. -
Big Freight Railroads to Miss Safety Technology Deadline
Feb 3, 2016 | AP (In The Philadelphia Inquirer)
By Joan Lowy
Three of the biggest freight railroads operating in the U.S. have told the government they won't meet a 2018 deadline to start using safety technology intended to prevent accidents like the deadly derailment... -
Reid Pushes for Flint Aid as Energy Bill Nears Finish Line
Feb 3, 2016 | The Hill - Floor Action
By Jordain Carney
Senate Minority Leader Harry Reid (D-Nev.) is urging lawmakers to attach aid for the Flint, Mich., drinking water crisis to a wide-ranging energy bill. -
Stabenow: Energy Bill's Flint Amendment Deal Collapsing
Feb 3, 2016 | Roll Call
By Jeremy Dillon and Bridget Bowman
A deal to provide funds to combat the Flint, Mich., water crisis fell through late Tuesday, leading Democrats to threaten to block what had been a bipartisan energy bill (S 2012) from moving forward. -
State AGs Bullish About Challenge to 'Unlawful' Obama Climate Rule
Feb 3, 2016 | The Hill - E2 Wire
By Timothy Cama
The state attorneys general leading the court fight against President Obama’s landmark climate change rule say they are optimistic that their unusual legal strategy will work. -
House Panel Goes Another Round on Senate Advice and Consent
Feb 3, 2016 | E&E Climatewire
By Jean Chemnick
A conservative legal expert told Congress yesterday that the Obama administration must seek Senate approval of the Paris climate change accord because it contains targets and timetables for cutting carbon emissions... -
Montana Pipeline Listing Law Could Inform Corps' Streamlined CWA Permits
Feb 3, 2016 | InsideEPA
By Bridget DiCosmo
A new Montana law requiring the state's environmental agency to list all pipelines crossing "navigable" waters in the state could inform the Army Corps of Engineers' next round of streamlined Clean Water Act (CWA)... -
As Grilling Over Flint Water Begins, Partisan Worry Lingers on Fringe
Feb 3, 2016 | New York Times
By Jennifer Steinhauer and Abby Goodnough
As Democrats pressure Congress to respond to the water crisis in Flint, Mich., Republicans hauled state and federal officials before the House Committee on Oversight and Government Reform on Wednesday... -
RGGI Gets Mixed Signals on Mingling with Other States
Feb 3, 2016 | E&E Climatewire
By Emily Holden
The nine-state Regional Greenhouse Gas Initiative is continuing to weigh linking its cap-and-trade system with other states that will use carbon markets to comply with federal climate change regulations. -
Murkowski Looks to Energy Bill to Aid Alaska LNG Project
Feb 3, 2016 | E&E Energywire
By Margaret Kriz Hobson
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) has introduced an amendment to the Senate omnibus energy bill (S. 2012) that would give developers of the Alaska LNG Project greater flexibility... -
U.S. Energy Exports: First Comes Crude, Then Comes LNG
Feb 3, 2016 | Forbes
By Brigham A. McCown
Last December, the United States moved closer toward unleashing the full potential of its energy renaissance when Congress passed – and President Obama signed – an omnibus spending bill...
Industry and Association News
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Energy and Environment News
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(ACC Mentioned) Plastics Recycling 2016: 'Recycling is a Business … It's Not a Charity'
Feb 3, 2016 | WasteDive
By Kristin Musulin
Resource Recycling's Plastics Recycling 2016 conference kicked off in New Orleans, LA on Monday, just as the excitement of Mardi Gras flooded the streets. Plastics recyclers, equipment manufacturers, brand owners, and other stakeholders gathered to discuss major issues and developments facing plastics recycling, touching topics from polypropylene recovery to China's influence on the industry.
For a conference covering the upsides and consequences of the niche recycling market, one overarching theme has echoed from hall to hall: plastics recycling, no matter the material or method, is an industry that needs work.
"Recycling is a business. We're all in business. It's not a charity. Recycling is not broken, but there are some business models that are. So I think what we're seeing now is there's a reevaluation of supply chain, how (the waste management sector) views and how they invest in recycling. And we're starting to see that," said Stephanie Baker, director of market development for the KW Plastics Recycling Division.
Here are the highlights of the first two days at #PlasticsRecycling2016 (with more to come as the conference ends on Wednesday):
ACC reports show improvements in rigid and film plastic recycling
Early Tuesday, the American Chemistry Council (ACC) unveiled the 2014 National Postconsumer Non-Bottle Rigid Plastic Recycling Report, announcing that postconsumer rigid plastics recycling — consisting of food containers, lids, caps, clamshells, tubs, cups, and various bulky items — increased by 276 million pounds (27%) in 2014. The report, authored by Moore Recycling Associates, stated that the current volume of postconsumer rigid plastics being recycled now is four times greater than what was reported in 2007.
"The combination of more advanced sorting technologies coupled with expanded consumer access is making a positive difference, and we look forward to seeing growth in rigid plastics recycling continue," said ACC Vice President of Plastics Steve Russell, as reported in Recycling Today.
An increase in film recycling was also announced Tuesday in another Moore Recycling-authored report, 2014 National Postconsumer Plastic Bag and Film Recycling Report. The report found a minimum of 1.17 billion pounds of postconsumer plastic film was recycled in 2014, marking a 3% increase from 2013 and a 79% increase in plastic film recycling since 2005.
Moore Recycling's Nina Bellucci Butler presented graphs of the film recovery report on Tuesday evening, showing the breakdown of recovered film and how it relates to 2013 findings.
UnWRAPping more developments in film recovery
Beyond the Moore Recycling film recovery report, the topic of film recovery — a recycling focus that has grown enormously over the past decade — is making waves in both the public and private recycling sector. In the session, "Film Recovery in Focus," leaders from ACC, City of Vancouver, WA, Plastics Forming Enterprises, and Closed Loop Fund explained the struggles of film recovery and what is being done to ensure consumers are aware of film recycling regulations.
One of the main topics of conversation was the WRAP initiative — or Wrap Recycling Action Program — which is being implemented in cities along the East Coast and Midwest to promote public awareness of film recovery. WRAP works with municipalities to establish film drop-off sites, aiming to keep plastic bags and other types of wrap plastics out of curbside recycling bins.
Shari Jackson of the American Chemistry Council explained, "The unique thing now and one of the focuses on WRAP is that there is an existing infrastructure that's in place that we can leverage and maximize to get as much film as possible recovered out of this existing system, while research is being done and other things are being done and technologies are being developed to hopefully come up with a system that can better capture this film curbside."
Experts prove polypropylene recycling success
The topic of polypropylene earned a session on Tuesday in "Polypropylene's Journey from Bin to Shelf," where experts from QRS, KW Plastics, Technimark, and Procter & Gamble explained the full supply chain life of the polypropylene resin.
"There have been wide and wild swings in the polypropylene market over the last couple of years," said Tom Frantz of Technimark. He listed the establishment of value in the supply chain, product quality, and design for recyclability as key developmental issues for the commodity. However, he goes on to explain that the prior peaks and dips of the polypropylene market are becoming stabilized, and there are key steps recyclers can take to ensure polypropylene is beneficial for their business: match brand owner's objections, believe in a plan, and look for partnerships to secure a supply chain.
"It's proving to be a dependable commodity," said Baker of KW Plastics. "In times right now, where were seeing PET and polyethylene particularly fluctuate — and believe me, we're feeling it just as much as you are ... but polypropylene is what's stabilizing us."
Procter & Gamble's presence on stage represented the brand owners' presence in the industry as P&G's Steve Sikra explained that polypropylene is, in fact, a desired resin for brands.
"This is a Q&A session so let me have the opportunity to ask the first question. Do brand owners want recycled polypropylene? I'm also going to give the first answer: Yes," he said.
