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ACC AM Feb 8
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Industry Perspectives on the Consumer Product Safety Commission
Feb 10, 2016 | Energy & Commerce Committee
Location: 2322 Rayburn House Office Building/ 10:15 AM -
Examining Agency Discretion in Setting and Enforcing Regulatory Fines and Penalties
Feb 11, 2016 | U.S. Senate Committee on Homeland Security & Governmental Affairs
Location: Dirksen Senate Office Building, SD-342/ 9:30 AM -
Commodity Glut, Strong Dollar Pressure Chemical Company Earnings
Feb 7, 2016 | Chemical & Engineering News
By Melody M. Bomgardner
U.S. chemical firms faced a litany of problems in the fourth quarter of 2015: a strong dollar, weak prices in agriculture and petrochemicals, economic turmoil in Latin America, and slow growth in emerging markets. Add them up, and it’s no surprise sales and earnings figures sport a number of minus signs. -
(ACC Mentioned) Meet the ‘Rented White Coats’ Who Defend Toxic Chemicals
Feb 8, 2016 | Vice News
By David Heath
At 2:15 in the morning, an insomniac corporate defense lawyer in San Francisco finished crafting a "revolutionary" scientific theory. Now Evan Nelson of the law firm Tucker Ellis & West needed a scientist willing to publish it in a medical journal. If his theory were given scientific validity, Nelson could use it to win lawsuits. -
High Levels of Phenolic Compounds Found in Calif. Firefighters
Feb 8, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Results of a new study have found average levels of benzophenone-3 to be five times higher in a group of Southern California firefighters than those detected in the general U.S. population. Benzophenone-3 (CAS No. 131-57-7), or BP-3, is used in sunscreen and other personal care products, plastic packaging for consumer products, and... -
Utility Wins Free Speech Case Over Warning Sign Law
Feb 8, 2016 | BNA Daily Environment Report
A town ordinance requiring an electric power utility to post health warning signs on its chemically treated wood poles violates the company's First Amendment right to noncommercial speech and may not be enforced, a federal district court in New York has ruled (PSEG Long Island LLC v. Town of N. Hempstead... -
The New Microbead Ban Won’t Solve the Microplastic Pollution Problem
Feb 7, 2016 | TakePart
By Emily J. Gertz
A new study linking microplastic pollution to low reproductive rates in Pacific oysters underscores the need to overhaul the use of petroleum-based plastics, according to a leading American ecotoxicologist. “The reason why we study these species is because we know they’re indicators for what is happening to... -
EPA Rejects Expanded Railroad Tie Non-Waste Determination In Final Rule
Feb 5, 2016 | InsideEPA
By Lara Beaven
EPA has finalized, largely unchanged, a rule to allow three categories of materials to be burned as fuel without triggering stringent hazardous waste combustion emissions requirements, rejecting an industry push to expand the types of preservative-treated railroads covered by the rule. -
(ACC Mentioned) Decades in the Not Making: EPA Given Schedule for Fulfilling CERCLA Rulemaking Responsibilities
Feb 4, 2016 | Lexology
The Environmental Protection Agency (EPA) is required by Section 108 of the Comprehensive Environmental Response, Compensation, and liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA), to establish financial assurance and responsibility rules for classes of facilities that are associated with the production, transportation... -
Offshore Well-Control Rule Goes to OMB
Feb 8, 2016 | BNA Daily Environment Report
By Alan Kovski
A final rule to toughen the regulation of offshore oil and gas exploration work was sent to the White House Office of Management and Budget on Feb. 3 for the start of interagency review. The well-control rule, also referred to as the blowout-preventer rule, was written by the Bureau of Safety and Environmental Enforcement, an Interior Department... -
Liquefied Natural Gas Exports Signal A New Era Of US Energy
Feb 5, 2016 | The Hill - Contributors
By Margo Thorning
The next few months will mark a significant time in the history of America's complex bond with natural gas. This month, Cheniere Energy announced they will commence the loading and transport of the first shipment of liquefied natural gas (LNG) exports to Europe from their Sabine Pass terminal in Louisiana. -
House Panel Prepares for Bills on Energy, Lands
Feb 8, 2016 | BNA Daily Environment Report
By Alan Kovski
The House Natural Resources Committee has substantial work to do in 2016 on public land management and energy policies, Rep. Rob Bishop (R-Utah), chairman of the committee, told Bloomberg BNA. The committee is about to start drafting a bill to help Puerto Rico step back from its fiscal cliff. -
It's Make-Or-Break Time For Senate Package
Feb 8, 2016 | E&E Daily News
By Geof Koss
The Senate will resume consideration on the bipartisan energy package this afternoon, after negotiations continued over the weekend on the issue that brought debate to a standstill last week -- aid for thousands of Flint, Mich., residents poisoned by lead in the city's drinking water supplies. -
States: Clean Power Plan Defies U.S. Supreme Court Rulings
Feb 8, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's Clean Power Plan is clearly unlawful and flies in the face of two recent U.S. Supreme Court decisions on application of the Clean Air Act, states opposed to the rule said in a brief asking the court to halt the rule's implementation (West Virginia v. EPA, U.S., No. 15A773, briefs filed 2/5/16). -
States, Industry Object to Power Plant Emissions Proposal
Feb 8, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
States and power industry organizations objected to the Environmental Protection Agency's proposal to require further reductions of nitrogen oxides from power plants under the Cross-State Air Pollution Rule. The states and industry groups, in comments filed on the proposal, objected to the methodology used... -
States, Industries Make Final Pleas To Supreme Court
Feb 5, 2016 | E&E News PM
By Robin Bravender
Dozens of states, utilities and coal groups today made their final arguments in an attempt to urge the Supreme Court to block the Obama administration's Clean Power Plan. The request to the court to step in and block the controversial rule as a lower court weighs the case is widely seen as an unusual legal maneuver, but that shouldn't stop the court from taking action, a coalition of more than two dozen states led by West Virginia said in its filing to the justices. E&E Power Plan Hub Logo "To be sure, requests of this Court for a stay of agency action pending review in the court of appeals appear to be rare. The States have not identified any case 'in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,'" the states' attorneys wrote. Litigation over the rule is still pending before the U.S. Court of Appeals for the District of Columbia Circuit. Judges on that court refused requests to block the rule while the case proceeds. However, the states said, "EPA and its intervenors have not identified a single instance where this Court has rejected such a request. Critically, there is nothing to suggest that the scarce precedent reflects anything more than that the circumstances rarely warrant the time and expense of seeking such a stay from this Court." The states added that "the Power Plan is the most far-reaching and burdensome rule EPA has ever forced onto the States." In a separate document to the court, utility groups responded to EPA's claims that a stay would be "extraordinary." This is "not an ordinary case. Never before has EPA claimed such sweeping authority to reorganize an entire sector of the economy in the name of reducing emissions," the groups said. And coal industry groups warned the court that those seeking a stay will suffer from "irreparable harm" if the rule is allowed to go forward (see related story). "Concrete evidence shows many examples of closures attributable to the Power Plan, as well as examples of long-term planning by utilities, which are currently making plant shut-down and resource decisions that will be implemented or made permanent in 2016." Supreme Court Chief Justice John Roberts is weighing the arguments from both sides and is expected to issue a reply soon. He could act on his own or consult with his colleagues before... -
Reality 'Contradicts' Utilities' Shutdown Claims -- EPA
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States, Utilities Again Press Supreme Court To Block EPA Carbon Rule
Feb 5, 2016 | PoliticoPro - Whiteboard
By Alex Guillén
The states asking the Supreme Court to block EPA’s Clean Power Plan today reiterated their request before Chief Justice John Roberts to block the rule while litigation plays out in a lower court. They argue that the justices must step in to prevent another situation like the mercury rule... -
EPA Critics Join House GOP Regulatory Reform Panel
Feb 5, 2016 | InsideEPA
House Republican leaders have announced the formation of a regulatory reform task force that includes lawmakers who have raised major concerns about EPA air, water, climate and other regulations. The task force is one of six panels that the GOP has “charged with developing a bold, pro-growth agenda that will be presented to the country... -
Hearings To Mull Upcoming Rules, Enforcement Policies
Feb 8, 2016 | E&E Daily News
By Hannah Hess
Committees on both sides of the Capitol plan to take a hard look at environmental and energy rules this week. House Science, Space and Technology Chairman Lamar Smith (R-Texas) will convene a hearing Wednesday titled "Midnight Regulations: Examining Executive Branch Overreach." -
Work From Home May Result in Higher Carbon Emissions
Feb 8, 2016 | BNA Daily Environment Report
By Jessica Shankleman
More businesses are asking employees to work remotely in a bid to cut rental costs for office space and take advantage of the growth of super-fast broadband, teleconferencing and smart phones. But working from home can actually increase the carbon dioxide emissions that cause global warming because those who stay home... -
EPA Orders Texas to Revise Coal Plant Air Permit
Feb 8, 2016 | BNA Daily Environment Report
By Nushin Huq
The Environmental Protection Agency directed Texas regulators to revise a 2014 air pollution control permit for a coal-fired power plant, finding that the permit was unclear on emission limits set for scheduled maintenance, startup and shutdown of the plant, according to a Feb. 3 order. -
House Bill Responding to Flint Expected on Floor
Feb 8, 2016 | BNA Daily Environment Report
By Andrew Childers
House legislation that would strengthen the Environmental Protection Agency's Notification of Water Violations will likely be taken up on the House floor next week, Matt Sparks, a spokesman for House Republican Leader Kevin McCarthy (R-Calif.) told Bloomberg BNA in an e-mail. -
Flint Crisis Heightens Debate On EPA's FY17 Infrastructure Funding Levels
Feb 5, 2016 | InsideEPA
By Amanda Palleschi
The Flint, MI, drinking water crisis is spurring new dialogue between water industry groups and lawmakers about water utilities' longstanding fiscal and policy priorities such as affordability, the value of water and funds to repair aging water infrastructure systems -- issues that are likely to be a major part of the debate over EPA's imminent... -
Third House panel plans hearing on Flint
Feb 6, 2016 | The Hill - E2 Wire
By Timothy Cama
The House Energy and Commerce Committee is planning a hearing next month on the drinking water contamination in Flint, Mich. The hearing is the third to be announced in the House on Flint’s water crisis, following a Wednesday gathering of the House Oversight Committee and a hearing next week hosted by House Democrats. -
GOP Senators Question McCarthy Over Flint Water Crisis
Feb 5, 2016 | InsideEPA
Several Republican senators are questioning EPA Administrator Gina McCarthy about when she learned of the drinking water crisis in Flint, MI, seeking a host of documents that they argue might highlight the agency's possible “failures” in responding to the crisis and help to prevent similar disasters in the future.
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Full Text of Stories Below
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Industry Perspectives on the Consumer Product Safety Commission
Feb 10, 2016 | Energy & Commerce Committee
Location: 2322 Rayburn House Office Building/ 10:15 AM
-
Examining Agency Discretion in Setting and Enforcing Regulatory Fines and Penalties
Feb 11, 2016 | U.S. Senate Committee on Homeland Security & Governmental Affairs
Location: Dirksen Senate Office Building, SD-342/ 9:30 AM
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Commodity Glut, Strong Dollar Pressure Chemical Company Earnings
Feb 7, 2016 | Chemical & Engineering News
By Melody M. Bomgardner
U.S. chemical firms faced a litany of problems in the fourth quarter of 2015: a strong dollar, weak prices in agriculture and petrochemicals, economic turmoil in Latin America, and slow growth in emerging markets. Add them up, and it’s no surprise sales and earnings figures sport a number of minus signs.
Wall Street’s focus was on Dow Chemical and DuPont, which plan to combine in a historic merger. At Dow, strong demand for high-margin products and swift cost-cutting made a silk purse out of an economic pig’s ear. The firm’s adjusted earnings per share of 93 cents beat analyst expectations by 23 cents.
“You can’t put a quarter like that together unless you have a great team aligned to shareholder value focused on margins, on cost, and on productivity and growing that top line based on quality market share,” said Dow CEO Andrew N. Liveris on a call with analysts.
Liveris’s team, which includes newly appointed President and Chief Operating Officer James R. Fitterling and Chief Financial Officer Howard Ungerleider, is also guiding preparations for the big merger. On the call, Liveris disclosed he will leave Dow once the merger is complete and plans are in place for a three-way split of the combined firm. He estimated that will happen by mid-2017.
For the quarter, Dow raised earnings 6.6% compared with last year, though price declines weighed down sales by more than 20%. On average, the firm sold 4% more products than a year ago. In China demand was up 10%.
Consumer spending translated into strong global demand for chemicals used in pharmaceuticals, automobiles, personal care, construction, and semiconductors. Polyurethanes, elastomers, water treatment membranes, and packaging plastics were all top sellers. But Dow faced weak markets for herbicides and products used in oil and gas drilling.
At DuPont, CEO Edward D. Breen focused on $730 million in cost-cutting and restructuring initiatives.
“We took a clean-slate approach to building a right organization for the future,” Breen said in an analyst call. “These efforts are bringing even greater discipline and rigor to the investments we continue to make in the businesses to maintain our competitive advantage.”
Although DuPont’s earnings met analyst expectations, they were down almost 75%. The firm’s nutrition and health segment saw 4% higher volumes compared with a year ago, thanks to sales of probiotics, yogurt cultures, and ingredient systems. Like Dow, DuPont enjoyed strong demand for polymers used in autos but suffered from low ethylene prices.
Demand was 8% lower in electronics because of competition for Solamet solar pastes. Cutbacks in oil and gas hurt demand for DuPont’s Nomex and Kevlar fibers. And the firm’s agriculture business swung to an operating loss.
