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ACC AM 2/26
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Flame Retardant Impurities in House Dust Raise Health Concerns
Feb 25, 2016 | Chemical Watch
By Emma Davies
Researchers have found "high concentrations" of impurities, associated with a widely used organophosphorus flame retardant called resorcinol bis(diphenyl phosphate) (RDP), in house dust. -
EPA Extends Information Deadline For Paraffins
Feb 25, 2016 | InsideEPA
EPA is extending until March 23 its deadline to submit information about the uses and toxicology of a group of chlorinated paraffins after industry groups said they need more time to gather information on how the chemicals are used in their products because EPA has not provided unique identifying numbers for some of the chemicals in the group. -
(ACC Mentioned) EPA Moves to Tighten Chemical Plant Safety Rule
Feb 25, 2016 | Charleston Gazette-Mail
By Ken Ward Jr.
The Obama administration on Thursday unveiled a long-awaited plan to reform the nation’s chemical plant safety standards, with a proposal that would require companies to weigh potentially safer alternatives in the design and operation of manufacturing facilities. -
(ACC Mentioned) R.I. House Panel Weighs Regulation of Growing Drone Industry
Feb 25, 2016 | Providence Journal
By Patrick Anderson
As the number of unmanned aircraft, or drones, in the skies has climbed over the past year, so have calls for Rhode Island to regulate the devices to protect public safety and preserve personal privacy. -
EPA Proposes Changes to Chemical Security Rules
Feb 26, 2016 | BNA Daily Environment Report
The Environmental Protection Agency is proposing major changes to its regulations around safety preparedness requirements for chemical manufacturing plants. -
EPA Rejects Advocates' Call For IST Mandate In Draft Facility Safety Rule
Feb 26, 2016 | InsideEPA
By Dave Reynolds
EPA is proposing to overhaul its risk management plan (RMP) requirements for facilities in order to impose new requirements on industrial facilities to prevent and mitigate releases of harmful chemicals, but is rejecting advocates' long-running push to mandate use of “inherently safer” processes or regulate additional substances. -
CW NEWS VIDEO: Enforcing Safety Regulation is Key to Sustainable Chemistry
Feb 25, 2016 | Chemical Watch
By Leigh Stringer
For chemicals to become sustainable, safety regulations must be properly enforced and adhered to by all those across the supply chain, says Dr Rodney Townsend of the Royal Society of Chemistry. -
Calif. Methane Leak Casts Shadow Over Safety Debate
Feb 26, 2016 | E&E Daily
By Ben Panko and Hannah Hess
The worst natural gas leak in U.S. history is adding renewed urgency to the ongoing debate in Congress over the future of pipeline safety legislation. -
Senate Set to Vote on Pipeline Reauthorization Bill
Feb 26, 2016 | BNA Daily Environment Report
By Rachel Leven
The Senate was expected to vote, potentially as early as the evening of Feb. 25, on a bill to reauthorize pipeline safety programs through 2021, following a subcommittee hearing where House legislators debated what should be included in a pipe reauthorization. -
38 DEN A-25 PHMSA Updates Strategic Framework: Dominguez
Feb 26, 2016 | BNA Daily Environment Report
The nation's pipeline safety regulator has updated its strategic framework through 2021, the agency's administrator said Feb. 25 at a House subcommittee hearing. -
PTC Safety System Could Launch as Early as Monday on SEPTA's Warminster Line
Feb 25, 2016 | Philly Voice
By John Kopp
A new, federally mandated safety system could be operational on SEPTA's Warminster Regional Rail line as soon as Monday, the agency said Thursday. -
Some Parts of Clean Power Plan Will Stick, Panelists Say
Feb 26, 2016 | BNA Daily Environment Report
By Nushin Huq
While the Environmental Protection Agency's Clean Power Plan might be overturned, the trajectory towards lower carbon emissions is here to stay, panelists said in Houston on Feb. 25. -
EPA Sued Over Missed Air Toxics Review Deadlines
Feb 26, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of environmental groups wants a federal district court to compel the Environmental Protection Agency to complete reviews of hazardous air pollution emissions standards covering 13 different industrial sectors (Blue Ridge Envtl. Def. League v. McCarthy, D.D.C., No. 1:16-cv-364, 2/24/16). -
Clean Power Plan Lawsuits Could Shape EPA Authorities
Feb 26, 2016 | BNA Daily Environment Report
By Andrew Childers
Upcoming litigation over the Environmental Protection Agency's Clean Power Plan could further define the parameters of the agency's ability to use its existing statutory authority to tackle new environmental challenges, legal experts said. -
EPA Urges Judges to Reject Charges of Lobbyists' Influence
Feb 25, 2016 | E&E News PM
By Robin Bravender
U.S. EPA doesn't think a conservative legal group should be allowed to file documents in federal court alleging that lobbyists improperly helped write the agency's Clean Power Plan.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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Flame Retardant Impurities in House Dust Raise Health Concerns
Feb 25, 2016 | Chemical Watch
By Emma Davies
Researchers have found "high concentrations" of impurities, associated with a widely used organophosphorus flame retardant called resorcinol bis(diphenyl phosphate) (RDP), in house dust.