Seeking out new opportunities across the board
In order to stay above water, recyclers of plastics are looking at innovative and smart ways to ensure that the commodities are properly recycled and recovered into new materials on a daily basis. That's why experts from the Institute of Scrap Recycling Industries (ISRI), Sustainable Packaging Coalition, Reclay StewardEdge, The Recycling Partnership, and Mother Parkers joined to discuss an important element of the conference: "The Economic Upsides of Plastics Recycling."
ISRI Chief Economist and Director of Commodities Joe Pickard began the session, explaining that 2015 was possibly the worst year for scrap recycling that ISRI had seen in several decades. He noted problems associated with domestic manufacturing and commodities markets, as well as issues in China, where supply has been increasing domestically as their import demand has been falling.
He continued to explain that it's "not all doom and gloom," as Goldman Sachs predicts global economic growth will accelerate in 2016 to 3.5% from 3.2% growth.
Tom Buwalda of Reclay StewardEdge quickly picked up the morale, showing that there has not been a plateau in U.S. plastic recycling in the past 25 years. "Plastics is one of those materials that is continuing to grow in use," he said, noting the opportunity for new types of plastics recycling — such as the recycling of electronics plastics — has helped boost the industry.
The last two panelists, Keefe Harrison from The Recycling Partnership and Paul Yang from Mother Parkers, explained how an increase in education, operational efficiencies, and product design have all helped improve plastics recycling and can continue to boost the business. Harrison particularly noted the importance of reuse in the industry, explaining that redevelopment of materials is a crucial element of recycling as a whole.
"People ask, 'What is the recycling industry?' We think of it as a thing, but it's not really a thing. It's a loosely connected, highly dependent network that we rely on to get materials back to us," Harrison said. "If (policy makers and the public) are not looking at recycling as a mechanism of developing materials for manufacturing, then they're missing the point. If we're looking at this just currently from an environmental (standpoint), then we're missing what recycling is really doing: developing materials for manufacturing."
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ׂׂ(ACC Mentioned) Focused Film Recycling Effort Yields 125 Percent Boost in Volume
Feb 3, 2016 | Plastics News
By Jim Johnson
Education and access works. Just ask the city of Vancouver, Wash., which has seen plastic film recycling significantly rise and contamination problems at a local recycling facility drastically decline.
Results of a campaign in Vancouver dubbed “Recycle Wrap/Beyond Bags” was unveiled at the Plastics Recycling 2016 conference in New Orleans.
Rich McConaghy was on the front lines of the program as environmental resources manager for the city Environmental Resources Division. He worked with the American Chemistry Council’s Wrap Recycling Action Program that uses public outreach and technical support to help divert polyethylene film from landfills — and recycling carts.
Vancouver, he said, “did see good results over the campaign period. We saw more than double, 125 percent, increase in volume of material.”
The WRAP program brought together the city and Clark County as well as the Safeway grocery store chain that provided collection sites for the plastic film. Trex Co. Inc., the plastic lumber company, also was involved as film collected in Vancouver was sent to that company for the production of composite lumber.
A key component to the program was educating citizens that plastic film should not go in their single-stream recycling carts. New signage and education helped citizens increase the amount of plastic bags, films and wraps at store-based collection points by the 125 percent.
Citizens, at first, were a bit confused about just what they could bring to the Safeway collection points. “Staring off, there was very little material besides bags coming in there,” McConaghy said. And the vast majority of those bags were from Safeway originally.
But as time went on and education continued, people came to realize that any PE bag or wrap, such as those used on cases of water, could be recycled through the collection points. Bags from other retailers then started showing up with more frequency, the city official said. And the amount of non-bag PE film grew by 500 percent during the course of the effort.
That volume wasn’t huge to begin with, he said. “But it did a have a huge increase in terms of the percentage of material that was non-shopping bag materials.”
“It grew by five times,” McConaghy said.
Increasing collection in stores correlated with a decrease in the number of bags placed in recycling carts. That meant that plastic bag contamination at a local materials recovery facility operated by Waste Connections Inc. fell by 75 percent, the trade group reported.
Plastic bags are typically incompatible with sorting equipment at MRFs. The bags get caught up in rotating disks that are designed to separate paper from other recyclables. The bags clog up the disks and don’t allow other recyclables to properly sort. Workers typically have to shut down the equipment repeatedly during the day to cut the tangled bags out of the equipment, causing substantial productivity losses.
Shari Jackson is director of film recycling in the Plastics Division of the Washington, D.C.-based ACC. “Education and collection, they are key factors in the increased recycling of this material,” she said, as there are now more than 18,000 collection sites for used PE film around the country.
“Film is in every household, every business. But it does need effective end-of-life options,” she said. “Through WRAP we can help accomplish increased recovery of PE film.”
McConaghy hopes success in Vancouver spurs interest in the WRAP program elsewhere.
“I’m hoping that my tale is maybe something that can be carried forward to other parts of the country, other parts of North America even, where folks may have the same opportunity,” he said.
WRAP is a key initiative of the ACC’s Flexible Film Recycling Group and is a self-funded group working to increase the recycling of PE film. “We work to promote film recovery, remove barriers and increase opportunity,” Jackson said.
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(ACC Mentioned) Chemical, Cleaning Product Groups Forecast Closer Engagement with Retailers
Feb 3, 2016 | Chemical Watch
By Dinesh Kumar
A quick Chemical Watch survey of chemical industry and cleaning product trade groups' predictions for 2016 has found they expect to see improved engagement with retailers.
Consumer Specialty Products Association (CSPA) president, Chris Cathcart, said the issue of "regulation by retailers" has evolved and there is a “better understanding of what it is that is impacting them … and how we, and our companies that put products on their shelves, can help.”
He added that “cooperative synergy” is improving up and down the supply chain.
The CSPA has “ramped up in that arena”, anticipating pressure on retailers to do more about sustainability, transparency and chemical control. In the past year, he said, such retailer initiatives have become more harmonised as companies see the practical advantages of common approaches.
The adoption of a reformed version of the Toxic Substances Control Act (TSCA) is also widely expected alongside more retailer sustainability activity. American Cleaning Institute (ACI) president Ernie Rosenberg, for example, said "the nice thing about getting TSCA passed is that we are not going to the retailers empty handed. We can now say ‘give this new law a chance’. It is a real federal cop on the beat.”
American Chemistry Council spokeswoman Anne Kolton said the trade body is in “consultation” with many retailers and “starting to share more information with them, just so they have a better picture of the chemistries involved [in products] and the perspectives they need to make wise decisions.”
ACC said it wants retailers and other third-party groups to take decisions in terms of actual risk.
On TSCA reform, most industry executives are optimistic that Congress will pass legislation, this year, that the President can sign. ACC’s Ms Kolton does not see any impediments to enactment of TSCA reform other than the legislative calendar, which is tight because of the November elections.
“I don’t think some of the issues are going to be that easy to resolve between the House and Senate [bills] but I do expect [TSCA reform] to be resolved,” said Mr Rosenburg. Mr Cathcart said CSPA is confident that the Senate and House leadership will bring forward a bill that is workable and signed into law.
The Transatlantic Trade and Investment Partnership (TTIP) agreement is a “big priority” for he Society of Chemical Manufacturers and Affiliates (Socma), said vice president of government relations Bill Allmond, “but I don’t anticipate the negotiations will be finalised this year.”
At the state level, Kristin Power, CSPA’s vice president for state affairs, said she expects the trend to continue in states introducing broad and substance-specific control. States with a "legislative interest in establishing programmes will continue to do so”, she said, even if TSCA reform moves ahead.
The ACC said it will continue to “advocate for legislation or regulations” at the state level that are science based, and let states know that if TSCA reform goes ahead, “there is a robust federal programme in place that creates a level playing field for the products of chemistry.”
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(ACC Mentioned) Industry 'Very Concerned' About Proposed Reform of Prop 65 Warning
Feb 3, 2016 | Chemical Watch
By Kelly Franklin
A revised proposal from California's Office of Environmental Health Hazard Assessment, to modify the “clear and reasonable warning” provisions under Proposition 65, continues to raise concern among industry groups and NGOs alike, according to recently published comments.