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(ACC Mentioned) Meet the ‘Rented White Coats’ Who Defend Toxic Chemicals
Feb 8, 2016 | Vice News
By David Heath
At 2:15 in the morning, an insomniac corporate defense lawyer in San Francisco finished crafting a "revolutionary" scientific theory.
Now Evan Nelson of the law firm Tucker Ellis & West needed a scientist willing to publish it in a medical journal. If his theory were given scientific validity, Nelson could use it to win lawsuits.
Nelson defended companies that had exposed people to asbestos, a heat-resistant, fibrous mineral. Asbestos causes several deadly diseases, including mesothelioma, a rare cancer that often drowns the lungs in fluid.
Nelson had expressed frustration with the argument that asbestos is the only known cause of mesothelioma. After scouring the scientific literature and applying his own logic, Nelson came up with a new culprit: tobacco.
Nelson sent a typo-ridden email to Peter Valberg of Cambridge, Massachusetts. A former professor at the Harvard School of Public Health, Valberg was by then a principal at the environmental consulting firm Gradient Corporation, with offices in Harvard Square."We can collaborate to publish several key, revolutionary articles that you will see unfold as I present this stuff to you," the lawyer wrote in the 2008 email.
Citing a few scientific articles, Nelson drew a hypothetical link between the fact that cigarette smoke contains radioactive particles and limited evidence that people exposed to radiation had higher rates of mesothelioma.
"It is amazing that no one has pout [sic] this together before me, but I am confident that you will agree it is solid science that proves tobacco smoke causes mesothelioma — you just have to look at the tissue [sic] through the proper lense [sic]."
There was an obvious problem with Nelson's "science." Researchers for decades have exhaustively analyzed data on the health of hundreds of thousands of smokers. Since 1964, the US Surgeon General has summarized the findings of study after study, none of which shows evidence that tobacco causes mesothelioma.
Valberg wrote back within hours, calling Nelson's scientific theory "very intriguing." He was game to try to disseminate it in peer-reviewed journals. He later sent Nelson a contract agreeing to write the first of three articles and even offered him a 10percent discount. In the meantime, Valberg would adopt Nelson's theory as an expert witness in lawsuits, using it against mesothelioma victims such as Pam Collins of Bellevue, Ohio.
Corporate defense lawyer Evan Nelson. Still image from a 2012 court deposition.
The emails offer a rare glimpse into a world where corporate interests can dictate their own science and scientists for hire willingly oblige. It's a phenomenon that's grown in recent decades as government-funded science dwindles. Its effects are felt not only in courtrooms but also in regulatory agencies that issue rules to try to prevent disease.
The National Institutes of Health's budget for research grants has fallen 14 percent since its peak in 2004, according to the American Association for the Advancement of Science. With scarce resources, there's little money for academics to study chemicals that most already deem to be toxic. Yet regulatory officials and attorneys say companies have a strong financial interest in continuing to publish research favorable to industry.
Gradient belongs to a breed of scientific consulting firms that defends the products of its corporate clients beyond credulity, even exhaustively studied substances whose dangers are not in doubt, such as asbestos, lead and arsenic.
Gradient's scientists rarely acknowledge that a chemical poses a serious public health risk. The Center for Public Integrity analyzed 149 scientific articles and letters published by the firm's most prolific principal scientists. 98 percent of the time, they found that the substance in question was harmless at levels to which people are typically exposed.
"They truly are the epitome of rented white coats," said Bruce Lanphear, a Simon Fraser University professor whose own research showing that even tiny amounts of lead could harm children has been called into question by Gradient scientists. A panel of experts convened by the Centers for Disease Control and Prevention concluded in 2012 that there is no reliable evidence for a safe level of lead.
Valberg and other scientists at Gradient declined to be interviewed for this story, as did the firm's president, Teresa Bowers. On its website, Gradient says it "has applied sound science and rigorous data analysis to help our clients resolve challenging environmental problems."
Nelson, now 51, lost his job in 2013 after his new law firm learned of the Valberg emails. Three years later, he is still unemployed and living with his in-laws.
"I get that trying to say that radiation from tobacco smoke causes mesothelioma, that's on the fringe," he said in a recent interview. "In all my conversations with Gradient, I was always very clear that I wanted them to look at the science and I didn't want them to do anything that the science didn't support."
The techniques of consulting firms like Gradient evoke the tobacco industry's strategy of creating doubt about science. Gradient doesn't do its own animal or human studies. Often, it criticizes the work of others.
Douglas Dockery, chairman of the environmental health department at the Harvard School of Public Health, whose work on air pollution is a frequent target of Gradient scientists, described their critiques as "lame."
"For the academic, there's no value in going back and trying to refute these low-quality or poor-quality studies," he said. "You want to make real advances."
He noted that Gradient sometimes attacks others' work through letters to journals, which don't go through peer review but have the air of authority. 30 of the 149 publications the Center analyzed were letters.
Stalling regulations
Nearly half of Gradient's articles that are peer-reviewed are published in two journals with strong ties to industry, Critical Reviews in Toxicology and Regulatory Toxicology and Pharmacology, the Center's analysis found.
These articles are often aimed directly at regulators. The Department of Health and Human Services' National Toxicology Program, for example, listed styrene, used to make foam cups, as "reasonably anticipated to be a human carcinogen." Scientists at Gradient responded with an article paid for by the styrene industry saying the government finding was wrong.
Besides publishing articles, Gradient also routinely submits comments and attends hearings when the U.S. Environmental Protection Agency is reviewing a chemical to determine its toxicity. The firm is one of several that the chemical industry relies on to stall regulations.
Those efforts have been enormously successful, especially during the Obama administration. While there are more than 80,000 chemicals available for commercial use, the EPA over the past 30 years has assessed the health risks of only 570. These scientific assessments are necessary before any new regulation can be enacted. So the EPA's chemical research office has become a bottleneck that the chemical industry has targeted.
Industry and Congress pounced on criticisms of the EPA's chemical assessment process from the National Academy of Sciences, prompting the agency to start dozens of reviews of toxic chemicals all over again. Many, like its reviews of formaldehyde, arsenic and hexavalent chromium, had been in the works for years.
During the Bush administration, the EPA said it needed to assess at least 50 chemicals a year to keep pace. But in the past five years, the agency's Integrated Risk Information System has completed only six reviews — an all-time low. Last year, it failed to complete a single one.
The reviews rely heavily on published literature. The industry has argued that its research tends to be dismissed, putting pressure on the EPA to explain how much weight it gives each article. The EPA also has responded to criticisms that its chemical reviews have been cloaked in secrecy by holding more public meetings, which are dominated by industry scientists.
Center for Public Integrity
Gradient scientists have played an active role in trying to prevent tighter regulations.
In 2010, they helped delay for years the EPA's review of arsenic, a substance most Americans regularly consume in water, rice, fruit juices and other foods. Agency scientists were about to report that arsenic posed a much greater health risk than previously thought, even at the amount the EPA currently allows in drinking water. They determined that for every 10,000 women exposed daily to the highest amounts of arsenic allowed by law, 73 eventually would get lung or bladder cancer.
Gradient scientists argued that the EPA left out the most recent research on arsenic and should redo the analysis. The omission was due mostly to delays by the Bush administration's Office of Management and Budget, which had to approve all EPA scientific reviews. Some members of Congress latched on to Gradient's argument to accuse the EPA of cherry-picking data. They twisted the agency's arm to start the analysis over again.
The EPA was going to ban most uses of pesticides containing arsenic at the end of 2013. But without a scientific review, it had to postpone the ban indefinitely.
Gradient also helped persuade the Food and Drug Administration to declare another ubiquitous chemical, bisphenol A, harmless. That controversial decision was made in 2008. Nearly all Americans are routinely exposed to BPA in canned food, plastic bottles and cash-register receipts."You create a false statement of fact, and then you discount a whole literature"
Hundreds of articles by academic scientists have linked BPA to health problems in humans, including infertility, diabetes, cancer and heart disease. In 2006, Gradient scientists published an article attacking dozens of academic studies that had reported reproductive problems in rats and mice fed BPA. The FDA cited Gradient's article and a few industry studies in its decision.
Gradient maintained that humans are exposed to far less BPA than the animals in those studies. Frederick vom Saal, a University of Missouri professor who has investigated BPA for more than two decades, called that argument "complete nonsense."
"You create a false statement of fact, and then you discount a whole literature," vom Saal said.
A group of academic researchers were so outraged by an article on BPA written by Gradient's Julie Goodman and Lorenz Rhomberg that they wrote a lengthy response with a table listing all the "false statements" in it.
"In this article, there is nothing that is true," vom Saal said. "It's ridiculous. And that's how they operate."
Rhomberg, who once worked at the EPA, now sits on a panel that reviews all of the agency's toxic chemical assessments before they become final.
Adam Finkel, a senior fellow at the University of Pennsylvania Law School and a former official at the U.S. Occupational Safety and Health Administration, was close friends with Rhomberg for many years. He says he's perplexed by how his friend seems to have changed since he joined Gradient.
"In 1997, Dr. Rhomberg submitted brilliant comments to our OSHA regulation on [the solvent] methylene chloride, in which he skewered a half-baked industry theory that the cancers it caused in animals were irrelevant to humans," Finkel said. "Nowadays, I see him routinely cheerleading for some of the same sorts of unconvincing arguments designed to make substances seem less risky."
Asked to respond, Rhomberg said, "Open discussion about the evidence and how it is to be appropriately interpreted is essential to the scientific process, and any claims that paint as illegitimate the making of critical comments is destructive of the scientific process."
Finkel is especially upset with arguments Gradient made in trying to prevent the EPA from listing a little-known chemical called n-propyl bromide as a hazardous air pollutant under the Clean Air Act. Gradient's Goodman wrote a lengthy public comment in 2014 paid for by a maker of n-propyl bromide. In it, Goodman argued that a government study showing high rates of cancer among rats exposed to the chemical had no relevance for humans.
Finkel said Goodman offered no proof to support this but was "just making stuff up." He said he found the document offensive because hundreds of workers are exposed to the chemical and some have suffered serious disabilities. In 2013, The New York Times told the stories of furniture workers in North Carolina who found it difficult to walk after being exposed to n-propyl bromide for only a few weeks.
Defending such a product, Finkel said, "is not your finest hour when you're talking about something we know is killing people."
Harvard ties
Gradient was founded in 1985, about the same time as two of its biggest competitors: Environ and ChemRisk. When the company was bought in 1996 by The IT Group, a hazardous-waste-disposal company, it was reporting annual revenues of $5 million. But Gradient was sold back to its founders in 1999 and no longer reveals its finances.
The company often touts its ties to Harvard. Several of its scientists used to be on faculty at the Harvard T.H. Chan School of Public Health. Some continue to teach there as adjunct faculty.
Gradient's clients include two of the most powerful lobby groups in Washington, the American Petroleum Institute and the American Chemistry Council. Other frequent clients include Navistar, a diesel truck manufacturer, and the Texas Commission on Environmental Quality, a regulatory agency that has a history of aligning with industry.
Gradient has become a leading scientific voice in trying to prevent further regulation of air pollution. That puts its scientists at odds with former colleagues at the Harvard School of Public Health, such as Dockery.
Dockery was among a team of scientists at Harvard who after the Arab oil embargo in 1973 set out to evaluate the health effects of burning domestic coal instead of foreign oil to generate power. With funding from the National Institutes of Health, the Harvard scientists recruited more than 8,000 volunteers in six cities living near coal-burning power plants. Monitors were used in each city to measure soot and smog.
After collecting data for 15 years, the researchers themselves couldn't believe what they were finding. People who lived in communities with the dirtiest air died on average two years younger than those who breathed cleaner air. That meant that eliminating air pollution could increase life expectancy in some cities to the same degree as if scientists had found a cure for cancer.
The results of the Six Cities Study were so dramatic that researchers decided they couldn't publish them without corroboration, Dockery said. The Harvard scientists were able to convince the American Cancer Society to share data on the health of 1.2 million volunteers tracked since 1982. The researchers matched it to EPA data on soot and came up with similar results.
For a while, the studies attracted little attention. But that changed in 1997 when the EPA — under pressure from courts to enforce the Clean Air Act — used the studies as the basis for new air-pollution rules.
According to the EPA, none of its regulations saves as many lives as the Clean Air Act. The agency estimates that in 2010, rules on soot and smog kept 164,000 Americans from dying prematurely, mostly from heart attacks. By 2020, it expects the number of lives saved annually to rise to 237,000.
But the regulations are expensive. The EPA estimates that industry will have spent a total of $65 billion on pollution controls by 2020.
Facing intense criticism from industry, the Harvard researchers agreed to have a third party reanalyze the data. It was given to the Health Effects Institute, a respected scientific firm funded by both the automotive industry and the EPA.
The three-year wait for the institute's results was nerve-wracking, Dockery said. But the reanalysis ultimately confirmed the findings of the Harvard researchers.
"After that was released we thought the issue was settled," Dockery said.
Since then, however, Gradient scientists have taken a leading role in trying to cast doubt on the studies' findings. Gradient has published 37 articles on different aspects of air pollution, funded by the American Petroleum Institute, Navistar and the International Carbon Black Association, whose members are subject to clean-air regulations."It just seems like you can just make up your own facts now"
In congressional testimony in 2012, Goodman accused the EPA of being biased by giving too much weight to the Harvard and American Cancer Society studies while ignoring "dozens of other epidemiology studies," including many that found no health problems caused by current levels of air pollution.