Early in vitro tests suggest that one impurity, meta-hydroxy-triphenyl phosphate (meta-HO-TPHP), may have oestrogenic activity.
RDP is commonly used as a replacement for the brominated flame retardant decaBDE in electronic equipment, such as televisions and printers, and has been detected in house dust in several countries.
Last year, a team led by Adrian Covaci at the University of Antwerp identified a set of human metabolites of RDP, which are currently undergoing toxicity tests.
Although a 2014 report by the US EPA suggested that the human toxicity of RDP is low, concerns are growing over the possible toxicity of impurities and metabolites.
In general, impurities share similar functional groups with parent compounds but are smaller and more polar, which could make them “more bioavailable and probable to exert bioactivity”, said lead author Ana Ballesteros-Gómez from VU University Amsterdam.
Although they tend to be less persistent than the parent compound, they “can also be more toxic”, warns Ms Ballesteros-Gómez and her co-workers, Adrian Covaci and Nele van den Eede from the University of Castilla-La Mancha.
A recent study in Toxicology Letters, co-authored by Dr Covaci and Dr van den Eede, suggests that meta-HO-TPHP shows more potent oestrogenic activity than its parent compound TPHP in nuclear receptor assays.
Dr Ballasteros-Gómez and her colleagues used high resolution time-of-flight mass spectrometry to identify RDP-related compounds, in plastic products and in dust.
They found a range of chemicals, including TPHP, meta-HO-TPHP and meta-HO-RDP in plastics containing high levels of RDP. They went on to identify high concentrations of the same compounds in many dust samples, implying that that they “migrate easily into the environment”.
Given that meta-HO-TPHP is only a minor impurity in RDP commercial formulations, the concentrations detected were higher than the researchers had expected. They suggest that its higher polarity and smaller molecular weight could allow it to migrate more easily into dust than RDP.
Since meta-HO-TPHP was only found in dust samples containing RDP, it could be a suitable marker for assessing exposure to RPD in future biomonitoring studies, suggest the researchers in an article in Environmental Science and Technology.
They call for more data on meta-HO-TPHP to assess human exposure and risks.
“I encourage other scientists to provide more data, which is necessary to build a picture of the contamination by these impurities in the environment,” said Dr Ballesteros-Gómez.
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EPA Extends Information Deadline For Paraffins
Feb 25, 2016 | InsideEPA
EPA is extending until March 23 its deadline to submit information about the uses and toxicology of a group of chlorinated paraffins after industry groups said they need more time to gather information on how the chemicals are used in their products because EPA has not provided unique identifying numbers for some of the chemicals in the group.
EPA in December requested information about the use and toxicity of a group of medium- and long- chain chlorinated paraffins (MCCPs and LCCPs) under its Toxic Substances Control Act (TSCA) authority after its initial assessments of the chemicals' risks indicated that they may present risks to the environment because the chemicals are expected to be persistent, bioaccumulative and toxic.
While the agency initially evaluated the chemicals under its work plan risk assessment program for “existing” chemicals, EPA later determined that the unique identifying numbers on the TSCA inventory of existing chemicals did not adequately describe the substances being manufactured.
As part of a settlement agreement with EPA, Dover Chemical and a company now known as INOVYN Americas, Inc., agreed to treat certain MCCPs and LCCPs as “new” chemicals and submit premanufacture notices (PMNs), which both companies did in 2012, an industry source told Inside EPA in December.
EPA announced the 30-day comment period extension in a Feb. 22 Federal Register notice. Industry groups had sought an extra 90 days to comment.
In Feb. 11 comments, the Chemical Users Coalition (CUC) explains that its members are surveying their suppliers in order to better understand how the chemicals are used in their products, but require more time to complete these surveys.
“Thus far, these efforts have revealed that the CPs are used in a variety of industrial applications that could have significant effects on multiple industries,” CUC's comments state.
But there is some uncertainty about the scope of the chemicals covered by the notice because EPA did not identify three of the chemicals by their unique Chemical Abstract Service (CAS) numbers, CUC says. Without these, it “makes it difficult to communicate clearly with supplier firms and thereby obtain the information of interest to EPA,” CUC writes.