Oehha released a revised proposal, in November, intended to further the “right to know” provisions within Prop 65. This replaced a January 2015 proposal, but the agency says that the new release “takes into account” the comments that had been submitted previously.
However, a coalition of more than 200 industry groups, spearheaded by the California Chamber of Commerce, says, in comments, that it “remains very concerned about several aspects of the proposal and their likelihood to result in compliance difficulties, increased frivolous litigation and consumer confusion”.
Several changes to existing law, proposed by Oehha, include:
mandating that at least one chemical, for which a warning is required, be included in the warning statement;requiring a exclamation mark/triangle hazard symbol; and
limiting manufacturers' inclusion of safe harbour information that “contradicts” the statement.
The requirement to list at least one chemical, for which the warning is being provided, replaces a provision in Oehha's withdrawn proposal that would have required manufacturers to disclose the presence of any of 12 specific chemicals on product labels.
A coalition of NGOs, which includes the Environmental Working Group and the Breast Cancer Fund, says it supports the new text, because it will “make the warnings more informative, and help consumers and other exposed people reduce their aggregate exposure to a particular chemical”.
However, the industry coalition says that the new provision “suffers from ambiguous drafting” and could be interpreted as requiring manufacturers to disclose all chemicals.
With regard to the warning symbol provision, the American Chemistry Council (ACC) calls its inclusion “particularly ill advised”, because the symbol is widely used in other applications to communicate hazard. The trade group further notes that the UC Davis study that supported its use was “irreparably flawed”.
It has called on the agency to remove the requirement, or to consider a “P65” or similar designated logo.
The industry coalition also takes issue with the proposed limitation on companies providing supplemental information that contradicts a warning label. This provision, it says, potentially violates free speech rights, by blocking companies from “providing legally and constitutionally permissible context and background”.
It adds that the provision could “open up an entirely new category of Proposition 65 litigation”.
But comments submitted from NGOs and law groups, including frequent Prop 65 plaintiff Center for Environmental Health, called on Oehha to bring back stronger language, from the previous proposal, that would have also prohibited the inclusion of supplemental information that would “dilute or diminish the warning”.
Both this group, and the NGO coalition, raised additional concerns with the rulemaking, including that:
retailer responsibilities, as drafted, would allow some products to fall through the cracks and “rewards passivity on the part of retailers”;
modifications are needed to ensure that more warnings are provided before the point of sale, to ensure consumers can make better-informed purchasing decisions; and
caution that Oehha not permit warning disclosures to be included in product manuals in place of other communication methods.
A revised proposal, and additional opportunity for public comment, are expected by mid-year, according to the CalChamber.
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Congress Must Pass a Strong Chemical Safety Bill
Feb 3, 2016 | The Hill - Congress Blog
By Fred Krupp
Among the top issues on Congress’s to do list in the new session is fixing the last of the 1970’s environmental laws to get an update. Just before leaving town in December, the Senate passed legislation to reform America’s badly broken chemical safety system. That followed earlier House action and sets up a chance to enact the first landmark environmental bill in two decades. But the overwhelming support in both chambers belies the difficult path behind us and the treacherous road ahead. Whether our children and grandchildren are truly protected from toxic chemicals will depend on the strength of the final legislation sent to the president.
This issue is one that should concern every American family. For decades, our system of regulating the chemicals in everything from clothes to cleaning supplies to children’s toys has done little to protect us. While tens of thousands of chemicals have flooded the market, and scientists have linked some of them to diseases like cancer and Parkinson’s, EPA has been powerless to limit or restrict even the most dangerous ones.
The culprit is America’s main chemical safety law-- nearly 40 years old and broken from the start. In fact, just one day after Gerald Ford signed the law, The New York Times cited my organization, Environmental Defense Fund, arguing for a stronger law. Yet, reform efforts remained stuck until two years ago when public health champion, then-Sen. Frank Lautenberg (D-N.J.) and industry ally Sen. David Vitter (R-La.) joined together on a bipartisan compromise. That bill suffered a great blow when Lautenberg died less than two weeks later. Luckily, Sen. Tom Udall (D-N.M.) then took the helm and for the past two years, has led arduous negotiations between an unlikely set of conservative Republicans and progressive Democrats.
All of that courage, leadership and hard work has paid off in a strong, workable compromise bill that nearly every senator supports. We now have the best chance in a generation to fix this problem. In fact, it may be our only chance for a very long time. That means we need to get it done and get it done right.
The bill that’s finally sent to the president must establish a strong overall system of protection from dangerous chemicals. The legislation must give EPA the tools and resources it needs to protect the public’s health. This includes a primary focus on chemicals that EPA determines are of concern to health and the environment, not those the chemical industry wants reviewed; timely completion of safety reviews for chemicals in use as well as the 700 new chemicals that enter the market every year; a standard for judging their safety that is purely health-based; ready means to generate and share with states and the public information on chemical safety; and robust authority to restrict chemicals that present a risk to the public or our environment.
Failure to establish a strong federal program means we would fall back to the same passive patchwork system that has left us exposed to toxic chemicals for the last four decades. Worse, we will have wasted a once-in-a-generation chance to secure strong health protections for all Americans.
The bottom line is that Congress needs to send a bill to the president that actually ensures the safety of the thousands of chemicals that we encounter every day. If Congress is successful, it will have enacted the most important environmental law in decades.
Americans have a right to know that the products they buy in the supermarket and hardware store are safe. Congress owes them no less.
Krupp is the president of Environmental Defense Fund.
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Echa Sees 'Clear' Need for Better Information on Uses
Feb 3, 2016 | Chemical Watch
By Geraint Roberts
More information in REACH registration dossiers on the uses of priority substances and their volumes produced, or imported, each year must be generated, a key Echa official has told a workshop.
This is to prevent the issue becoming “too big a block to progress” to minimising their health and environmental effects.
Representatives of the European Commission, member state authorities, industry and NGOs attended the Echa run workshop. It discussed improving the implementation of REACH and CLP procedures . The aim is to increase their contribution to the World Summit on Sustainable Development 2020 goal of sound chemicals management.
The subject is timely because the completion of the Commission’s second review of REACH is expected next year. Echa plans to submit its second report on the operation of the Regulation in June.
Data quality
A key point to emerge from the workshop, said Echa’s risk management director Jack de Bruijn, was that “it is clear that registration dossiers need to be updated, especially on volume and use information – and industry was positive and committed on this.”
Another suggestion arising from the discussions on improving dossier quality, he said, was to somehow show registrants what a good quality dossier would look like.
Participants also felt, he added, that if Echa revoked the registration numbers given to companies which failed to bring their dossiers into compliance – something which has yet to happen – this would “send a strong signal”.
More information in REACH registration dossiers on the uses of priority substances and their volumes produced, or imported, each year must be generated, a key Echa official has told a workshop.
Regulatory risk management processes
The workshop broadly agreed, he said, that the risk management option analysis (RMOA) process is a useful way to decide which regulatory process, if any, to pursue for a particular substance. But the participants felt, he said, that the costs of inaction on a substance should be considered alongside “the current practice of getting an early ‘impression’ of the socio-economic consequences of taking action.”
The workshop also, he said, felt more should be done to increase awareness among article importers in the EU of their obligations under REACH to provide information about the presence of SVHCs in their products. “Better knowledge on the materials and articles where hazardous substances end up will be essential for a successful implementation of the Commission circular economy strategy,” he said.
A report of the workshop will be presented to the next meeting of Competent Authorities for REACH and CLP (Caracal) in March.
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Senate Energy Bill Aims to Fight Power Grid Hackers
Feb 3, 2016 | The Hill - Cybersecurity
By Cory Bennett
The Senate’s wide-ranging energy reform bill includes a number of cybersecurity provisions that backers say will help bolster the power grid's lagging digital defenses.
A section dedicated to cyber threats would empower the Department of Energy (DOE) to take swifter action in the event of a major hack, authorizing it to direct energy companies in a cyber crisis.