In her testimony, Goodman cited only six studies that she said show no harmful effects from soot. But two of those studies were funded by industry. And authors of the other four say their findings supports those of the Six Cities Study.
"It would be wrong for her to say that we didn't find an effect," said Dr. Bill McDonnell, a former EPA scientist whose work was cited by Goodman. "We did find a relationship. It just seems like you can just make up your own facts now."
"Mrs. Goodman and the company she works for have a reputation of misrepresenting the science consistently," said Bert Brunekreef, director of the Institute for Risk Assessment Sciences at Universiteit Utrecht in the Netherlands and co-author of two of the articles.
A team of European researchers led by Brunekreef combined the results of more than 20 studies done in the United States, Europe and Asia and found that as people are exposed to more fine-particle soot, they are more likely to die prematurely, especially from heart disease. In Dockery's mind, the question of whether soot is linked to early deaths is beyond dispute.
"One of the disappointments about Gradient is they tend to go over these same arguments that have been thoughtfully discussed previously," Dockery said. "It doesn't advance the science very much."
Since 2013, the Texas Commission on Environmental Quality, a regulatory agency, has paid Gradient $1.65 million to challenge the EPA's scientific analysis of the benefits of reducing ground-level ozone, also called smog. Gradient already had been doing similar work for the American Petroleum Institute.
Goodman has criticized a U.S.-government-funded study led by a group of public-health scientists at the University of California, Berkeley. The study explored whether smog was linked to deaths.
Michael Jerrett, the lead author of the ozone study, explained that researchers analyzed health records of 448,850 people in the American Cancer Society database for a period of 18 years. The volunteers lived in 96 cities.
The researchers found that, just as with soot, people in the smoggiest cities die prematurely.
It remains the only study to find "a long-term effect on mortality from ozone," Jerrett said.
In a 2011 letter published in Environmental Health Perspectives, Goodman described the work as "an uncorroborated study that likely misinterpreted the findings regarding ozone effects." Jerrett was not given the opportunity to respond.
"I felt that that letter was not following the normal conventions that we would use for scientific debate in the literature," he said.
The ozone study was published in 2009 in the venerable New England Journal of Medicine. Jerrett said it went through two rounds of peer review with more than 50 pages of questions and another 40 pages of responses.
"I don't think we've misinterpreted the findings at all," he said.
Gradient in the courts
Gradient doesn't just take on high-profile targets like Harvard researchers. It also helps companies defend themselves against ordinary people like Pam Collins, a high-school graduate from Bellevue, Ohio.
In 1965, at age 21, Collins landed a good-paying job at the General Electric lightbulb plant in Bellevue.
"She was a hard worker. Didn't take any shortcuts," recalled Gail Veith, who worked alongside Collins.
General Electric's former light-bulb plant in Bellevue, Ohio, where Pam Collins worked and wore asbestos gloves every day. Photo via lamptech.co.uk
For 14 years, Collins' job was to stamp the GE monogram on the tops of quartz light bulbs used in projectors. Every 15 minutes, she would tug on a pair of gray, fuzzy gloves and push trays of the bulbs into an industrial-grade oven so the ink would dry.
The gloves were dusty. "When we would throw them off, over on the table, you could see little stuff coming off of them," she said years later.
A recession in the early 1980s hit factories in Ohio especially hard. By 1985, GE had shut down the lightbulb plant.
Years later Collins suffered from fluid buildup in her lungs, one of which collapsed. On October 1, 2007, Collins's doctor told her she had mesothelioma; her right lung was removed not long afterward at the Cleveland Clinic.
Collins was miserable at that point, said her brother, Tom Smith. She couldn't catch her breath. She was always tired.
"I don't think she ever recovered from that surgery," recalled her youngest son, Jason. "She just whittled away."
Jason had his mother move in with him for a while. She weighed only 98 pounds and needed help just to stand in the shower. Eventually, Jason felt he had no choice but to put her in a nursing home. He teared up talking about it.
As it turns out, the dusty gloves Collins had used at the GE plant were made of asbestos. She knew that at the time but trusted the company not to expose her to anything that could make her sick. Her son says she would get emotional thinking about how she was betrayed. She sought out a law firm in Cleveland for help with the bills. One of the lawyers on the case was Shawn Acton, who had been trying mesothelioma cases for years.
Pam Collins before her diagnosis of mesothelioma. Photo via Jason Collins
Pam Collins after being diagnosed with mesothelioma. Photo via Jason Collins
Collins' lawsuit started out routinely. But it quickly became like no other case Acton had tried. He remembers reading a report from a scientist hired by the law firm defending the manufacturer of the gloves. The report, written by Valberg, said:
First, to a reasonable degree of scientific certainty, Ms. Pamela Collins' described use of asbestos gloves most likely did not cause or contribute to her developing pleural mesothelioma.
Second, to a reasonable degree of scientific certainty, Ms. Collins' carcinogen and radiation dose from her exposure to tobacco smoke most likely did increase her risk for developing pleural mesothelioma.
"I almost fell out of my chair," Acton said in a recent interview. "I've cross-examined some of the best defense experts in the country. And I've never heard even the most hardcore advocate for the defense ever claim that smoking causes mesothelioma. Nobody has ever gone that far before Peter Valberg."
Acton did a little research and discovered that Valberg had just co-authored an article in the Journal of Environmental Radioactivity saying that cigarette smoke emits radiation. And he noticed that the article was funded by the law firm representing the maker of the gloves.
Acton had no idea that months earlier a lawyer at the firm, Evan Nelson, had concocted the scientific theory that Valberg was using against Collins. Or that Valberg and colleague Goodman had emailed drafts of the article in advance to the lawyer, as their contract required.
Acton flew to Boston in April 2009 and deposed Valberg under oath, asking why he had written the article and why the defense firm had paid for it.
Valberg: So because I'm interested in the risk factors of radioactivity, and Julie Goodman is a molecular biologist … we both felt this was a useful piece of work to put out there and see what the rest of the scientific community might say about it. …
Generally, these articles require more time than we actually bill to a company. So Gradient contributes to these as an encouragement for people to do professional development. …
Acton: Who asked Tucker Ellis & West to contribute, as you put it, to the funding of this article?
Valberg: We said, 'This is work we can do.' So we asked them to contribute. …
Acton: Did you discuss aspects of the article with anyone at Tucker Ellis & West before it was published?
Valberg: No. I mean, they knew we were working on it. They didn't have drafts. They didn't make comments, scientific comments, and so forth.
Q. So you never sent a document to Tucker Ellis & West in draft form before that article identified as Plaintiff's Exhibit 24 was published?
A. Not to my knowledge, no.
Acton would not learn until years later that what Valberg said was not true.
Damning emails
A few days after that testimony, David Durham, a 67-year-old retired electrician in Louisville, Kentucky, would be diagnosed with mesothelioma. Durham had been exposed to asbestos through work he did at some of Louisville's biggest factories, his lawyers alleged in a lawsuit.
But a physician testifying on behalf the companies blamed Durham's mesothelioma in part on radiation treatments he received for cancer in 1967. The doctor relied on a few articles recently published in scientific journals, including one in Cancer Causes and Control. The authors of that review included Goodman and Valberg."This is not the way real science works. It doesn't start with a lawyer coming up with a theory"
When Durham's lawyers, Hans Poppe and Joseph Satterley, realized that this article was funded by Tucker Ellis & West, one of the law firms for the defense, they decided to subpoena all records the firm had about that article.
They were stunned when they started reading the 498 pages of emails between Nelson, Valberg and Goodman.
"This is not the way real science works. It doesn't start with a lawyer coming up with a theory," Poppe said.
Nelson told the Center that his former law firm should not have released the emails because they were confidential under attorney-client privilege. He is suing Tucker Ellis & West for damages. He said the firm didn't release other emails showing he didn't want Gradient to publish anything unsupported by science.
Nelson acknowledges that the science used in asbestos lawsuits can be twisted.
"In one way I'm glad that I'm out of asbestos litigation because I think there's a lot of corruption in it," including on the part of lawyers working for mesothelioma victims, he said. "I've heard other attorneys telling experts 'This is the opinion I'd want you to have.' "
Nelson said he never did such a thing, and doesn't think Gradient did anything improper in the Collins case. Still, he said, no law firm wants to hire him because opposing counsel could always say, "Look what Nelson did over here, and he's trying to do the same thing here."
The emails revealed that Valberg and Goodman had trouble getting the three Nelson-commissioned articles published in journals. Two of the three eventually were accepted. But the article linking cigarette smoking to mesothelioma never made it into print.
The first sentence of that article said, "Cigarette smoking may increase mesothelioma risk in individuals not exposed to asbestos."
In a deposition, Goodman tried to distance herself from the notion that she simply agreed to publish Nelson's scientific theory. A lawyer for a mesothelioma victim asked Goodman if the source of the funding had had any influence on the article.
Goodman: No, and that should be obvious by the fact that our opinions are different than those of Evan Nelson in many cases.
Poppe: In what way?
Goodman: Well, for example, he believed that the epidemiology evidence showed an association between smoking and mesothelioma, and we did not conclude that.
The manuscript Goodman and Valberg wrote concluded there was data suggesting that cigarette smoking causes mesothelioma, in keeping with Nelson's theory. Goodman and Valberg conceded that no study of smokers had ever shown the link, but said such studies were statistically weak because they didn't include enough smokers.
One of the scientists asked to review the manuscript for the journal Human and Ecological Risk Assessment didn't buy this explanation. "NOT TRUE," the reviewer wrote in all caps.
As a standard practice, peer-reviewed journals send manuscripts to other scientists, who comment anonymously and recommend for or against publication. In this case, all three reviewers gave the article a thumbs-down.
Another reviewer said, "The logic in this paper is very fuzzy."
And the final reviewer said, "This paper presents what I consider a highly biased review of the evidence that tobacco exposure is associated with an increased risk of mesothelioma. I strongly suspect the authors must work with someone with a strong financial interest in this subject. … The evidence that tobacco smoke is associated with mesothelioma is if anything extremely weak, and hardly convincing."
Even Nelson questioned Goodman's commitment to getting the paper published. "I don't know how hard she tried," he said.
Goodman continues to testify in mesothelioma lawsuits and write articles exonerating asbestos. Citing other industry-funded research, she wrote in 2013 that the most common form of asbestos — chrysotile — wasn't responsible for higher rates of mesothelioma and lung cancer in electricians.
This has become a standard defense in asbestos cases. The position is rejected, however, by most of the scientific community. In 2012, the International Agency for Research on Cancer, part of the World Health Organization, concluded that all forms of asbestos cause mesothelioma. That same year, a coalition of nine epidemiological organizations issued a joint statement calling for a worldwide ban of asbestos.
"Numerous well-respected international and national scientific organisations, through an impartial and rigorous process of deliberation and evaluation, have concluded that all forms of asbestos are capable of inducing mesothelioma, lung cancer, asbestosis and other diseases," the statement said.
At the time, Goodman served on the board of directors of one of the organizations, the American College of Epidemiology, which endorsed the statement. Behind the scenes, she tried to prevent it from being issued. After reviewing a draft, Goodman wrote:
"I do not think this document accurately reflects the science. Before I go on, I would like to mention that I am involved in asbestos litigation. While I understand that some may perceive my position as biased, I feel that it puts me in the position of being quite familiar with the most up-to-date science."
Goodman went on to argue that there is a "safe dose" of asbestos.
She was outvoted by her colleagues on the board. The statement wound up being endorsed by 227 public-health organizations and experts.
The following year, citing other industry studies, Goodman again asserted in Regulatory Toxicology and Pharmacology that there is a safe dose of chrysotile asbestos. In the same article, she contradicted the work she did for Evan Nelson, writing that "smoking has not been associated with mesothelioma."
Pam Collins's lawyer said efforts by industry consultants to absolve asbestos of blame show they will say almost anything.
"Why are some of these companies putting so much money into research to be published in scientific and medical journals years and sometimes decades after they stop making the product?" Acton asked rhetorically. "Is its purpose for the advancement of medicine? Is its purpose to address a public health concern? Its purpose is for litigation. It's science for sale."
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High Levels of Phenolic Compounds Found in Calif. Firefighters
Feb 8, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Results of a new study have found average levels of benzophenone-3 to be five times higher in a group of Southern California firefighters than those detected in the general U.S. population.
Benzophenone-3 (CAS No. 131-57-7), or BP-3, is used in sunscreen and other personal care products, plastic packaging for consumer products, and protective coatings.
The Biomonitoring California project released a summary of the study of 101 firefighters, Feb. 3. Recently published in the Environment International science journal, the study is part of a broader project by Biomonitoring California and the University of California, Irvine to assess firefighters' occupational exposure to toxic chemicals.
In the study, researchers looked for exposure to phenolic compounds, including BP-3, bisphenol A (CAS No. 80-05-7), triclosan (CAS No. 3380-34-5) and parabans. Researchers measured the chemicals in urine samples and collected demographic and exposure data from medical records and questionnaires.
“Our results indicate pervasive exposure to BP-3, BPA, triclosan and methyl paraben in this population of firefighters,” according to the scientists. The chemicals are either known or suspected endocrine disrupters that may adversely effect development and reproduction, the researchers say.
BPA is found in the linings of food and drink cans, hard plastic containers, plastic food wrap and even in some cash register receipts. Triclosan is an antibacterial agent used in liquid hand soaps, some toothpastes and consumer products, like cutting boards, toys, clothes and paints. Parabens are found in personal care products, cosmetics, and some household products.