CUC's concerns are joined by those of the Aerospace Industries Association (AIA), which also requested a 90-day extension of the comment deadline and seeks clarification on the chemicals' names and CAS numbers. The aerospace and defense trade group explains that “[w]e are aware of uses in machining for parts manufacturing, but CPs also may be used more directly in coatings and sealants. . . . We often have little visibility into the chemical content of the products that our suppliers provide. In many cases the suppliers are unaware of what precisely is used in the production of those materials, making identification of specific chemicals difficult.”
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(ACC Mentioned) EPA Moves to Tighten Chemical Plant Safety Rule
Feb 25, 2016 | Charleston Gazette-Mail
By Ken Ward Jr.
The Obama administration on Thursday unveiled a long-awaited plan to reform the nation’s chemical plant safety standards, with a proposal that would require companies to weigh potentially safer alternatives in the design and operation of manufacturing facilities.
U.S. Environmental Protection Agency officials emphasized that their proposal would not force chemical plants to actually adopt “inherently safer technologies,” but simply to analyze those technologies and evaluate the feasibility of implementing less-hazardous approaches.
The EPA proposal also includes changes that the agency says would assist local emergency officials in planning for and responding to plant accidents and improve public awareness of chemical hazards in their communities.
“This proposal is a step in the right direction,” EPA assistant administrator Mathy Stanislaus said in a blog post promoting the agency effort. “We want to build on the success of leaders in the chemical industry by enhancing their operations to prevent accidents, and we want to make sure that communities are fully prepared for a chemical plant accident, so that first responders, workers, and neighboring community members are protected.”
Chemical industry officials were quick to question the EPA effort, with the American Chemistry Council saying the proposed requirements would “create unnecessary and potentially detrimental complexity.”
The EPA proposal is a draft rewrite of the agency’s “risk management plan” rule that implemented chemical plant safety provisions of the 1990 amendments to the Clean Air Act.
In a press release, EPA said that, “While numerous chemical plants are operated safely, in the last 10 years more than 1,500 accidents were reported” at facilities covered by the rule. “These accidents are responsible for causing nearly 60 deaths, some 17,000 people being injured or seeking medical treatment, almost 500,000 people being evacuated or sheltered-in-place, and costing more than $2 billion in property damages.”
Safety advocates have expressed dissatisfaction with the Obama administration’s attention to chemical plant safety issues, saying that the response to a series of major fires, explosions and leaks has been disappointing. A coalition of groups has said that the administration was stalling any significant plant safety actions until it’s too late in Obama’s term to have proposals finalized
In its proposal issued Thursday, the EPA included a long list of major plant incidents — including the 2008 explosion and fire at the Bayer CropScience plant in Institute — and quoted from various U.S. Chemical Safety Board reports that detailed significant safety lapses that led to those incidents. Former CSB Chairman Rafael Moure-Eraso, who was pushed out of office by Obama last year — had been publicly pressing for adoption of an approach called the “safety case,” in which companies are required to demonstrate through a written report how major safety hazards are to be controlled and risks reduced.
EPA noted that a coalition of citizen groups had petitioned EPA nearly four years ago, in July 2012, to require the adoption of inherently safer technologies where they are feasible. While saying that its proposal would require an analysis of safer alternatives, EPA said it was not requiring those to be adopted by companies.
“The decision to implement such measures must consider the numerous factors related to processes, facilities and society at large. Improper implementation of a seemingly safer alternative may lead to undesired consequences,” the agency said.
“While EPA believes that sources should look for additional opportunities to increase safety, we believe that the facility owners or operators are in the best position to identify which changes are feasible to implement for their particular process,” EPA said. “This decision should be based on a careful analysis and take into account: the chemicals present and their associated hazards; the operations and process conditions involved; consequences to workers, nearby populations and the environment; and the types of equipment used that are specific to the facility’s process. The analysis may consider the potential to shift risk between populations, locations, environmental media (air, water land), etc.”
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(ACC Mentioned) R.I. House Panel Weighs Regulation of Growing Drone Industry
Feb 25, 2016 | Providence Journal
By Patrick Anderson
As the number of unmanned aircraft, or drones, in the skies has climbed over the past year, so have calls for Rhode Island to regulate the devices to protect public safety and preserve personal privacy.
Drone advocates say that would be a mistake that could cripple a growing industry and put the state at an economic disadvantage.
Both sides of the debate spoke out Thursday at the final hearing of a House commission studying drone policy.
"I hope Rhode Island will take the chance to embrace this technology, allow it to flourish and allow high-tech jobs to flourish in the state," said Andy Trench, founder of XactSense, a Warwick company that makes drone equipment. "This will be the dawn of the commercial [Unmanned Aerial Vehicle] era. Over-regulating before knowing the full potential would be a huge mistake."