Senate Majority Leader Mitch McConnell (R-Ky.) touted the cyber passages on Tuesday while encouraging his colleagues to vote for the bill, which is expected to pass sometime Thursday.
“The Energy Policy Modernization Act is designed to defend our national energy grid from terrorist cyberattacks,” he said of the legislation from Sens. Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Wash.).
McConnell highlighted a number of the specific provisions, including one that authorizes additional cybersecurity research. Other clauses would also direct the agency to work more closely on fighting cyberattacks with countries like Canada and Mexico, which are also connected to the North American electrical grid.
The bill, McConnell said, “would help deter attacks by erecting stronger cybersecurity defenses, and it would help provide for faster and more effective responses when threats do arise."
The energy bill comes amid growing concerns of power grid vulnerability from both sides of the aisle in Congress and the White House.
Democratic presidential front-runner Hillary Clinton has even focused on the issue on the campaign trail, calling for power grid upgrades to increase cybersecurity in a sweeping energy infrastructure policy statement released in September.
Security experts have long warned that energy companies are attuned to these cyber dangers, but are still scrambling to catch up. Researchers say a successful cyberattack could cause massive blackouts, driving up mortality rates at powerless hospitals and disrupting the country’s water supply as electric pumps shut down.
In 2014, the energy sector was the most targeted of the nation’s critical infrastructure industry sectors, accounting for a third of cyber incidents, according to a government report.
National Security Agency Director Adm. Michael Rogers even acknowledged in a congressional hearing that China and likely “one or two” other countries are currently sitting on the grid, with the ability to literally turn out the lights if they wanted to.
Rogers said these nations, which likely include Russia and possibly Iran, “are deterred only by the fear of U.S. retaliation.”
The Senate’s energy bill isn’t expected to face considerable opposition after lawmakers on Tuesdayvoted down a slate of partisan amendments.
Democrats are still pushing Republicans to include an amendment that would earmark up to $600 million in federal assistance for the water crisis in Flint, Mich.
The House in December approved a Republican-backed energy policy bill that included several similar cyber provisions meant to fortify the nation’s power grid defenses against hackers.
But President Obama has threatened to veto the lower chamber’s measure over a number of regulatory provisions, including one to allow crude oil exports and speed up permitting for pipelines and transmission lines that cross international borders.
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Quiet on the Cyber Front in 2015, But Analysts Raise Utility Underreporting
Feb 3, 2016 | E&E Energywire
By Blake Sobczak
To many industry observers, 2015 was a year fraught with cyber risk to the power sector. Insurers detailed a potential $243 billion grid hacking catastrophe (EnergyWire, July 9, 2015). Parts of Ukraine lost electricity to an apparent cyberattack (EnergyWire, Jan. 11). U.S. officials discovered more malware creeping into the industrial control systems that keep the lights on (EnergyWire, Jan. 19).
Yet despite such alarms, not a single cyberattack put the U.S. grid at risk in 2015, according to data from the Department of Energy.
It's the first year to have passed without any "cyber incident" since DOE started consistently reporting such events five years ago through the Office of Electricity Delivery and Energy Reliability. Power producers, balancing authorities and other grid entities are expected to share all manner of disruptions with that DOE office, from big weather-related outages to physical attacks or sabotage. The federal agency could fine utilities that fail to disclose reliability problems, although it has not done so to date, a spokeswoman said.
At least two cybersecurity events "with the potential to cause impact" occurred in each year from 2011 to 2014, although none actually shut off power to any customers, according to filings.
Critics of the reporting process have suggested that utilities may be understating the full scope of the cybersecurity issue (EnergyWire, July 16, 2014). Electricity industry representatives have countered that reporting each insignificant cyberattack would flood DOE databases, while there have yet to be any major cyber events on par with weather disruptions or fuel crises in the United States.
Kimberly Mielcarek, spokeswoman for the North American Electric Reliability Corp., which collects its own cyber data that is kept private, pointed out that "there has not been load loss due to a cyber event."
The Office of Electricity Delivery and Energy Reliability's reporting forms "track both cyber and physical events, and only those with impact to 50,000 or more customers," she said.
DOE spokeswoman Joshunda Sanders also cited the 50,000-customer threshold in the agency's reporting instructions.
"There are a number of reasons why there may not have been a reported cyber event in 2015," Sanders said in an emailed statement. "Protecting the nation's critical energy infrastructure from disruptions caused by natural and manmade events is a shared responsibility. Utilities work consistently with governmental partners like DOE and [the Department of Homeland Security] to protect the nation's electric grid from the cyber threat and respond to and mitigate address cyber events when they arise."
But Joseph Weiss, managing partner at Applied Control Solutions LLC and an expert in industrial control systems cybersecurity, isn't ready to celebrate. He said he remains skeptical of DOE's and DHS's ability to safeguard the power grid.
He pointed to a recent $77 million broad agency announcement from the Defense Advanced Research Projects Agency, part of the Department of Defense (EnergyWire, Dec. 23, 2015). In its solicitaiton, DARPA is seeking "innovative research proposals" to detect and recover from cyberattacks on U.S. infrastructure, including the power grid. "Why would DARPA need to do this if DHS and DOE already had?" Weiss said.
Weiss said control system incidents will continue to be kept under wraps. "One, there are minimal control system cyber forensics to identify control system cyber incidents that can affect the electric grid," he said. "Two, there is a reticence to identify incidents as being cyber-related because of commercial and other reasons."
Sanders at DOE said the agency would not speculate on whether utilities or other entities are underreporting cybersecurity glitches in the grid. She also indicated there are no plans to adjust the criteria for reporting cyber events.
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Big Freight Railroads to Miss Safety Technology Deadline
Feb 3, 2016 | AP (In The Philadelphia Inquirer)
By Joan Lowy
Three of the biggest freight railroads operating in the U.S. have told the government they won't meet a 2018 deadline to start using safety technology intended to prevent accidents like the deadly derailment of an Amtrak train in Philadelphia last May.
Canadian National Railway, CSX Transportation and Norfolk Southern say they won't be ready until 2020, according to a list provided to The Associated Press by the Federal Railroad Administration. Four commuter railroads - SunRail in Florida, Metra in Illinois, the Massachusetts Bay Transportation Authority and Trinity Railway Express in Texas - also say they'll miss the deadline.
The technology, called positive train control or PTC, relies on GPS, wireless radio and computers to monitor train positions and automatically slow or stop trains that are in danger of colliding, derailing due to excessive speed or about to enter track where crews are working or that is otherwise off limits.
The other four other Class I freight railroads that operate in the U.S. - Union Pacific, BNSF, Canadian Pacific and Kansas City Southern - and more than a dozen commuter railroads have told the agency they will meet the 2018 deadline.
Railroads were required to inform the government of their plans by last week.
Amtrak, the nation's only long-distance passenger carrier, began operating a version of the technology on all tracks that it owns in its Northeast Corridor between Washington and Boston and in some other parts of the country in December. But most of Amtrak's operations outside the Northeast take place on tracks belonging to freight railroads, making it dependent on them to install the technology. Many commuter railroads are in the same position.
After a 2008 collision between a commuter train and a freight train in Chatsworth, Calif., killed 25 people, Congress passed a law requiring railroads to start using the expensive technology on all tracks that carry passenger trains or that are used to haul liquids that emit toxic gas if spilled.
The deadline for the change was Dec. 31, 2015. But after it became clear nearly all railroads would miss the deadline, Congress passed another law in October extending it to Dec. 31, 2018. That law also permits the government to grant waivers through Dec. 31, 2020, to railroads that meet certain criteria.
"We are encouraged that many railroads have submitted plans to meet, some even to beat, 2018," FRA administration Sarah Feinberg told The AP. "But we remain concerned that several other freight and passenger railroads are aiming for 2020." The agency plans to publish quarterly reports beginning later this year that detail each railroad's progress in implementing the technology.
The National Transportation Safety Board says that since 1969 it has investigated 145 rail accidents, in which 288 people were killed and 6,574 others injured, that could have been prevented by positive train control. Board officials said adoption of PTC is the most effective safety improvement railroads can make. The board has been pushing for installation of such technology for more than four decades.