Researchers said the high levels of BP-3 found in the firefighters was “unexpected.” The concentrations were elevated across all age groups, but highest among the 35-39 year olds, which is consistent with a subgroup in the 2009-10 National Health and Nutrition Examination Survey (NHANES). Biomonitoring data collected by the Centers for Disease Control and Prevention in the NHANES survey found BP-3 in nearly all the people it tested, indicating that exposure to the chemical is widespread.
“The markedly elevated BP-3 levels in our firefighter population compared to the NHANES could suggest a possible occupational source of BP-3 exposure,” according to the researchers. “Plastic components of personal protective equipment used by firefighters may contain BP-3 as an ultra-violet stabilizer. Another potential source of exposure to BP-3 could be protective clothing, such as firefighter turnout coats treated with UV-resistant chemicals.”
Firefighters also may be exposed to BP-3 through polymers used in polyvinyl chloride roofing and hoses, acrylic paneling, adhesives and coatings such as lacquers, varnishes and oil-based paints, the study says.
“It is unclear whether the elevated levels identified are due to use of particular products, other exposures associated with California residence, or occupational exposures,” researchers said. Additional studies are needed to investigate possible explanations, they added.
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Utility Wins Free Speech Case Over Warning Sign Law
Feb 8, 2016 | BNA Daily Environment Report
A town ordinance requiring an electric power utility to post health warning signs on its chemically treated wood poles violates the company's First Amendment right to noncommercial speech and may not be enforced, a federal district court in New York has ruled (PSEG Long Island LLC v. Town of N. Hempstead, 2016 BL 30993, E.D.N.Y., No. 15-cv-00222, 2/3/15).
The placards required under the law passed by North Hempstead, N.Y., to warn of pentachlorophenol and chromated copper arsenate (CCA) in the poles were unrelated to the commercial activities of PSEG Long Island LLC and fail under the stricter test for noncommercial speech, the U.S. District Court for the Eastern District of New York said in the Feb. 3 decision.
The ruling granted summary judgment to PSEG and permanently barred enforcement of the law. The ordinance was passed in 2014 over concerns about the toxicity of the wood preservatives used in utility poles. But the town went too far, the district court said.
EPA Findings in 2008
PSEG supported its injunction request by relying, in part, on findings in 2008 by the Environmental Protection Agency that residential exposure to pentachlorophenol and CCA in wood utility poles didn't result in “unreasonable adverse effects” from the chemicals. The company also asserted that other wood structures in town—such as walkways and pilings—contained similar chemicals but weren't covered by the law.
The court struck down the law applying a “strict scrutiny” test, rather than the more lenient standard applied to commercial speech, because the law's purpose was untethered from PSEG's business interests.
“Simply stated, the warning signs bear no discernible relationship to the Plaintiff's products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine,” the court said, adding that no other local or state law imposed similar constraints on a public utility.
There also was no evidence the town failed to use less-restrictive means to communicate its warning to the public, the court said.
Nor could the town save the ordinance because PSEG is part of the highly–regulated energy industry.
“To accept that premise would allow the Town to circumvent the First Amendment rights of non-government speakers simply by regulating their business activities,” the court said.
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The New Microbead Ban Won’t Solve the Microplastic Pollution Problem
Feb 7, 2016 | TakePart
By Emily J. Gertz
A new study linking microplastic pollution to low reproductive rates in Pacific oysters underscores the need to overhaul the use of petroleum-based plastics, according to a leading American ecotoxicologist.
“The reason why we study these species is because we know they’re indicators for what is happening to us,” said environmental chemist Sherri Mason of the State University of New York at Fredonia, whose work has documented widespread microplastic contamination in aquatic ecosystems. “People are ingesting microplastics when they eat shellfish and other seafood.” Advertisement
In the new study, researchers in France exposed Pacific oysters for two months to water contaminated with microplastics smaller than a fifth of an inch across, at a concentration that equalled the amount found in the Great Pacific Garbage Patch.
They found that compared with oysters grown in plastic-free water, the exposed oysters produced fewer and smaller egg cells, slower-moving sperm, and fewer, slower-growing offspring.
“We know that filter-feeder animals, animals that filter water to catch plankton, they are particularly vulnerable to this kind of pollution,” said the study’s lead author, marine biologist Rossana Sussarellu of the French Research Institute for Exploitation of the Sea in Nantes, France. “So we can assume that other shellfish, like clams and scallops, are also at risk.”
The study adds to growing evidence that microplastic pollution can harm animals at the bottom of the marine food chain and has entered the human food supply.
“We have a lot of data indicating that while the microplastics don’t immediately kill organisms, they can pass them on to other animals,” Mason said. “As they get ingested by other organisms, say a fish, it’s not able to move as quickly, and it’s going to be more easily captured by a predator, and then it’s passing on all the plastics and the toxins that are associated with those plastics to the predator.”
In 2013, researchers reported that lugworms, a burrowing animal sometimes called the earthworm of the ocean, consumed less food and were less energetic when they lived in sediment highly contaminated with microplastics.
Scientists found in a 2014 study that when a tiny, freshwater crustacean called daphnia ate microplastics, 68 percent of its offspring were malformed.
In another 2014 study, Belgian scientists reported finding microplastics in mussels and oysters cultivated for human consumption—enough to expose European consumers to up to 11,000 pieces of microplastic a year.
Researchers last year reported finding microplastics in sea salt on the shelves of supermarkets across China.
The risks to human health go well beyond the potential gross-out factor. That’s because microplastics in the environment absorb persistent organic pollutants that can cause cancer and harm reproductive health, including PCBs—polychlorinated biphenyls, once widely used in electrical equipment—and PAHs, or polyaromatic hydrocarbons, which are byproducts from burning fossil fuels.
In 2015, researchers reported finding microplastics contaminated with phthalates, brominated flame-retardants, and other persistent pollutants in more than 18 percent of Mediterranean bluefin, albacore, and swordfish sampled.
“The plastics become like little poison pills,” Mason said. “As they are ingested, all those chemicals are ingested,” and once in the moist, warm confines of an animal’s digestive system, “those chemicals will tend to de-sorb from the plastic and get stored in their fatty tissues.”
Last year, environmental experts at the United Nations recommended a global ban on microbeads in personal care and cosmetic products, citing the harm microplastic pollution is causing to marine life.
Several European nations have called for a EU-wide ban on microbeads, including the Netherlands, which enacted a ban in 2014.
The Canadian government announced plans to ban microbeads in July. Advertisement
Mason’s own work, which has revealed that the Great Lakes are highly contaminated with microplastics, helped spur Congress in 2015 to pass a federal ban on plastic microbeads in toothpaste, face wash, and other consumer products. Researchers have estimated that 8 trillion microbeads enter aquatic ecosystems every day in the United States alone.
President Obama signed the measure into law, giving companies nearly two years to fully phase out microbeads.
Mason called it “an incredible first step” but noted that microbeads are not the major source of microplastic pollution.
Microplastics also form as larger pieces of plastic break down in the environment. “A plastic bag is in use, on average, for 12 minutes, and will be alive in the environment for 100 years,” Mason said.
A 2011 study showed that the polyester fleece and other plastic fabrics shed microscopic plastic fibers when washed. The researchers behind that study found plastic microfiber contamination on 18 shoreline sites across six continents.
Mason believes solving the microplastics crisis means replacing most petroleum-based plastics with safe materials. “I think the big movement is in finding plastics that can come from renewable resources,” she said, and “truly biodegrade when they’re released in the environment, regardless of where they’re released.”
“Microplastics are just so incredibly small, and so enmeshed in the life of the ecosystems where they exist, that you can’t clean up the plastic without destroying the ecosystem you’re trying to save,” she said. “You’re mostly talking about letting Mother Nature do what Mother Nature does” by breaking down contaminants in ecosystems over time.
The Earth “has been here for 4.5 billion years,” she added. “It’s quite robust in its own way and good at taking care of itself, if we give it the opportunity. What we have to do is lessen our impact.”
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EPA Rejects Expanded Railroad Tie Non-Waste Determination In Final Rule
Feb 5, 2016 | InsideEPA
By Lara Beaven
EPA has finalized, largely unchanged, a rule to allow three categories of materials to be burned as fuel without triggering stringent hazardous waste combustion emissions requirements, rejecting an industry push to expand the types of preservative-treated railroads covered by the rule.
The agency says it will consider adding the other railroad ties through a separate rulemaking, although it notes it would be unable to finalize the rule by Jan. 31, 2016, which is a Clean Air Act compliance deadline for existing boiler units and the date by which facilities would need to make decisions on fuel use.
The final rule, scheduled to be published in the Federal Register Feb. 8, adds certain construction and demolition wood, creosote-treated railroad ties (CTRTs) and paper recycling residuals to the list of non-hazardous secondary materials (NHSM) that can be used as a non-waste fuel.
The additions to the list of Section 241.4 Categorical Non-Waste Fuels will create new categories of non-waste fuels under the NHSM Resource Conservation and Recovery Act rule. Section 241.4 refers to the portion of the Code of Federal Regulations where the criteria for determining materials are categorical NHSM are found.
Industry criticized the proposed rule for limiting CTRT combustion to units that can burn both oil and biomass, saying it would likely result in an increase in fossil fuel, such as coal, at other types of units that would otherwise choose to burn CTRTs.
Under the proposed rule, EPA said CTRT would be listed as a categorical non-waste when combusted in units that burn both fuel oil and biomass. But the agency added that it was considering also allowing the listing to include CTRTs combusted in existing units at major source pulp and paper mills that had been designed to burn fuel oil and biomass, but are being modified in order to use clean fuel such as natural gas instead of fuel oil.
In the final rule, EPA says it is adopting the additional approach with some revisions. These include CTRTs that are processed and combusted in units at major pulp and paper mills or units at power production facilities subject to the boiler maximum achievable control technology air toxics regulation; changing the 40 percent fuel load limit to an annual heat input basis; allowing combustion in units that had switched to natural gas as part of normal operations and not solely for start-up or shut-down operations; and including hybrid suspension grate boilers to the list of acceptable boilers.
Industry Request
A coalition of industry groups had pressed EPA to include railroad ties treated with both creosote and borate in the rule, saying that newer railroad ties are commonly treated with both preservatives, so if EPA does not expand the definition to include both preservatives, "the utility of the [creosote treated railroad ties] non-waste listing may be short-lived.”
The Treated Wood Council (TWC) last year said EPA staff had indicated that due to comments on the pending rule, "EPA was planning to take favorable action to add CB dual-treated ties to the categorical non-waste determination for creosote-treated rail ties.”
But an EPA spokeswoman said TWC was mischaracterizing EPA's discussions and that the agency's "position will be fully explained" in the rule's preamble.
In the final rule, EPA says it disagrees that the definition of CTRTs should be expanded to include dual treated creosote and borate ties (dual-treated ties) because the data received to support such an expansion was limited to a single data point. “As the record indicates in previous categorical determinations, including CTRTs, multiple unique analytical data points were considered in making categorical determinations,” EPA says.
The agency however, says it could revisit that determination in the future should additional data be made available. “Further, not including dual-treated ties in this rule’s CTRT categorical determination does not necessarily preclude suppliers from determining that dual-treated ties are non-wastes,” the agency says. “Instead of relying on this rule’s categorical non-waste determination, the suppliers can instead follow the procedures outlined in 40 CFR 241.3 to make a non-waste determination specific to their product.” Additionally, EPA says that based on the information TWC has provided to the agency, it believes that creosote boarate, copper naphtentate and copper naphtenate-borate ties “are candidates for categorical non-waste listings and expect to begin development of a proposed rule . . . regarding those listings in the near future.” But this rulemaking will not be complete by Jan. 31, 2016, the deadline for facilities to make fuel use decisions, EPA says.
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Feb 4, 2016 | Lexology
The Environmental Protection Agency (EPA) is required by Section 108 of the Comprehensive Environmental Response, Compensation, and liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA), to establish financial assurance and responsibility rules for classes of facilities that are associated with the production, transportation, treatment, storage or disposal of hazardous substances. Despite the deadlines provided by the law, more than 30 years have passed without any rules or proposed rules being published by EPA.
In May 2015, the District of Columbia Court of Appeals heard oral arguments on a petition for writ of mandamus filed by a number of environmental organizations that, if granted, would force EPA to abide by Section 108. The Court of Appeals ordered EPA to expedite its rulemaking schedule for the first class of industries it has chosen to examine, the hardrock mining industry. EPA was also ordered to prepare a schedule by which it will determine if similar financial responsibility rules should be proposed for the chemical manufacturing, petroleum and coal products, and electric power generation, transmission and distribution industries. At that time, the Court of Appeals also noted that it had not determined whether any of the petitioners for the writ of mandamus had Article III standing. That changed on January 29, 2016.
On January 29, the Court of Appeals, in In re: Idaho Conservation League, et al., issued a ruling which approved a joint motion by the environmental petitioners and EPA for an order on consent to resolve the petition for writ of mandamus and a schedule by which EPA will conduct appropriate rulemaking proceedings in the future. The Court of Appeals also confirmed that the petitioners have Article III standing to pursue these claims. The motions for leave to intervene in these proceedings filed by representatives of the Superfund Settlements Projects, the American Chemistry Council and API were denied.
The Court of Appeals released an Order which provides: a Notice of Proposed Rulemaking (NPRM) on financial assurance requirements for the hardrock mining industry will be published by EPA in the Federal Register by December 1, 2016, with a notice of the EPA’s final action to be published in the Federal Register by December 1, 2017;EPA will publish a “determination” in the Federal Register by December 1, 2016 whether it will issue a similar NPRM regarding the chemical industry, the petroleum and coal products manufacturing industry and the electric power industry; andif EPA decides to proceed with these rulemakings for the other industries, (i) the NPRM for the “first additional industry” will be published in the Federal Register by July 2, 2019, and EPA will publish a notice of its final decision in the Federal Register by December 2, 2020, (ii) the NPRM for the “second additional industry” will be published by December 4, 2019 , with the notice of final action published by December 1, 2021, and (iii) the NPRM for the “third additional industry will be published by December 1, 2022, with notice of the final action published in the Federal Register by December 4, 2024.
These deadlines may be extended or modified upon the filing of a joint motion by the parties. If EPA seeks an extension the environmental petitioners oppose, then EPA may file a motion with the court for an extension of time.
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Offshore Well-Control Rule Goes to OMB
Feb 8, 2016 | BNA Daily Environment Report
By Alan Kovski
A final rule to toughen the regulation of offshore oil and gas exploration work was sent to the White House Office of Management and Budget on Feb. 3 for the start of interagency review.
The well-control rule, also referred to as the blowout-preventer rule, was written by the Bureau of Safety and Environmental Enforcement, an Interior Department agency, to update a number of regulations to minimize the risk of a loss of well control during work on the Outer Continental Shelf.
Regulations to enhance safety and reduce the risk of oil spills or other accidents have been enhanced more than once since the 2010 Deepwater Horizon disaster, when BP Plc lost control of the Macondo well in the Gulf of Mexico.
The well-control rule was designed in part to require the latest best technologies developed by the industry itself. In its proposed form, it was the subject of industry comments cautioning that some parts of it may need to be modified. Industry has been concerned about how readily some equipment can be replaced by better equipment.
In testimony to Congress in December, Erik Milito, director of upstream and industry operations for the American Petroleum Institute, said his organization supported much of the proposed rule (RIN 1014-AA11) and only wanted to see improvements in some areas to make it practical and a cost-effective rule in its final form (231 DEN A-9, 12/2/15). Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-language:AR-SA;}
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Liquefied Natural Gas Exports Signal A New Era Of US Energy
Feb 5, 2016 | The Hill - Contributors
By Margo Thorning
The next few months will mark a significant time in the history of America's complex bond with natural gas. This month, Cheniere Energy announced they will commence the loading and transport of the first shipment of liquefied natural gas (LNG) exports to Europe from their Sabine Pass terminal in Louisiana. Costing between $9.9 billion and $11.2 billion over more than a decade, Sabine Pass is the first of its kind to be built in the U.S. in nearly 50 years. This shipment — set to depart U.S. shores in March — signals a change in the realities of U.S. energy. From a country that was once importing the majority of our supply and constructing billion dollar natural gas import terminals, we are now embracing a new paradigm as a net natural gas exporter.
Over the past three years, I have written extensively on the overall benefits of LNG exports, including the economic benefits of expediting the current federal permitting process and public interest determination by the Department of Energy. And as we transition into 2016, it is imperative we continue to encourage lawmakers to act on this historic opportunity, before it is too late.
The United States is truly in the middle of an energy renaissance. Overall, the United States has the fourth-largest technically recoverable shale gas reserves in the world and is the world's largest natural gas producer. As a result, U.S. prices have dropped to historic lows and supplies have stockpiled. But the slow pace of federal permit approvals by the Federal Energy Regulatory Commission (FERC) and the Department of Energy (DOE) could be a serious threat to our thriving natural gas industry and the significant economic benefits that could come to fruition as a result of exporting LNG.
A new study out by Rice University — commissioned by the DOE — indicates the macroeconomic benefits of even large quantities of U.S. LNG exports are a net positive for the U.S. economy. In fact, the report concludes that the impact of increasing exports from 12 billion cubic feet per day (Bcf/d) to 20 Bcf/d between 2026 and 2040 could add $7 billion to $20 billion annually to U.S. gross domestic product (GDP). The new study validates the importance of unleashing the power of U.S. markets to determine the most feasible projects to ensure economic benefits are achieved. But this economic windfall is likely contingent on our ability to have a streamlined and efficient federal decision-making on LNG export terminals.
Exports of U.S. LNG are key to keeping our domestic production — which fuels substantial economic revenues, jobs and incomes — on its upward trajectory. With domestic production significantly outweighing domestic demand for natural gas, limiting U.S. LNG exports would not put more volume of natural gas in our domestic market, but likely stifle investment and job growth in the natural gas sector and in supporting industries.
Not only are exports vital to encouraging continued production of shale resources here at home, the U.S. also faces steep competition in the global LNG market and we could miss out on a window of opportunity to fill international demand with U.S. resources. Though forecasts point to global demand for natural gas increasing over the next decade, especially with 195 countries committed to reducing greenhouse gas emissions in the second half of this century, current LNG markets are limited. Major natural gas trading partners like Japan have cut their LNG imports by over 10 percent last year. And with 48 competing LNG export projects planned or under construction across the globe, now is the time to act.
For example, Australia will have two new terminal projects online in the first half of this year; Mozambique could become the world's third-biggest LNG exporter after Qatar and Australia, especially if it hits its gas production peak.
Though momentum in Washington to address this problem of languishing permits has stalled since House passage early last year, the Senate has a new opportunity in 2016 to revive this legislative goal: a broad energy bill that includes language to streamline LNG export application approval. Unfortunately, this bill was held up in the Senate yesterday although both sides have pledged to keep working toward final passage. The leader on this legislation, Sen. Lisa Murkowski (R-Alaska), has been a long-time champion of LNG exports, educating other members on how we urgently need to clear out the regulatory underbrush that is hindering American LNG exports.
Over 30 export applications to countries without a U.S. free trade agreement are still awaiting federal action. This means there are thousands of jobs and billions of dollars in investments waiting on the sidelines for federal approval. The Obama administration should grant permits for all remaining LNG export applications if we wish to not only hold our position as a leading producer and reap the economic benefits, but also maximize the opportunity this energy renaissance has afforded our nation.
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House Panel Prepares for Bills on Energy, Lands
Feb 8, 2016 | BNA Daily Environment Report
By Alan Kovski
The House Natural Resources Committee has substantial work to do in 2016 on public land management and energy policies, Rep. Rob Bishop (R-Utah), chairman of the committee, told Bloomberg BNA.
The committee is about to start drafting a bill to help Puerto Rico step back from its fiscal cliff. That bill should include creative solutions for the island's economic problems, including the exceptionally high energy prices that are driving manufacturing away from the island, Bishop said Feb. 3.
Fees on federal lands will be a subject for action, as will a centennial parks bill, and a number of local land transfers probably will be pulled together as a package, he said.
Fishing regulation, perhaps surprisingly, is still a matter of controversy, partly because of overlapping or confused federal and state regulatory jurisdictions, and that will produce some legislation, Bishop said.
The chairman said he wants his committee to be more proactive rather than reacting to policies and regulations coming out of the Obama administration. In the proactive category he may include his Utah lands bill to revamp federal, state and local land management in a detailed set of trade-offs. That bill, now a discussion draft form, might serve as a template for other states, he said.
Along with those efforts are various difficult regional and national issues he wants to see addressed. Some are urgent.
Waiting for Senate
Bishop summarized a few of the biggest and most-pressing issues not in terms of action but rather a kind of frustrating inaction—waiting for the Senate.
The House Natural Resources Committee and the full House in 2015 passed legislation to address forest management, including wildfire fighting, and water management, including drought response. Later in the year, the Energy and Commerce Committee and the full House passed a bill to address natural gas exports, electric grid reliability and a variety of energy efficiency measures.
The House is still waiting for the Senate to respond.
The ongoing effort on the Senate floor to pass a wide-ranging energy bill (S. 2012) is the closest to a response so far. It could prove to be the legislative vehicle for many kinds of changes in the energy sector, although senators were unable to wind up work on the bill in the first week of February (24 DEN A-5, 2/5/16).
“The Senate is dealing with an energy bill now. We'll see if that actually passes and comes over here,” Bishop said. “If it does, that gives us a vehicle.”
The best strategy would be to take the energy bill into a House-Senate conference and work out a good result, he said. There are things in the Senate bill that House members would like to delete as well as things they would like to add, he said.
Action Wanted on Water, Drought
Bishop's committee produced the Western Water and American Food Security Act of 2015 (H.R. 2898), passed by the full House July 16 to deal with water management and drought response. Sens. Dianne Feinstein (D-Calif.) and Barbara Boxer (D-Calif.) wanted a bill less likely to raise objections over environmental impacts, especially impacts on endangered fish species.
Feinstein introduced her own bill in July (S. 1894), then negotiated with House Republicans into December on compromises, but finally pulled back in December without ever getting a Senate committee vote on her bill. In January, she started again with a discussion draft (14 DEN A-17, 1/22/16).
“On water it's a matter of actually getting the Senate to be willing to move forward on the issue,” Bishop said. “The reality of the situation is going to compel them to do that. There has to be some kind of movement. People are in too dire of straits for them not to.”
Bishop said it will be a bill affecting the western United States, not a purely California bill. Similar remarks have been made by Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, where action on the Feinstein bill would have to start if it is to follow “regular order” as Feinstein has said it will.
Action Wanted on Forests
Bishop's committee also produced the Resilient Federal Forests Act of 2015 (H.R. 2647), passed by the full House July 9. Sen. John Barrasso (R-Wyo.) has proposed similar legislation, but the Senate Energy and Natural Resources Committee has not voted on anything (07 DEN B-25, 1/12/16).
“The Senate, to simplify it, just wants to put more money into the situation,” Bishop said, referring to firefighting funds. “They've been told repeatedly that's not going to work on the House side.”
He does expect Senate action, though not as soon as he would like. Additional motivation for action came from the 2015 wildfire season, when more than 10 million acres of forest burned, the worst year in more than half a century.
“Once again this is a situation which has to be solved in some way,” Bishop said. “It will compel them to move.”
To Republicans and some Democrats, legislation action will mean forest management—including logging—as well as wildfire management.
Land Use Changes for Utah
On land management policies, the House Natural Resources Committee will be looking at fees for land use, a perennial sore point for industries and individuals alike. A potentially more far-reaching legislative effort is starting with a detailed revision for public lands in Bishop's home state.
Bishop and Rep. Jason Chaffetz (R-Utah) have released a discussion draft of a Utah Public Lands Initiative Act (no number yet) that would involve much detailed compromise on assigning land to various uses—from wilderness to energy development—and in many places swapping state or local land for federal land (16 DEN A-14, 1/26/16).
It was immediately criticized by environmental activists, although it was the product of much negotiation and compromise with activists, local officials and state officials.
“They had their attack planned out before they actually saw the bill, and that irks me to no end,” Bishop said of some of the critics.
He said the plan would reserve 4 million acres for environmental conservation while devoting 1 million acres to economic development, yet there were complaints that a million acres for oil and gas development and other economic activity was too much.
“A four-to-one ratio. Give me a break,” Bishop said. “You have to accept the fact that you're not going to get everything you want, unless your goal is simply to hire more attorneys and keep your fundraising efforts.”
Immersion in Details as Strategy
Other states could follow the Utah strategy of highly detailed, extensive land-use changes if the bill gets through Congress—a big if. A few states already are moving in that direction, Bishop said.
“Wyoming, for example, a couple weeks ago started doing exactly the same thing we're attempting to do,” he said.
Bishop said he will move the Utah bill forward in 2016. Broader legislation is a more questionable matter.
Any big changes to the Federal Land Policy and Management Act, the National Environmental Policy Act or the Endangered Species Act are for the long term, Bishop indicated. Those three laws are among the most common used in litigation.
Basic updates of those laws will have to occur someday, Bishop said.
Small changes, in terms of procedural streamlining and categorical exclusions from NEPA analyses, have made it into some bills, including some that have become law for water resources and transportation.
“We're constantly looking at every bill that comes through as some kind of vehicle that can be useful in helping us to bring some kind of clarity to all these things,” Bishop said, referring to intricate regulatory requirements under all three bills.
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It's Make-Or-Break Time For Senate Package
Feb 8, 2016 | E&E Daily News
By Geof Koss
The Senate will resume consideration on the bipartisan energy package this afternoon, after negotiations continued over the weekend on the issue that brought debate to a standstill last week -- aid for thousands of Flint, Mich., residents poisoned by lead in the city's drinking water supplies.
Discussions over Flint and the 336 amendments that have been filed to the underlying bill, S. 2012, kept staff busy over the weekend, as senators look to end the logjam and finish the bill.
"We are absolutely forging ahead on the energy bill," Michael Tadeo, spokesman for Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), said Friday. "Senator Murkowski is committed to working with her colleagues to get it over the finish line." E&E RESOURCE
E&E's Amendment Tracker follows major pieces of legislation as they move through the amendment process. Click here to review the Senate energy reform legislation amendments being considered.
With the Senate poised to launch debate on a North Korea sanctions bill Wednesday morning under a previous agreement, lawmakers appear to have this afternoon and tomorrow to come to some sort of resolution on Flint and the slew of proposed amendments and move to final passage.
And with the chamber already spending a week and a half of floor time on the energy bill, it's unclear how much appetite GOP leaders have for extending the debate.
The Flint crisis snowballed on both sides of the Capitol last week, sparking a high-profile House hearing and bringing the energy debate to a halt in the Senate.
Flint has also crept into the fight for the White House, with Sen. Bernie Sanders (I-Vt.) and Hillary Clinton agreeing to hold a debate in the beleaguered city next month, ensuring the political stakes will remain high in the coming weeks (E&E Daily, Feb. 4).
Lawmakers last week said there are good-faith efforts on both sides to come to an agreement to help Flint residents, but aside from the political machinations, there are also philosophical hurdles in the way.