The most recent fatal and preventable crash was Amtrak 188, which was traveling at twice the speed limit as it entered a curve in Philadelphia and derailed on May 12. Eight people were killed and more than 200 injured.
Freight railroads will ultimately be required to install PTC on an estimated 60,000 miles of track. Railroads say the process is extraordinarily complex, in part because the law requires that whatever PTC system they adopt be compatible with the systems adopted by other railroads that use their tracks. Most large freight railroads operate on the tracks of other freight companies as well as their own. Amtrak and commuter railroads often operate on freight tracks as well.
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Reid Pushes for Flint Aid as Energy Bill Nears Finish Line
Feb 3, 2016 | The Hill - Floor Action
By Jordain Carney
Senate Minority Leader Harry Reid (D-Nev.) is urging lawmakers to attach aid for the Flint, Mich., drinking water crisis to a wide-ranging energy bill.
"Before we rush off into the congratulatory phase of this legislation, there has to be an opportunity to work something out on Flint, Michigan, and the tremendous problems they have," the Democratic leader said Wednesday.
Reid's comments come as Democrats—led by Michigan Sens. Debbie Stabenow and Gary Peters—have been working to include assistance for Flint to the energy reform legislation from Sens. Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Wash.).
Stabenow suggested on Tuesday that lawmakers were "very close" on a deal.
But with Senate Majority Leader Mitch McConnell (R-Ky.) moving to end debate on the energy bill on Tuesday evening and leadership suggesting they want to finish the legislation on Thursday, senators are running out of time.
Reid, however, added that he hopes "we can work something out" on an amendment from Stabenow and Peters that would give up to $600 million to combat the Flint, Mich., drinking water crisis.
The Michigan city is dealing with severe lead contamination after changing the source of its water supply last year. State officials, who initially downplayed the problems, have been under fire for their response.
"It is very important for the people of Michigan and an example of what we need to do to help the country with these problems," Reid added.
Sen. Dick Durbin (D-Ill.) stopped short on Tuesday of saying that Democrats would oppose the energy bill if the Flint assistance wasn't added.
"Well we certainly want a vote, and I hope that that's going to be allowed," he told reporters.
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Stabenow: Energy Bill's Flint Amendment Deal Collapsing
Feb 3, 2016 | Roll Call
By Jeremy Dillon and Bridget Bowman
A deal to provide funds to combat the Flint, Mich., water crisis fell through late Tuesday, leading Democrats to threaten to block what had been a bipartisan energy bill (S 2012) from moving forward.
Sen. Debbie Stabenow, D-Mich., took to the floor Wednesday morning to announce that an agreement to address the crisis had stalled. Stabenow and her fellow Michigan Democrats had offered an amendment that would include $600 million in federal funds to address the crisis.
Republicans initially appeared hesitant to support the amendment. Stabenow told reporters on Wednesday that they had reached an agreement on a plan that would have provided less than half of the amendment's original request.
Stabenow said Democrats could stop the energy bill from moving forward, and potentially block further amendments to the legislation. Senate Majority Leader Mitch McConnell, R-Ky., started the process to end debate on the bill Tuesday night.
But if Republicans do not work with Democrats on the Flint Amendment, said Stabenow, “I think it’s a big question whether they get cloture.” Her threat has the potential to scuttle the Senate's attempt to update the nation’s energy infrastructure, efficiency and security policies for the first time in close to a decade.
“I don’t know what is happening at this point,” Stabenow said. “We had, as of yesterday, I thought, a solid agreement.”
Terms of the supposed agreement have not been made official, but individual lawmakers described some details on Tuesday. The funding for Flint to improve its water system would come in the form of a preferred-rate loan via an already-established EPA program that helps states pay for drinking water infrastructure, according to several senators.
Also on Wednesday, House Oversight and Government Reform Chairman Jason Chaffetzsaid his panel had issued subpoenas for former EPA regional administrator Susan Hedman and former Flint, Mich., emergency manager Darnell Earley to compel depositions on their role in the crisis.
'Bogus Excuses'
Stabenow said Republicans were using “bogus excuses” based on procedural concerns to stop the amendment from moving forward. The amendment sought to address toxic levels of lead found in Flint residents’ water, stemming from a 2014 city decision to switch this water supply from Lake Huron to the Flint River, while not requiring chemicals to be added that would prevent pipe corrosion.
“We don’t want to use [the people of Flint] as a political football,” Stabenow said. “They don’t deserve this after everything that they’ve been through up until this point.”
Stabenow said that she was warned that because spending bills traditionally originate in the House, an effort by the Senate to initiate spending on Flint could lead House leaders to place a “blue slip” on the bill, which would stop it from moving forward,. A person familiar with discussions told CQ Roll Call the Republicans believe there is already a blue slip issue, but the Democrats do not. Discussions about the matter are ongoing.
Another issue in the discussions, according to a person familiar with them, is a disagreement about the federal government's credit risk on $600 million in loan guarantees it made for the state of Michigan.
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State AGs Bullish About Challenge to 'Unlawful' Obama Climate Rule
Feb 3, 2016 | The Hill - E2 Wire
By Timothy Cama
The state attorneys general leading the court fight against President Obama’s landmark climate change rule say they are optimistic that their unusual legal strategy will work.
While admitting that asking the Supreme Court to block the rule before a lower court decision is a gamble, the officials for West Virginia and Texas say their argument is sound.
“We acknowledge that an application for a stay at this stage isn’t typical,” West Virginia Attorney General Patrick Morrisey (R) told reporters Wednesday.
“But what the EPA has done here is literally unprecedented, and they’re acting in a manner that’s clearly in violation of the rule of law, and recent Supreme Court cases,” he said.
Morrisey and Oklahoma Attorney General Scott Pruitt (R), along with representatives of 24 other states, asked the Supreme Court last week to stop the Environmental Protection Agency from enforcing the power plant rule while it is being litigated in federal court.
The states took the unusual step after the Court of Appeals for the District of Columbia Circuit, which is considering the merits of their lawsuit, declined earlier in January to issue a judicial stay.
The attorneys general argue that their states will experience irreparable harm during the litigation and that only a stay would prevent that.
Morrisey cited last year’s Supreme Court ruling in against the EPA’s mercury rule for power plants as an example of when a ruling comes too late, since most power plants had already complied with the standard.
“The court may feel the need to come in and look at these cases closely and give these states the opportunity to have a hearing and a decision on the merits before these harms continue,” he said.
Pruitt said the EPA is betting on a long litigation process so that states and power plants comply with the climate rule before the Supreme Court decides its fate.
“You have the EPA and this administration taking steps to basically engage in unlawful action, and they’re trying to accelerate it so that the states are forced to comply before there’s ever a ruling on the merits, with respect to the unlawfulness of the rule,” Pruitt said.
“There’s really been almost an intimidation to act before this president leaves office to put into motion compliance with what we believe to be an unlawful rule,” he continued.
Supreme Court Chief Justice John Roberts has asked the Obama administration to respond to the stay request by Thursday.
He will then either decide on the request himself or allow the full court of nine justices to decide.
Usually, the states would have to wait for the lower court to rule on the case and appeal it to the higher court for the justices to weigh in on it.
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House Panel Goes Another Round on Senate Advice and Consent
Feb 3, 2016 | E&E Climatewire
By Jean Chemnick
A conservative legal expert told Congress yesterday that the Obama administration must seek Senate approval of the Paris climate change accord because it contains targets and timetables for cutting carbon emissions -- even though they are not specifically binding under international law.
The Obama administration has held that a deal would trigger a requirement for Senate ratification only if it included language making the United States legally accountable for its climate commitment under international law. Secretary of State John Kerry and the rest of the U.S. negotiating team fought aggressively -- and successfully -- to ensure that the U.S. pledge to cut greenhouse gases 26 to 28 percent compared with 2005 levels by 2025 avoided legally binding language.
House Science, Space and Technology Chairman Lamar Smith (R-Texas) took aim at the Paris climate agreement in a hearing yesterday, saying it won’t curb emissions from other countries and will hobble American businesses. Photo courtesy of the House of Representatives.
But Steven Groves, a fellow at the Heritage Foundation, told the House Science, Space and Technology Committee that it doesn't matter whether the targets and timetables are legally binding -- as long as they are in the package.
"The administration and [Special Envoy for Climate Change] Todd Stern have been adding 'legally binding' to their rhetoric," Groves said after the hearing.
He pointed to the transcript of a 1992 Senate Foreign Relations Committee hearing on the U.N. Framework Convention on Climate Change in which a George H.W. Bush administration official testified that if a protocol were negotiated under the convention that included targets and timetables, and the United States wished to become a party, "we would expect such a protocol to be submitted to the Senate."
Groves said he can find nothing in the Congressional Record that draws a distinction between binding and nonbinding targets and timetables for the purposes of ratification.
"It's not written anywhere," he said. "If it was important, they would have written it down."
But it is unclear whether exchanges like the one with the Bush administration official would obligate future administrations. And it is doubtful whether policymakers in the United States or elsewhere in 1992 would have envisioned a protocol that included nonbinding targets and timetables but that contained other elements that were legally binding.
GHG targets: aspiration or law?
New Zealand first proposed wedding voluntary nationally determined emissions targets and timetables to mandatory transparency and procedural requirements in 2014. The United States was quick to embrace it, in part as a way to solve the Senate problem.
Andrew Steer, president of the World Resources Institute and the sole witness for Democrats at yesterday's hearing, said that the Paris deal reflects a new form of multilateralism that encourages countries to voluntarily put forward more ambitious commitments rather than threatening them with penalties for falling short.
This "soft law" approach had proved to be more effective in modern diplomacy, and the United States could take credit for advancing it, he said.
Even two years ago, Europeans wanted the Paris accord to be a binding treaty in every aspect, like the 1997 Kyoto Protocol. Steer credited U.S. environmental advocates with persuading them to abandon that position.
"There was a time when I was worried that the Europeans would hang onto this too long, and then what would happen is the issue of legal form would have been a big issue in Paris," he said. "It turned out that wasn't such a big issue, which enabled us to get on with more important issues."
These included transparency provisions that did become binding commitments under the Paris architecture, as well as provisions ratcheting up ambition and setting a goal of keeping warming to well below 2 degrees Celsius above preindustrial levels. Those features have allowed climate activists to trumpet Paris as a success even though the national targets will not collectively keep warming to safe levels.
Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School, dismissed Grove's argument that targets and timetables triggered advice and consent whether they were legally binding or not.
"If it is just a statement of aspiration, whether in a domestic context or an international context, that does not require congressional approval," he said. The national commitments toward Paris are aspirational, with only political consequences for failure, he noted.
Arguments, counterarguments
While legislative bodies can and do pass nonbinding resolutions frequently, there is no requirement for them to weigh in on aspirational goals articulated by the administration, he said.
Grove also argued in his testimony that the Paris deal meets internal State Department guidance for what usually constitutes a treaty, and that should prompt the administration to submit it. He argued, for example, that the United States' ability to meet its reduction commitment relies on policies like U.S. EPA's Clean Power Plan for the utility sector, which will affect state laws, that the agreement itself does.
But the Obama administration finalized the Clean Power Plan independently of Paris.
"It's not the Paris agreement that's effecting state law; it's the regulations adopted by EPA under the Clean Air Act that's effecting state law," said Dan Bodansky, a law professor at Arizona State University and an expert in climate negotiation.
The State Department guidance is not binding and does not compel the administration to submit an agreement that meets one or several of its criteria, he said.
Other House and Senate committees are expected to also hold hearings on the Paris agreement. The Senate Environment and Public Works Committee plans a hearing with State Department, EPA and White House officials, but it has not yet been scheduled.
It is unclear whether Republicans will bring legislation to the floor aimed at requiring the administration to seek Senate consent for the deal. U.N. Secretary-General Ban Ki-moon has asked heads of state to travel to New York for the signing, which coincides with Earth Day.
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Montana Pipeline Listing Law Could Inform Corps' Streamlined CWA Permits
Feb 3, 2016 | InsideEPA
By Bridget DiCosmo
A new Montana law requiring the state's environmental agency to list all pipelines crossing "navigable" waters in the state could inform the Army Corps of Engineers' next round of streamlined Clean Water Act (CWA) pipeline permits, which could address advocates' concerns that the Corps fails to consider how many crossings are occurring.
Montana's Department of Environmental Quality (DEQ), along with the Montana Department of Natural Resources and Conservation and the Montana Petroleum Association, implemented the law, S.B. 368, in December, posting a map and spreadsheet detailing the crossings.
The table lists crossings by county of navigable waters by major gas and hazardous liquid transmission pipelines throughout Montana, including the name of the waterbody and the type, size, operator and system associated with the pipeline.
The bill required DEQ to compile by Jan. 1 detailed information for all pipelines that intersect or cross a navigable river in Montana. This includes standard pipeline identification information, size, type of commodity transported, navigable rivers crossed or intersected by the pipeline, distance between shutoff valves that isolate the segment of a pipeline that crosses a navigable river from the balance of the pipeline, and the depth of coverage when the pipeline was installed.
One environmentalist says the database "would be very useful" as the information could be used to inform the next issuance, slated for 2017, of the Army Corps of Engineers' CWA nationwide permit (NWP) program.
The source says that at last issuance of NWP 12, which is used to authorize pipeline segments, the Corps estimated it would be used about 7,000 plus times per year, but adds, "I don't recall it estimating the number of waters that would be crossed, so this would be very interesting in the next approval of NWP 12."
Section 404(e) of the CWA requires the Corps to every five years re-issue its NWPs in a rule which constitutes a major federal action, triggering both a CWA review and a National Environmental Policy Act (NEPA) analysis of the potential environmental impacts.
Under the CWA, the NWPs govern actions that have minimal environmental impacts -- confined to half an acre -- and are intended to speed permitting for those projects.
Regulated entities under the 404 program generally seek coverage under NWPs as opposed to individual 404 permits because the process is more expedited, allows less input from EPA and is generally less labor intensive.
Activities that the Corps determines would have significant environmental impacts must be authorized under individual 404 permits, a process which involves a more rigorous, site-specific review of potential adverse effects, gives EPA a stronger oversight role and often becomes the target of environmentalist litigation.
Environmentalists' Concerns
Environmentalists have long criticized the NWP program, which provides streamlined permits for dredge-and-fill projects that are expected to have minimal environmental impacts -- usually less than a half acre.
Advocates say the Corps fails to consider projects' aggregate impacts that often have large scale upland impacts that harm endangered species and their habitat because the Corps does not adequately consider potential cumulative and upstream adverse effects.
For example, Center for Biological Diversity in a 2012 notice of intent to sue the Corps outlined a number of concerns with the NWP program, including specific impacts and failure to track the amount of coverage approved for projects under the program.
The Corps in February 2012 released revised versions of its 48 NWPs for a host of projects including agriculture, navigation, development and transportation, along with two new permits for land- and water-based renewable energy proposals.
The NWPs included NWP12 which sets environmental protection conditions for streamlined permitting for utility line projects, and has since faced multiple challenges from environmentalists arguing that applying NWP12 to authorize multiple stream crossings as part of major pipeline projects violates the CWA and NEPA.
In a May 29 ruling in Sierra Club, et al. v. Lieutenant General Thomas P. Bostick, et al., a three-judge panel of the U.S. Court of Appeals for the 10th Circuit rejected environmentalists' claims that the Corps should have under NEPA considered oil spill risks and cumulative effects of pipelines on the environment before re-issuing NWP12.
Judge Robert Edwin Bacharach, writing the majority opinion in the case, ruled that environmental groups waived their rights to challenge NWP12 over their claims that it violated NEPA, because they did not raise those concerns during the Corps' public comment period when it issued the new NWP 12.