Noting the widespread prevalence of water infrastructure needs, Sen. Orrin Hatch (R-Utah) last week said Republicans are struggling with the appropriate response to the situation.
"And that's I think what's causing some of the problem because they don't want it to be just another rush for money for Democrats," Hatch said.
Senate aides say there have been countless iterations of proposals for Flint, but the five amendments that have been filed to the energy bill all would provide assistance from a mix of federal grant and loan programs to help fund water infrastructure upgrades.
A chief area of disagreement has been paying for the aid, which runs into the hundreds of millions of dollars under the various proposals.
One proposal by Sen. Debbie Stabenow (D-Mich.) would simply designate the cost as emergency spending exempt from pay-as-you-go budgeting rules, but that's a nonstarter for Republicans.
Two other Stabenow amendments (No. 1 and No. 3) would in part rely on transfers from the Leaking Underground Storage Tank Trust Fund -- which is intended to help pay for contaminated tanks at gas stations and elsewhere and has become an increasingly frequent target for pay-fors in recent years.
A proposal by Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) would authorize up to $600 million in loans under the Water Infrastructure Finance and Innovation Act program to any state that has been declared an emergency associated with lead contamination.
Additionally it would provide up to $200 million under the Safe Water Drinking Act's revolving loan program, which has already drawn renewed scrutiny in Flint's wake (E&E Daily, Feb. 5).
However, Stabenow rejected the proposal out of hand, citing its reliance on rescissions from the Energy Department's advanced technology vehicles manufacturing program as a pay-for.
A measure offered by Murkowski would make up to $550 million available for Flint, including $50 million immediately, but it also would rescind unspent funds from DOE's loan guarantee program -- an offset that Democrats and the White House may be reluctant to agree to.
Other issues
The Flint controversy ending up sidelining a host of other amendments, but the multitude of offerings provides a glimpse into senators' goals when presented with the rare chance to legislate on energy.
One notable proposal is an amendment proposed by Sen. Angus King (I-Maine) and Minority Leader Harry Reid (D-Nev.) that aims to protect consumers from higher rates under net-metering agreements.
Inspired by the state-by-state fights over rooftop solar playing out in Nevada and elsewhere, the amendment prompted strong pushback from utilities when it was unveiled last week (Greenwire, Feb. 2).
Reid took to the floor with King the following day to respond.
"The Koch brothers and their fossil fuel pals have attacked our blossoming clean energy industry at every turn," Reid said last week. "They've done it in state legislatures all over the country, and they're doing it today on this amendment that Senator King and I have worked on. They have turned loose their minions, their anti-consumer minions, and they're now out working against this amendment. And the utilities have joined the Koch brothers."
Other business interests, including the U.S. Chamber of Commerce and a coalition led by the National Black Caucus of State Legislators, have chimed in against the amendment as well.
While Murkowski and Washington's Sen. Maria Cantwell, the Democrats' floor manager, have allowed votes on controversial amendments from both sides (E&ENews PM, Feb. 2), the fate of several high-profile proposals, including to block the administration's new moratorium on coal leasing on federal lands, on coal ash disposal and on U.S. EPA's Clean Power Plan, remains up in the air.
Democratic Senate aides Friday said that the prospects for the pair of climate amendments were unclear as well (E&E Daily, Feb. 3).
The Flint standoff has also thrown a wrench into plans by both sides to use the floor debate to press their energy tax preferences.
Democrats on the Finance Committee last week filed an amendment that would consolidate 40 existing tax breaks into three technology-neutral provisions, reflecting a longtime project of Sen. Ron Wyden (D-Ore.), the panel's ranking member.
At the same time, the Democrats issued a letter urging Hatch, the Finance chairman, to hold a hearing on energy provisions in the tax code.
But while Sen. Brian Schatz (D-Hawaii) was able to secure a vote on his amendment to phase out fossil fuel tax breaks in concert with winding down incentives for renewables, questions raised by the Flint issue over a constitutional requirement that revenue bills originate in the House complicated efforts to set up votes on other tax amendments.
Sen. James Lankford (R-Okla.) said last week the "blue slip" issue had left him searching for a way to push forward his proposal to strike the renewable production tax credit from the code entirely after its current expiration in 2019.
"We've said 10 times that was the end, we're going to do it two more years, we're going to do it two more years, and now we've just said we're going to do it five more years, set up a glide path," he said of the PTC. "I just want to make sure the glide path is actually a glide path."
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States: Clean Power Plan Defies U.S. Supreme Court Rulings
Feb 8, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's Clean Power Plan is clearly unlawful and flies in the face of two recent U.S. Supreme Court decisions on application of the Clean Air Act, states opposed to the rule said in a brief asking the court to halt the rule's implementation (West Virginia v. EPA, U.S., No. 15A773, briefs filed 2/5/16).
The Supreme Court should take the unusual step of staying the rule before it has even been argued before an appellate court because the carbon dioxide standards for power plants would impose immediate burdens on state regulators and utilities that could not be recovered later if the rule were ultimately overturned following lengthy litigation, states opposed to the rule, led by West Virginia and Texas, told the court in the brief Feb. 5. The fact that the litigation is likely to end up before the Supreme Court regardless of how the lower court rules also argues in favor of staying the rule's implementation, they said.
“The states do not ask for this court's intervention lightly,” the states said. “But this case is truly extraordinary, given that the Power Plan imposes the largest burden the states have ever been asked by EPA to carry, on the basis of a rule that is flatly contrary to this court's recent caselaw when dealing with the same agency, and the same pollutants.”
Utilities, Groups File Brief
Several utilities and associated trade groups, including the National Rural Electric Cooperative Association, Tri-State Generation and Transmission Association Inc., Luminant Generation Co., Utility Air Regulatory Group and Westar Energy Inc., as well as the United Mine Workers of America and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers also argued in favor of staying the rule in a separate brief filed Feb. 5.
They argue it imposes immediate burdens on power plants because the EPA's own analysis predicts that nearly 70 percent of the necessary carbon dioxide reductions anticipated by the Clean Power Plan will be achieved before compliance begins in 2022. That is insufficient to site and permit the new renewable generation and associated transmission lines required to comply, the utilities 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. The standards would be phased in between 2022 and 2030.
After the U.S. Court of Appeals for the District of Columbia Circuit denied bids to stay the rule during the upcoming litigation, 29 states and state agencies as well as several utilities and industry groups petitioned the Supreme Court to block the Clean Power Plan (19 DEN A-1, 1/29/16).
Conflict With Prior Decisions
The states argue that the Clean Power Plan is directly in conflict with two recent Supreme Court decisions on application of the EPA's authority under the Clean Air Act.
In particular, they argue the Clean Power Plan “cannot be reconciled with” a Supreme Court decision that limited the scope of the EPA's greenhouse gas permitting program to only those large industrial sources that are already required to obtain Title V or prevention of significant deterioration permits for their emissions of conventional pollutants such as sulfur dioxide or nitrogen oxides (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014) ).
In that opinion, Justice Antonin Scalia cautioned the EPA that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy ... we typically greet its announcement with a measure of skepticism.”
The states argue that the Clean Power Plan requires regulators and utilities to take measures such as shifting electricity generation from coal-fired power plants to natural gas units or renewable energy producers that are not expressly allowed under Section 111(d).
The states also argued that the Clean Power Plan presents similar issues raised by the litigation over the EPA's Mercury and Air Toxics Standards. In that instance, the Supreme Court found that the EPA had failed to properly consider the costs to utilities when it made the decision that it was “appropriate and necessary” to regulate toxic pollutants from power plants under Section 112 of the Clean Air Act (Michigan v. EPA, 135 S. Ct. 269, 80 ERC 1577, 2015 BL 207163 (2015)).
Rule Remanded for Correction
The rule was ultimately remanded to the EPA for correction, and the agency has proposed an updated cost analysis. However, utilities had already made the investments necessary to install the required pollution controls, a point opponents of the Clean Power Plan have repeatedly raised (23 DEN A-1, 2/4/16).
“EPA also has no answer to the fact that in Michigan, the agency unlawfully extracted billions of dollars in compliance from power plants before this court could even review the rule, and is attempting to do so here again but on a much larger scale,” the states argued. “Left unstayed, the Power Plan will force massive and irreversible changes in terms of state policies and resources, power plant shutdowns and investments in wind and solar power.”
Both Sides Argue Case Unprecedented
The EPA, environmental groups, utilities and states supportive of the Clean Power Plan argued in briefs filed Feb. 4 that asking the Supreme Court to stay the rule at this stage, before the D.C. Circuit has even heard arguments on the litigation's merits, is unnecessary and completely unprecedented (24 DEN A-1, 2/5/16).
The utilities, in turn, argued that the EPA's rule is unprecedented and sufficiently illegal to warrant early intervention by the Supreme Court.
“Never before has EPA claimed such sweeping authority to reorganize an entire sector of the economy in the name of reducing emissions,” they argued. “Never has EPA interpreted its charge under Clean Air Act Section 111 to encompass not just requiring the reduction of plant level emissions through installation of pollution control technology, but also the forced retirement or curtailment of many existing sources coupled with the forced investment in new alternative sources that are not even regulated by Section 111. EPA's action is both unprecedented and unfounded, and it warrants this court's intervention.”
The D.C. Circuit has already scheduled oral arguments in challenges to the Clean Power Plan for June 2 and possibly June 3 as well. Arguments will be heard by Judges Karen LeCraft Henderson, Judith Rogers and Sri Srinivasan (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16).
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States, Industry Object to Power Plant Emissions Proposal
Feb 8, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
States and power industry organizations objected to the Environmental Protection Agency's proposal to require further reductions of nitrogen oxides from power plants under the Cross-State Air Pollution Rule.
The states and industry groups, in comments filed on the proposal, objected to the methodology used by the EPA to calculate the proposed emissions budgets for 23 states, which the agency said are needed to address power plant emissions that interfere with the ability of downwind areas to comply with the 2008 national ambient air quality standards for ozone of 75 parts per billion.
Many of the state and industry comments also objected to the EPA's proposal to require emissions reductions in 2017, a time frame they said is too soon to allow for adequate planning.
More Litigation?
The state objections could portend another round of litigation over the EPA's handling of emissions that cross state lines. While the U.S. Supreme Court in 2014 upheld the framework of the Cross-State Air Pollution Rule (CSAPR), the court also found the agency doesn't have the authority to require states to achieve emissions reductions beyond what is required to bring all affected downwind areas into compliance (EPA v. EME Homer City Generation LP, 134 S. Ct. 1584, 78 ERC 1225, 2014 BL 118432 (2014); 83 DEN A-1, 4/30/14).
The proposed rule (RIN 2060-AS05) would update the emissions budgets set under the CSAPR, which the EPA promulgated to fulfill a Clean Air Act provision requiring upwind states to control emissions that prevent downwind states from attaining or maintaining national air standards. The proposal, released in November 2015 and published in December, is projected by the EPA to reduce nitrogen oxide emissions by about 85,000 tons in 2017 at an annual cost of $97 million for the power sector (80 Fed. Reg. 75,706; 222 DEN A-11, 11/18/15).
While Janet McCabe, EPA acting assistant administrator for air and radiation, touted the proposal as using an established approach that has been upheld by the Supreme Court, many of the states that would be regulated under the proposal objected to the calculation of their pollution control obligations.
Objections to Emissions Caps
Several state agencies alleged the EPA's proposal would unreasonably overcontrol pollution on an unrealistic timeline. The proposal would require reductions in 2017.
Mississippi objected to the proposed 52 percent reduction of nitrogen oxides by power plants in that state. In its comments, Mississippi said the level of reductions proposed by the EPA “appears to be disproportionate” to the agency's modeling, which shows the state's emissions contribute less than 1 ppb of pollution to the Houston nonattainment area.
Iowa said in its comments that the EPA's proposal includes significant cuts to the state's emissions budget based on unrealistic predictions of power plant closures. The proposal includes an emissions budget for Iowa that is 48 percent lower than the nitrogen oxides cap that the state is currently subject to under the CSAPR.
Iowa also objected to the short implementation time frame to comply with the new emissions budgets, which the state said could force unplanned closures of power plants with no time to replace that lost generating capacity.
“Implementation should occur no sooner than two years after the final rule is effective to provide sufficient time for utilities, communities, families and employers to plan and execute their response,” Iowa said.
Other states that filed comments in objection to the EPA's proposed emissions budgets include Ohio, Wisconsin, Arkansas and North Carolina.
Legal Flaws Identified
Some of the parties who challenged the original Cross-State Rule filed comments identifying what they described as flaws in the EPA's proposal.
Homer City Generation LP, the operator of a Pennsylvania power plant and the lead petitioner in the challenge to the Cross-State Rule, argued in its comments that the EPA's proposal is “fatally flawed” for several reasons, including the agency's failure to comply with a court directive to avoid the overcontrol of power plants.
The U.S. Court of Appeals of the District of Columbia Circuit in July 2015 remanded some CSAPR emissions budgets back to the EPA after determining the agency impermissibly over-controlled emissions in certain states (EME Homer City Generation LP v. EPA, 795 F.3d 118, 80 ERC 2005, 2015 BL 239912 (D.C. Cir. 2015); 145 DEN A-6, 7/29/15).
While the EPA said its proposal addresses the D.C. Circuit's ruling, Homer City said in its comments that the agency failed to reconsider those invalid emissions budgets. The EPA also failed to examine why the agency's methodology resulted in impermissible overcontrol and failed to adequately explain how it will prevent the same thing from happening in its update rule, the utility said.