The court also rejected the environmentalists' claims that the Corps unlawfully deferred a portion of its CWA analysis of whether the 2012 NWP12 would have only minimal environmental impacts, as mandated under the water law, to project-level personnel when Corps staff must verify coverage for a specific project.
In a concurring opinion, Judge Carolyn B. McHugh acknowledged that environmentalists waived their legal ability to challenge NWP12 on NEPA grounds because they did not raise the issue in their public comments during the permit rulemaking process. However, the judge also warned that the Corps' efforts to limit the scope of its NEPA analysis when reissuing NWP12 to impacts that occur within jurisdictional waters is unlawful.
While the Corps' environmental analysis under the CWA may be properly limited to the aquatic impacts associated with the discharge of dredge and fill material governed by section 404 of the water law, "nothing in the text of NEPA allows the Corps to limit its analysis in such a manner," McHugh wrote.
But in oral arguments in a related suit last April before the D.C. Circuit, the judges also seemed concerned about how frequently the Corps is using NWP12 to authorize major pipeline projects, with one judge saying, "I'm really curious -- are there a lot of pipelines out there passing over substantially private lands that don't have the full NEPA?"
In response, Department of Justice attorney Michael Gray, arguing on behalf of the Corps, said use of NWP12 is "very common" and that it is "one of the most commonly used NWPs out there."
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As Grilling Over Flint Water Begins, Partisan Worry Lingers on Fringe
Feb 3, 2016 | New York Times
By Jennifer Steinhauer and Abby Goodnough
As Democrats pressure Congress to respond to the water crisis in Flint, Mich., Republicans hauled state and federal officials before the House Committee on Oversight and Government Reform on Wednesday morning for a rare bipartisan grilling over the breakdown in public health.
“I want to know what happened, and more important I want to know what they are doing to fix it,” said Representative Jason Chaffetz, Republican of Utah and chairman of the committee. “This was a failure of epic proportions.”
The hearing was one of several Mr. Chaffetz has convened at Democrats’ request, but many of them are angry that the committee did not invite Michigan’s Republican governor, Rick Snyder, to testify. They also fear a dearth of new information because some of the other government officials who were high in the chain of command as the crisis escalated have since resigned and were not called to testify.
Democrats on the oversight committee, joined by Mr. Chaffetz, also sought the testimony of Darnell Earley, the former emergency manager in Flint, a Snyder appointee who approved the switch to water from the Flint River to save money. The committee issued Mr. Earley a subpoena late Tuesday, according to a member of its staff. But his lawyer, A. Scott Bolden, said in an email Tuesday night that Mr. Earley would be unable to appear before the committee.
“No matter who is responsible,” said Representative Elijah E. Cummings of Maryland, the top Democrat on the House Oversight Committee, “the people of Flint deserve a comprehensive investigation that gets them answers, not a partisan effort to protect the governor and others who brought about this crisis.”
A late addition to the witness list was LeeAnne Walters, a mother of four whose tap water was found to have extremely high lead levels starting early in 2015. “This is one part of getting to the complete picture,” Mr. Chaffetz said. “This is going to be a good, productive hearing.”
For its part, Mr. Snyder’s office announced on Tuesday that Mr. Earley would resign from his current job as the emergency manager for the Detroit school system at the end of the month.
Senate Democrats said last week that they would seek $600 million in federal aid to help Michigan clean up the contaminated water. They are trying to attach their request as an amendment to a sweeping energy bill now on the Senate floor. Noting that several Republicans have requested federal funding for disaster relief in their home states in other circumstances, Democrats have hinted that they could filibuster that bill if their Flint package is not approved.
Republicans reject the comparison, noting that the crisis in Flint is a man-made one. “I think it’s worth recognizing that, already, the state of Michigan has provided $40 million to Flint, and President Obama has made $80 million additional available through the E.P.A. to help the state of Michigan if the state so chooses,” said Senator John Cornyn of Texas, the No. 2-ranking Republican.
He added, “I think it would be a mistake, and I’m speaking for myself personally, to authorize a billion-dollar earmark just because the Democrats may want to be playing politics with this at the expense of the people in Flint, who we are all interested in helping.”
Miguel Del Toral, an Environmental Protection Agency employee who tried unsuccessfully to raise concerns about Flint’s water after seeing Ms. Walters’s test results early last year, was also called to testify.
But a spokeswoman for the agency, Monica Lee, said Mr. Del Toral would not be appearing before the committee.
Officials at the agency have said that they pressed Michigan regulators to take more decisive action after Mr. Del Toral brought his concerns about Flint’s water to their attention. But it was not until last month that the agency issued an emergency order and assumed oversight of lead testing in Flint.
“The E.P.A. is a pretty consistent target of the Republicans here in Congress,” said Representative Dan Kildee, Democrat of Michigan, who was born and raised in Flint. “So I wouldn’t be surprised if they were in this case, too. I would just really appeal to those committee members, and this is me speaking about my hometown, not make it a moment to either protect a governor in Michigan from accountability or to beat up on one of their favorite agencies to beat up on.”
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RGGI Gets Mixed Signals on Mingling with Other States
Feb 3, 2016 | E&E Climatewire
By Emily Holden
The nine-state Regional Greenhouse Gas Initiative is continuing to weigh linking its cap-and-trade system with other states that will use carbon markets to comply with federal climate change regulations.
RGGI officials yesterday heard a range of views from companies and advocates invested in the program. They ranged from enthusiastic proponents of carbon trading who say the system should set an example for other states to more wary environmental groups worried that expanding trading could water down the program's climate benefits.
"At our previous stakeholder meeting, we heard kind of from a variety of perspectives that there could be benefits to this, but go carefully and think about how it would work, what the impacts would be on stringency, price, trading, etc.," said Lois New, a RGGI representative from New York's Department of Environmental Conservation.
She said the program was hoping for "creative thinking" about how RGGI might be able to open trading to other states and stay effective.
That might mean holding states that want to trade with RGGI to certain standards, according to attendees at the program review meeting.
Many states are considering using carbon trading to meet their individual emissions reduction targets under U.S. EPA's Clean Power Plan starting in 2022. Trading systems like RGGI essentially allow coal and natural gas electricity generators to pay to take credit for cleaner power so that the entire electricity fleet remains under a total cap on planet-warming emissions (ClimateWire, Jan. 19).
RGGI may only want to trade with states that pursue a very similar trading program by capping emissions from existing and new sources of power, asking power generators to pay for emissions allowances, and, perhaps, aiming for more carbon reductions than EPA requires, according to commenters involved with the system (ClimateWire, Nov. 20, 2015).
An allowance-swapping debate
As a group, the states in the system could meet their Clean Power Plan goals if RGGI eliminates a cost containment reserve that introduces additional allowances into the market when prices rise and if it doesn't include offsets from other sectors, which EPA does not allow.
Without changes to those provisions, RGGI would not satisfy EPA's goals, according to recentmodeling.
Speakers disagreed yesterday about how to address those elements of the system and also about whether RGGI should seek to achieve greater emissions reductions than 2.5 percent per year. If RGGI made more cuts, generators in its states could be flush with allowances to sell to companies in states with tough goals.
While RGGI seems to be exploring ways to work with other states, program organizers this week suggested further system modeling might assume the nine Northeast states trade only among themselves and don't swap allowances with other states.
Trading supporters pushed back against that idea. They noted RGGI's mission statement in the early 2000s was to become the national leader in market-based greenhouse gas reductions and inspire other states.
Andre Templeman, founder of the energy consulting firm Alpha Inception, said RGGI might be able to sway other states to pursue similar systems and environmental goals by offering to trade with them.
"But if you just close your doors and say, 'We're not trading with anybody, no how, no way,' I think the influence you can have on other states is very, very limited," he added.
Other states depending on RGGI
Franz Litz, who facilitates the Collaborative for RGGI Progress, which represents several utilities and advocacy groups, noted RGGI's original intent was to "be a model for a federal program and to see RGGI expand to other states and trading with other states," according to an action plan in 2003.
His group wants to help navigate what states outside of RGGI might need to do in order to be able to trade with the system.
On the flip side, he told RGGI representatives, "as you're making these choices about design features, you want to be thinking about whether you are making yourselves attractive to other states for trading."
He said RGGI states shouldn't rush a decision, but it would be helpful for other states doing planning for the Clean Power Plan to know where RGGI stands.
States may now be making decisions about what kind of Clean Power Plan blueprint to write based on what others will do, and what type of trading systems they think will emerge. Large multistate trading regimes will likely reduce compliance costs, according to experts, so it could be beneficial to follow the crowd.
EPA, however, has said certain kinds of systems can't trade with others. States that cap emissions cannot trade with states that adhere to an average emissions rate for the power fleet.
Peter Shattuck, director of the Acadia Center's clean energy initiative, said his group recognizes "that eventually we want to get to integrated markets across the region, across the country.
"Larger markets are more effective. ... Eventually, we want to see the whole country get there," he said.
Environmental justice groups speak out
But Shattuck said RGGI should trade only with states that have the same key elements in the systems, including limiting new source emissions and auctioning allowances.
Some, meanwhile, condemned any form of carbon trading.
Michele Roberts, co-coordinator of the Environmental Justice Health Alliance, said carbon markets under the rule would burden vulnerable communities by allowing coal plants to stay online. She said she opposes expanding RGGI's reach at all.
The consulting firm ICF International recently finished modeling a draft reference case to show RGGI's emissions footprint and power mix by 2031. ICF will now start modeling Clean Power Plan compliance scenarios, said RGGI Executive Director Nicole Singh.
RGGI intended to look at mass-based trading within the system and to assume that all states outside the system were also capping emissions, including new sources of power and trading among themselves.
Singh noted that RGGI does not necessarily believe states will take that route, but the initiative wanted to keep the modeling simple. The program may consider looking at other scenarios, based on feedback. Some also noted the modeling should be tweaked to account for recently extended renewable energy tax incentives, which could change the power mix outlook.
RGGI will meet again in April to review the second round of modeling and then in July and in the fall to consolidate feedback and discuss potential state plans ahead of EPA's Sept. 6 deadline to request a two-year extension to submit a compliance proposal.
States must tell EPA then what kind of plan they are considering and what tools they might use to cut emissions.
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Murkowski Looks to Energy Bill to Aid Alaska LNG Project
Feb 3, 2016 | E&E Energywire
By Margaret Kriz Hobson
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) has introduced an amendment to the Senate omnibus energy bill (S. 2012) that would give developers of the Alaska LNG Project greater flexibility to decide where to route a proposed 800-mile gas pipeline project.
Murkowski's amendment could be brought to the Senate floor for a vote this week as the lawmakers conclude work on the broad energy package (E&ENews PM, Feb. 2).
The amendment would eliminate a provision of a 2013 law that limited construction of any future natural gas pipeline to a 7-mile segment of the George Parks Highway, which runs near the border of the Denali National Park and Preserve.
Supporters of the amendment say the change would give project developers greater latitude in choosing the safest and easiest route to build the pipeline.
"The change would allow the pipeline a better shot at a route to avoid challenging terrain," noted Larry Persily, former head of the White House Office of the Federal Coordinator for Alaska Natural Gas Transportation Projects and now special assistant for the Kenai Peninsula Borough. "But it wouldn't eliminate any of the environmental review provisions that would otherwise apply to the project."
Environmental advocates are cautiously watching Murkowski's amendment but so far have taken a neutral position on the proposed change.
Jim Adams, Alaska regional director for the National Parks Conservation Association, said his group would prefer that the pipeline be routed close to the George Parks Highway.
"But allowing the study of a short jog east into relatively disturbed land to avoid a concerned community is reasonable given the existing National Environmental Protection Act provisions and the critical legislative requirement that the route have the least adverse environmental effects for the park," Adams said.
The Alaska LNG partnership, which includes the state of Alaska, Exxon Mobil Corp., BP Alaska and ConocoPhillips, is proposing to build a massive natural gas pipeline from the state's North Slope gas reserves to a liquefaction plant and export terminal in southern Alaska.
The multibillion-dollar gas export project, which is in the early stages of engineering and design, would commercialize the 32 trillion to 35 trillion cubic feet of natural gas available in northern Alaska. The total estimated cost for the megaproject has been pegged at $45 billion to $65 billion.
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U.S. Energy Exports: First Comes Crude, Then Comes LNG
Feb 3, 2016 | Forbes
By Brigham A. McCown
Last December, the United States moved closer toward unleashing the full potential of its energy renaissance when Congress passed – and President Obama signed – an omnibus spending bill containing language eliminating the 40-year old ban on crude oil exports. The repeal was historic and sent a clear message to the rest of the world: America is ready to fully engage on the global energy stage.
Now, less than two months later, the Senate is approaching a final vote on another sweeping piece of legislation that would strengthen the nation’s energy future by, in part, streamlining the federal approval process of U.S. liquefied natural gas (LNG) exports. Similar to forecasts for crude, LNG exports, if expedited, are projected to deliver strong economic advantages from coast to coast including more jobs and bolstered economic revenue.
Talk about a good start for American energy in 2016.
The bipartisan “Energy Policy Modernization Act” was introduced last summer by Senator Lisa Murkowski (R-Alaska), Chairwoman of the Senate Committee on Energy and Natural Resources, and Senator Maria Cantwell (D-Washington). Significantly, this bill is the first major overhaul of policies effecting the U.S. energy sector since 2007. But in a sea of hotly debated amendments, the provision on LNG exports continues to hold strong with steadfast bipartisan support.
The goal is simple: alter a federal review process riddled with bureaucratic delays.
There are more than 30 permit applications for LNG exports currently sitting with the Department of Energy (DOE) for review. Many of these applications have awaited review for years, wasting away and collecting dust. More concerning, DOE has fully authorized only four terminal applications to date, in addition to the authorization of five separate permit applications for exports to countries the U.S. does not even have free trade agreements with. And for these select permits that received approval, construction and implementation of the projects still face an onslaught of red tape including environmental review and financing.
If passed, the LNG provision would hold DOE accountable to set deadlines. The Secretary of Energy would be required to deliver a decision upon review of permit applications no later than 45 days following review conducted by either the Federal Energy Regulatory Commission (FERC) or the Maritime Administration as a part of the National Environmental Policy Act of 1969 (NEPA).
The U.S. currently ranks fourth in the world for recoverable shale gas reserves. The U.S. Energy Information Administration (EIA) also confirmed that the U.S. will be a net exporter of natural gas by 2017. All of this, while succeeding Russia and Saudi Arabia to become the top producer of oil and natural gas.
We have the potential, and once put into full effect, the ensuing benefits for consumers and the U.S. economy would be significant and constant.
A new DOE report released late last year found that, “Economic gains generally increase with the amount of added LNG exports,” before concluding increased U.S. LNG exports would result in positive balance for the U.S. economy. The report – conducted by Rice University’s Baker Institute and Oxford Economics – also found that increased exports of American LNG would create up to 35,200 jobs annually and grow the economy between $7.7 and $20.5 billion annually from 2026 to 2040.
The advantages of increasing U.S. LNG export projects do not stop at home. I have previously written about how exporting this booming fuel source would also support and enhance the energy security of our allies across the globe. A few months ago, I traveled to Poland for the Warsaw Security Forum where NATO and other nations in the EU discussed, in particular, the EU’s growing dependency on natural gas supplies from Russia. The message that emerged was not to be confused: EU nations want—need—increased exports of U.S. natural gas to minimize Russian influence and forge strengthened democratic partnerships.
The evidence supporting increased U.S. LNG exports speaks for itself. Of course, all eyes will be on the Senate in the coming days to pass this bill including its provision to expedite approvals of LNG exports. Should this happen, American energy will be free to further solidify its presence in the global arena.
Mr. McCown is a former government executive, attorney, and public policy expert.
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