“Had EPA properly reconsidered the invalid emission budgets in accordance with the D.C. Circuit's instructions, we expect that the result would have been less stringent proposed budgets, not the more stringent budgets that EPA in fact proposes,” Homer City said.
The utility alleged the EPA's proposed reductions are not cost-effective, as the agency claims they are. The utility suggested there is no evidence that coal-fired power plants will be able to meet a more stringent emissions limit that would be required to comply with the proposal to lower the emissions budget for Pennsylvania.
Additional Complaints
The Utility Air Regulatory Group (UARG), a trade association that frequently challenges EPA regulation of the power sector, filed extensive comments highlighting alleged flaws in the EPA's proposal. The group said the proposal would fail to adequately respond to the D.C. Circuit's decision on remand in EME Homer City Generation LP and is based on inappropriate judgements by the agency.
In addition, UARG objected to the EPA's proposed inclusion of its Clean Power Plan regulation on power plant emissions of carbon dioxide in its “base case” for modeling power sector emissions. The use of base case that includes the Clean Power Plan would result in an assumption that an “enormous amount” of coal-fired power plants would be retired by 2018 that will not in fact be retired that soon, the group said.
UARG also was one of several parties to allege the EPA provided the public with an insufficient opportunity to comment on the proposal. The agency originally provided a 45-day public comment period, then extended that to 60 days after receiving several requests.
UARG said at least 90 days were necessary to allow all interested parties to analyze the “extraordinarily complex” technical information that accompanied the proposal.
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States, Industries Make Final Pleas To Supreme Court
Feb 5, 2016 | E&E News PM
By Robin Bravender
Dozens of states, utilities and coal groups today made their final arguments in an attempt to urge the Supreme Court to block the Obama administration's Clean Power Plan.
The request to the court to step in and block the controversial rule as a lower court weighs the case is widely seen as an unusual legal maneuver, but that shouldn't stop the court from taking action, a coalition of more than two dozen states led by West Virginia said in its filing to the justices.
"To be sure, requests of this Court for a stay of agency action pending review in the court of appeals appear to be rare. The States have not identified any case 'in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,'" the states' attorneys wrote.
Litigation over the rule is still pending before the U.S. Court of Appeals for the District of Columbia Circuit. Judges on that court refused requests to block the rule while the case proceeds.
However, the states said, "EPA and its intervenors have not identified a single instance where this Court has rejected such a request. Critically, there is nothing to suggest that the scarce precedent reflects anything more than that the circumstances rarely warrant the time and expense of seeking such a stay from this Court."
The states added that "the Power Plan is the most far-reaching and burdensome rule EPA has ever forced onto the States."
In a separate document to the court, utility groups responded to EPA's claims that a stay would be "extraordinary." This is "not an ordinary case. Never before has EPA claimed such sweeping authority to reorganize an entire sector of the economy in the name of reducing emissions," the groups said.
And coal industry groups warned the court that those seeking a stay will suffer from "irreparable harm" if the rule is allowed to go forward (see related story).
"Concrete evidence shows many examples of closures attributable to the Power Plan, as well as examples of long-term planning by utilities, which are currently making plant shut-down and resource decisions that will be implemented or made permanent in 2016."
Supreme Court Chief Justice John Roberts is weighing the arguments from both sides and is expected to issue a reply soon. He could act on his own or consult with his colleagues before deciding whether to grant a stay.
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Reality 'Contradicts' Utilities' Shutdown Claims -- EPA
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States, Utilities Again Press Supreme Court To Block EPA Carbon Rule
Feb 5, 2016 | PoliticoPro - Whiteboard
By Alex Guillén
The states asking the Supreme Court to block EPA’s Clean Power Plan today reiterated their request before Chief Justice John Roberts to block the rule while litigation plays out in a lower court.
They argue that the justices must step in to prevent another situation like the mercury rule — which the court last year faulted and sent back to EPA after the first compliance deadlines had already passed. They also cite a 2014 Supreme Court decision that struck down EPA's tailoring rule as agency overreach.
“The Plan will require States to spend thousands of hours and millions of dollars in the next year designing State Plans, while forcing them to change their laws and regulatory approaches,” the states write.
A coalition of utilities also repeated their request for a stay, arguing that the rule “is both unprecedented and unfounded, and it warrants this Court’s intervention.”
The Obama administration on Thursday filed its own defense, noting that the first compliance deadlines are in 2022 and that the Supreme Court has never before gotten involved with such a rule before the lower courts have reviewed it.
The D.C. Circuit last month declined to stay the rule, but ordered the case put on a fast track. Oral arguments are scheduled for June 2.
The Supreme Court has no deadline to make a decision on the stay requests, but a decision is expected within weeks.
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EPA Critics Join House GOP Regulatory Reform Panel
Feb 5, 2016 | InsideEPA
House Republican leaders have announced the formation of a regulatory reform task force that includes lawmakers who have raised major concerns about EPA air, water, climate and other regulations.
The task force is one of six panels that the GOP has “charged with developing a bold, pro-growth agenda that will be presented to the country in the months ahead,” according to a press release from House Speaker Paul Ryan (R-WI).
The regulatory reform panel includes several vocal critics of EPA rules, such as House Energy & Commerce Committee Chairman Fred Upton (R-MI), Science, Space, and Technology Committee Chairman Lamar Smith (R-TX), and Transportation & Infrastructure Committee Chairman Bill Shuster (R-PA).
The goal of the panel is to “Make it easier to invest, produce, and build things in America with a regulatory system that reduces bureaucracy and eases the burden on small businesses and job creators, while still protecting the environment, public safety, and consumer interests.”
Additionally, the House is forming five other task forces as part of their agenda aimed at enhancing growth and job creation. The other panels will address national security; tax reform; health care reform; poverty, opportunity and upward mobility; and restoring constitutional authority.
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Hearings To Mull Upcoming Rules, Enforcement Policies
Feb 8, 2016 | E&E Daily News
By Hannah Hess
Committees on both sides of the Capitol plan to take a hard look at environmental and energy rules this week.
House Science, Space and Technology Chairman Lamar Smith (R-Texas) will convene a hearing Wednesday titled "Midnight Regulations: Examining Executive Branch Overreach."
Smith, who was recently appointed to a GOP task force on regulatory reform, wants to examine the scientific and policy issues surrounding federal agency rulemaking at the end of a presidential administration (E&E Daily, Feb. 5). The hearing will focus on upcoming regulations by the Department of Energy and U.S. EPA.
The panel will hear from Karen Kerrigan of the Small Business and Entrepreneurship Council; Jerry Bosworth, president of an air conditioning company in Galveston County, Texas; Kateri Callahan of the Alliance to Save Energy; and Sam Batkins, the American Action Forum's director of regulatory policy.
Senators on the Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management will hold a Thursday hearing to examine agency discretion in setting and enforcing regulatory fines and penalties.
Republican staff on the panel recently released a scathing report highlighting private-sector concerns with federal environmental regulations (E&E Daily, Jan. 20). Sen. James Lankford (R-Okla.), chairman of the subcommittee, said the hearing will examine how agencies set and enforce regulatory fines and penalties and the efforts they have taken to ensure consistency and transparency over regulatory enforcement decisions.
Susan Shinkman, director of EPA's Office of Civil Enforcement, and Jordan Barab, deputy assistant labor secretary for the Occupational Safety and Health Administration, will testify.
One of the committee's Democrats, Sen. Jon Tester of Montana, anticipates the Clean Power Plan and other controversial rules will be fodder for questions. "Anything that's political, we're going to hear about," he told E&E Daily.
Schedule: The House Science hearing is Wednesday, Feb. 10, at 10 a.m. in 2318 Rayburn.
Witnesses: Karen Kerrigan, president and CEO, Small Business and Entrepreneurship Council; Jerry Bosworth, president, Bosworth Air Conditioning and Heating; Kateri Callahan, president, Alliance to Save Energy; and Sam Batkins, director of regulatory policy, American Action Forum.
Schedule: The Senate regulatory affairs subcommittee hearing is Thursday, Feb. 11, at 9:30 a.m. in 342 Dirksen.
Witnesses: Jordan Barab, deputy assistant secretary, Labor Department Occupational Safety and Health Administration, and Susan Shinkman, director, U.S. EPA Office of Civil Enforcement.
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Work From Home May Result in Higher Carbon Emissions
Feb 8, 2016 | BNA Daily Environment Report
By Jessica Shankleman
More businesses are asking employees to work remotely in a bid to cut rental costs for office space and take advantage of the growth of super-fast broadband, teleconferencing and smart phones. But working from home can actually increase the carbon dioxide emissions that cause global warming because those who stay home usually turn up the thermostat.
Home energy consumption increases 20 percent when people work where they live, according to a study by BT Group Plc, the U.K.’s biggest broadband provider.
“The general view is home working is always a good thing, but it's never as simple as it appears,” said Paul Swift, a consultant for Carbon Trust, a London-based research group that advises companies on sustainability. “You can have a very efficient building in a city where people are walking or using public transport. If employees working from home are switching on the heating across the entire house, it will be a negative.”
Swift and his team said working at home during the winter can quickly lead to an increase in emissions. A single hour of extra heating for most households cancels out the emissions saved by avoiding a commute, the Carbon Trust concluded in a 2014 report.
For Those With Long Drives
Only those home workers who live far from the office or who would otherwise drive to work contribute to an overall reduction in pollution. Employees whose daily car commute is at least eight miles, who take a bus for 14 miles or travel at least 32 miles by train can cut emissions, the report said. Those who walk or take public transport would increase their emissions by working from home.
Vodafone Libertel BV, a mobile phone provider, has acknowledged similar findings. Home working increases energy and heating use, offsetting the carbon savings from less commuting and smaller office space, according to its latest Environmental Profit and Loss Account.
More people than ever are working from home, and advocates say the practice can cut pollution. About 3.7 million employees in the U.S. do so for half their time on the job or more, double the level of 2005, according to the consultant Global Workplace Analytics.
Continued Growth of Telework
That may contribute a reduction of 51 million metric tons of carbon emissions a year, the equivalent of taking all of New York's commuters off the road, according to the research group that works to help businesses and communities understand the advantages of working from home.
“Barring a national disaster, we see the growth of half-time-plus telework staying at about 5 to 7 percent for the next few years,” said Kate Lister, president of Global Workplace Analytics. “The bigger growth will be among less frequent telecommuters. There we predict growth of 10 percent a year for the next few years.”
There isn't much data on global trends. A poll of more than 18,600 people in 26 countries published by Ipsos in 2012 named India, Indonesia and Mexico as the top countries for telecommuting, followed by South Africa, Turkey and Saudi Arabia. Ten percent to 35 percent of the world's workforce worked remotely at least once or twice per week, the report found.
Of course, companies have a role to play too by ensuring their offices are as efficient as possible, using smart buildings controls and other green technologies. The U.S. Department of Energy's Better Buildings project intends to double American productivity by 2030 by improving energy efficiency. It unveiled programs to collect more data on the way buildings work.
Among environmentalists, there is a belief that companies have their own finances in mind when they push employees out of the office.
“Companies are interested in reducing office space for financial reasons,” said Swift of the Carbon Trust. “The environmental side is not the highest priority.”
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EPA Orders Texas to Revise Coal Plant Air Permit
Feb 8, 2016 | BNA Daily Environment Report
By Nushin Huq
The Environmental Protection Agency directed Texas regulators to revise a 2014 air pollution control permit for a coal-fired power plant, finding that the permit was unclear on emission limits set for scheduled maintenance, startup and shutdown of the plant, according to a Feb. 3 order.
The EPA sided with the Environmental Integrity Project and the Sierra Club, which had argued that the permit issued by the Texas Commission on Environmental Quality for the Pirkey Plant included improper air pollution exemptions. The EPA directed the agency to review the permit to ensure that it requires both opacity and particulate matter limits outlined in the state implementation plan to apply during periods of planned maintenance, startup and shutdown.
“This is a victory for clean air,” Gabriel Clark-Leach, an Environmental Integrity Project attorney, said in a statement. “EPA's objection is important, because it puts power plant operators on notice that the TCEQ's illegal maintenance exemptions are ineffective and sends a clear message to Texas that it must actually enforce the rules it writes.”
The Pirkey Plant, owned by Southwestern Electric Power Co., is a 721-megawatt plant that generates power by burning coal or natural gas. Under the Clean Air Act, all major stationary sources of air pollution are required to obtain a Title V operating program. TCEQ grants Title V permits, through the EPA approved state implementation plan, which is found in 30 Texas Administrative Code Chapter 122.
“The TCEQ is reviewing EPA's order and will respond in accordance with our EPA-approved Title V program procedures,” Andrew Keese, a TCEQ spokesman, told Bloomberg BNA.
The plant initially received its Title V permit from the TCEQ in 1999. Since then, its permit has received a number of minor revisions. It received its latest Title V minor modification permit from TCEQ on Sept. 17, 2014. Under the revisions, the plant would be allowed to emit higher levels of particulate matter as well as allow for greater opacity during planned maintenance, startup and shutdown than is allowed under the state's implementation plan.
Permit Contained ‘Improper Exemptions.'
The environmental groups filed a joint petition on Oct., 30, 2014, claiming that the permit “creates improper exemptions” from the opacity and particulate matter limit in the EPA-approved state implementation plan and asked that the EPA object to the Title V operating permit.
The EPA found that the 2014 Title V permit is unclear on whether the federally applicable opacity and particulate matter emission limits outlined in the state plan apply during planned periods of maintenance, startup, and shutdown. The agency agreed with the environmental groups that the permit does not ensure compliance with those requirements.
The Title V permit must ensure that the state implementation plan opacity and particulate matter limits still apply during those periods, the EPA said.
Even though the order affects only one plant, it sets a precedent for other coal-fired plants in Texas, the Environmental Integrity Project, said in a statement. The TCEQ has issued similar exemptions for the majority of the state's coal plants.
The EPA did deny the environmental groups' request that the revised permit clarify that credible evidence may be used by citizens to enforce the terms and conditions of the permit. Neither the regulations nor the 2014 Title V permit contained any language limiting the use of credible evidence by the EPA, states or citizens, the order said.
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House Bill Responding to Flint Expected on Floor
Feb 8, 2016 | BNA Daily Environment Report
By Andrew Childers
House legislation that would strengthen the Environmental Protection Agency's Notification of Water Violations will likely be taken up on the House floor next week, Matt Sparks, a spokesman for House Republican Leader Kevin McCarthy (R-Calif.) told Bloomberg BNA in an e-mail.
The bill, by Reps. Dan Kildee (D-Mich.) and Fred Upton (R-Mich.), would require the Environmental Protection Agency to step in and issue a public notice saying a water utility has violated the federal threshold for lead in tap water if the state in charge or the utility operator hasn't acted within 24 hours of finding out.
The Safe Drinking Water Act Improved Compliance Awareness Act (H.R. 4470) also would give an EPA employee, who learns that lead levels in tap water are exceeded, authority to bypass the state and notify the water utility of the violation. If the utility and the state still fail to act, then the EPA would step in.
The bill also would require the EPA to develop a strategic plan to handle flow of information among those affected, the state and the federal agency. The bill would strengthen the EPA's ability to directly notify the public when lead in drinking water exceeds the federal action level of 15 parts per billion, although the agency has said no level of lead in water is really safe.
The legislation comes in response to the Flint, Mich., water emergency arising from lead contamination of tap water (see related story).
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Flint Crisis Heightens Debate On EPA's FY17 Infrastructure Funding Levels
Feb 5, 2016 | InsideEPA
By Amanda Palleschi
The Flint, MI, drinking water crisis is spurring new dialogue between water industry groups and lawmakers about water utilities' longstanding fiscal and policy priorities such as affordability, the value of water and funds to repair aging water infrastructure systems -- issues that are likely to be a major part of the debate over EPA's imminent fiscal year 2017 budget proposal, water industry sources say.
Sources say it remains to be seen whether and how the debate over helping Flint reduce high lead levels in its drinking water will factor into discussions about FY17 appropriations for EPA's clean water and drinking water state revolving funds (SRFs). But key senators are already citing the need for increased infrastructure funding ahead of the Feb. 9 White House rollout of its FY17 budget.
“That's one of the big questions hanging out there . . . whether or not assistance to Flint will affect appropriations for other water programs,” a water industry source tells Inside EPA. “On the one hand, Congress seems to be addressing this as an emergency situation, kind of like Superstorm Sandy or something like that, and money sent to this situation may be considered an isolated issue.”
“On the other hand, the federal government is operating in a deficit and there are real budget hawks on the Hill who will focus on the bottom line and insist the money must come from somewhere,” the water industry source adds. “Then the question becomes just who takes the hit.”
Sen. Benjamin Cardin (D-MD) is urging the White House to include a “substantial increase in funding” for the SRFs in FY17. Cardin is a member of both the Environment and Public Works Committee (EPW) and the Finance Committee.
“As you are aware, the U.S. is facing a serious and growing need for repairs to and replacements of its aging water and wastewater infrastructure,” Cardin writes in a Feb. 3 letter to Shaun Donovan, director of the White House Office of Management and Budget. “Meanwhile, state and local communities continue to face an array of competing resource demands that coincide with tight budgets as the economy is still recovering. This difficulty has been highlighted with the unfortunate situation that is occurring in Flint, MI, and plagues cities all over the country.”
But EPW Chairman James Inhofe (R-OK) is warning that any boosts to the drinking water SRF should not come at the expense of the clean water SRF.
Budget Request
Responding to a Politico report that the FY17 budget request will seek to increase the drinking water SRF by $158 million to $1.02 billion but cut the clean water SRF by $250 million from the FY16 enacted levels, Inhofe said in a Feb. 5 statement that this approach is only “robbing Peter to pay Paul.”
“Both of these funds are fiscally responsible in how they provide low interest loans to communities in need of addressing critical water infrastructure,” Inhofe said. “The federal government can responsibly help Flint, and help prevent another Flint from happening by supporting infrastructure investment. I will continue working with my colleagues to find a bipartisan solution to help the children and families in Flint, and any similarly affected communities, as well as work to ensure these EPA accounts are responsibly funded.”
Inhofe charged that it took the Flint crisis for the president to become concerned with the drinking water SRF, and that in previous years, the Obama White House “has sought to short change this fund while increasing funding for subsidies for his corporate friends that share his global warming views.”
Debate over how best to address the Flint crisis has stalled consideration of a sweeping energy bill, S. 212, with Democrats blocking the bill from moving forward after Republicans argued that an amendment to provide more than $400 million in new federal funding through the drinking water SRF was premature before the city and state could determine the community's needs.
Sen. Barbara Mikulski (D-MD), vice chairwoman of the Appropriations Committee, during Feb. 4 remarks on the Senate floor, said what happened in Flint could happen in any state because “[o]ur infrastructure is not only aging in place, it is becoming dysfunctional in place and it is becoming dangerous in place.”
The cost to replace Flint's corroded water infrastructure is estimated to cost anywhere from $700 million to $1.5 billion, Mikulski said, noting, “We're all Flint.”
Water industry sources say they are looking at a number of congressional vehicles to increase appropriations for water infrastructure, including the FY17 budget debates, a new Army Corps of Engineers biennial authorization bill currently being crafted and newly introduced House legislation to create a national trust fund for infrastructure repairs and upgrades.
Republican Opposition
But sources say concerns linger about Republican opposition to new spending despite the outpouring of attention and concern for Flint.
“I don't see a possible path to a significant increase under the current congressional budget agreement,” a second water industry source says. “The funding ceiling for discretionary spending is nominally the same as last year. But the need for additional funding exists, largely a result of federal regulation, so it is something Congress needs to consider in spending decisions.”
That source predicts that rather than being able to boost SRF funding levels in FY17, the more likely scenario is that such funds will be targeted specifically to Flint: “There are a host of options for targeting (compliance, economics, green infrastructure, grants versus loans, etc. I would think Congress will review how the funding is being targeted and may provide additional directive to focus on compliance, health issues, and possible lead contamination abatement,” the source says.
And the energy bill debate on the Senate floor also brought to light partisan difference between the importance of the SRF versus the importance of finding more innovative, budget-neutral financing methods.
Sen. Lisa Murkowski (R-AK), during Feb. 4 debate on the bill, mentioned the still-nascent Water Infrastructure Finance and Innovation Authority (WIFIA) as a possible way to assist in crises like Flint: “This is where the opportunity to access loans through the WIFIA program that will be available not only to Michigan but to other states should they be in a similar situation, and avoid the earmark. We don't want to see [a drinking water crisis] in other states so we do that through opportunities for loans through WIFIA.”
The water industry source, however, notes that not only are WIFIA funds not yet available for such projects, but that Flint “couldn't handle a loan” through the program because the city remains under state receivership due financial distress.
While Senate Democrats have pledged to continue negotiations on aid to Flint after the failed energy bill vote, water industry groups are hopeful about new pieces of post-Flint legislation that push several of their longstanding advocacy issues.
Infrastructure 'Momentum'
A third water industry source says that although many of these issues would be arising in this Congress anyway, the Flint crisis has brought a new focus to the country's aging water infrastructure that has given such issues “momentum.” The source says additional funds may be authorized as part of this year's Army Corps Water Resources and Development Act (WRDA) process.
“The House says they want a clean WRDA bill, but that was all pre-Flint,” the source says. “We will get more perspective on that after the energy bill wraps up.
Reps. Earl Blumenauer (D-OR), Richard Hanna (R-NY) and John Duncan (R-TN) Feb. 4 reintroduced legislation that would create a voluntary, deficit-neutral federal trust fund for financing the replacement and repair of wastewater and drinking water facilities. The Water Investment Trust Fund Act works by providing businesses an opportunity to label their products showing their commitment to clean water issues by contributing 3 cents to the trust fund per unit sold. The funds would then take the form of grants and loans through the SRFs.
Blumenauer last proposed a trust fund bill in 2013, revising the concept from prior iterations that proposed a straightforward tax on products like beverages and pharmaceuticals to a voluntary fee on such products. Though it received bipartisan support, there was a lack of certainty as to whether enough product producers would volunteer for the concept in order to make it successful. Industry sources and lawmakers now say they are hoping the Flint crisis could tip the scales.
In a statement praising the introduction of the bill, the National Association of Clean Water Agencies (NACWA) pointed out the “importance and timeliness” of the measure “is only elevated by the recent crisis in Flint, Michigan.”
“This bill is an important step to addressing the nation's widespread water and wastewater infrastructure investment and affordability challenges,” NACWA CEO Adam Krantz said. Other groups such as the American Council of Engineering Companies, the National League of Cities, the American Public Works Association and the American Concrete Pressure Pipe Association also joined in support of the bill.
Blumenauer's Bill
“As seen by the lead water crisis in Flint, MI, it is critical that we maintain and improve our water infrastructure,” a Feb. 4 statement from the sponsoring congressmen states. “Water infrastructure problems, however, are not confined to tragedies such as these. Last year alone, American communities suffered more than 240,000 water main breaks and saw overflowing combined sewer systems -- causing contamination, property damage, disruptions in the water supply, and massive traffic jams.”
Though the trust fund concept is nearly identical to Blumenauer's 2013 efforts, water industry sources are particularly cheering a new component of the legislation which directs EPA to study water affordability gaps in low-income communities.
The source says the study will look at the feasibility of proposals they have pushed that would allow municipalities to raise their water rates to help pay for infrastructure upgrades while assisting low-income populations with the cost of such upgrades. Many water industry groups, such as NACWA, have long pushed for visibility on “the value of water” -- suggesting that municipalities may need to raise their water rates to keep up with infrastructure requirements. The Flint crisis “is bringing 'value of water' to the fore,” the source says.
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Third House panel plans hearing on Flint
Feb 6, 2016 | The Hill - E2 Wire
By Timothy Cama
The House Energy and Commerce Committee is planning a hearing next month on the drinking water contamination in Flint, Mich.
The hearing is the third to be announced in the House on Flint’s water crisis, following a Wednesday gathering of the House Oversight Committee and a hearing next week hosted by House Democrats.The Energy and Commerce Committee did not say who will testify or if Michigan Gov. Rick Snyder (R) will be in attendance.
“The situation in Flint, Mich., is unacceptable at all levels and we still have a lot to learn,” Reps. Fred Upton (R-Mich.) and Frank Pallone Jr. (D-N.J.), the panel’s leaders, said in a Friday statement.
“Next month’s hearing seeks to build a better understanding of what we can do to ensure that a crisis of these proportions never happens again, as well as what needs to be done to address the public health and water infrastructure issues in Flint.”
The lead crisis entered the national spotlight in recent months. The city, under control of a Snyder-appointed emergency manager, switched its drinking water supply in April 2014 but never applied proper corrosion controls, causing lead from old pipes to leach into the water.
Congress has been debating what, if anything, it should do to help Flint. Senate Democrats want hundreds of millions of dollars to go to the city to help replace and repair lead pipes, and they blocked passage of a major energy bill Thursday when the GOP did not agree to the request.
Upton and Pallone started investigating the crisis last month, focusing on what the Environmental Protection Agency (EPA) and Michigan’s Department of Environmental Quality have done since early last year, when residents started to sound the alarm about lead levels.
Upton and Rep. Dan Kildee (D-Mich.), a Flint resident, introduced legislation Thursday to require the EPA to disclose major public health concerns, as it did not do in Flint’s case.
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GOP Senators Question McCarthy Over Flint Water Crisis
Feb 5, 2016 | InsideEPA
Several Republican senators are questioning EPA Administrator Gina McCarthy about when she learned of the drinking water crisis in Flint, MI, seeking a host of documents that they argue might highlight the agency's possible “failures” in responding to the crisis and help to prevent similar disasters in the future.
In a Feb. 4 letter to the administrator, the senators say that McCarthy has -- by accepting former Region 5 Administrator Susan Hedman's resignation over the issue and seeking an Inspector General investigation -- “strongly” implied that she had no prior knowledge of the water contamination.
McCarthy accepted Hedman's resignation Jan. 21 and pledged to use the agency's authorities under the Safe Drinking Water Act to direct the state and city to take more action regarding the drinking water system, which was contaminated after the city switched its water supply to a different source that began corroding lead water pipes.
The senators say, “As you have alluded to before, leadership starts with you. It certainly appears that the EPA did not take action, or at a minimum, alert citizens about the lead contamination.”
They add, “In light of this and to prevent similar hazardous mistakes in the future,” they are formally requesting all correspondence and other documents pertaining to the Flint crisis between McCarthy's office and Hedman's office, McCarthy's office and the Michigan Department of Environmental Quality, and McCarthy's office and the city of Flint. The senators ask for McCarthy to comply with the request no later than March 3.
In addition, they ask the administrator to answer several questions, including when she was first briefed on an internal June 24 memo about the contaminated drinking water, when Hedman first discussed the Flint situation with her, and when Office of Water officials first made McCarthy aware of the situation.
The letter is signed by Senate Environment & Public Works Committee Chairman James Inhofe (R-OK), panel member David Vitter (R-LA) and Senate Majority Whip John Cornyn (R-TX).
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