On the other side, Joanne Maceroni, government affairs manager of the Narragansett Bay Commission, the quasi-state water treatment agency, urged lawmakers to prohibit drone use near any wastewater treatment facility in the state.
Drones flying over treatment plants could pose a "confidentiality" risk, Maceroni said, and allow "sabotage" through materials dropped into treatment tanks. She said the agency was also worried about drones colliding with the commission's three large wind turbines at the Field's Point plant in Providence.
Stephen Rosario, senior director at the American Chemistry Council, a chemical manufacturing trade group, said drones presented a "safety concern" to the industry. He didn't go into specifics on what language he would like in a drone bill, but said he had provided it to lawmakers.
Hillary Davis of the American Civil Liberties Union of Rhode Island said her organization was seeking limits on law enforcement use of drones, including an all-out ban on "weaponized drones."
Given all those concerns, what might a Rhode Island drone law eventually look like?
Commission chairman Stephen Ucci, D-Johnston, said he intends to file a bill later this session that would address at least four different issues: cleaning up existing state aviation regulations for unmanned aircraft, protecting personal privacy, improving drone safety and creating special penalties for malicious drone use.
The primary regulator of aviation, manned and unmanned, in the country is the Federal Aviation Administration and some drone enthusiasts have questioned whether states have the authority to limit drone use.
Ucci said he believes Rhode Island can't prohibit flight, set altitude restrictions or create its own drone registry, but could limit certain behavior involving drones, such as trespassing, and could require users to seek permission before flying near certain places.
Rep. Raymond Gallison, D-Bristol, filed a drone regulation bill earlier this month that would, among other things, require people to register their drones with the state and prohibit drone use near any airport, military installation, government building, school, college or university. A similar bill filed last year was not passed.
A House Judiciary Committee hearing on the Gallison bill scheduled for Wednesday was postponed on Gallison's request, said Larry Berman, spokesman for Speaker Nicholas Mattiello.
Meanwhile, a deadline for recreational drone users to register their devices with the FAA passed earlier this week and agency spokesman Jim Peters said 368,472 drones were registered nationwide.
The FAA does not break out drone registrations by geographical area, Peters said, so it is unknown how many of those are operating in Rhode Island.
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EPA Proposes Changes to Chemical Security Rules
Feb 26, 2016 | BNA Daily Environment Report
The Environmental Protection Agency is proposing major changes to its regulations around safety preparedness requirements for chemical manufacturing plants. The proposal, as laid out in a pre-publication Federal Register notice, would impose new requirements on chemical facilities to develop plans with emergency responders and would require these facilities to release more information to the public. It also would require third-party audits that would look for ways to improve the facilities' safety processes. Mathy Stanislaus, EPA's emergency management chief, said in a Feb. 25 blog post that the changes to the regulations are needed because chemical plant accidents have caused $2 billion in property damage, injured 17,000 people and killed almost 60 over the past 10 years. Stanislaus said, in the process of developing the proposal, he “heard first-hand from local responders and communities about their concerns about accidental chemical releases. … This proposal is a step in the right direction.” The EPA will begin a 60-day public comment period on the proposal after its official publication in the Federal Register.
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EPA Rejects Advocates' Call For IST Mandate In Draft Facility Safety Rule
Feb 26, 2016 | InsideEPA
By Dave Reynolds
EPA is proposing to overhaul its risk management plan (RMP) requirements for facilities in order to impose new requirements on industrial facilities to prevent and mitigate releases of harmful chemicals, but is rejecting advocates' long-running push to mandate use of “inherently safer” processes or regulate additional substances.
In an exclusive Feb. 25 interview with Inside EPA, the agency's Office of Land and Emergency Management Assistant Administrator Mathy Stanislaus largely sidestepped questions about whether EPA could potentially mandate inherently safer technologies (IST) at some point in the RMP plan review process. He said that was not the purpose of the draft rulemaking, which focuses on improving how facilities plan to prevent releases from accidents.
Stanislaus said the proposal focuses on a core set of priority changes for strengthening RMP, but does not preclude EPA from addressing other issues in a future rulemaking, such as calls from the Chemical Safety and Hazard Investigation Board (CSB) to expand RMP to cover additional chemicals such as ammonium nitrate. But he declined to say whether EPA could finalize such rules before President Obama leaves office, as sought by advocates.
The proposed RMP rule, released Feb. 25 ahead of its upcoming publication in the Federal Register, is designed to improve the agency's RMP program established under section 112(r) of the Clean Air Act. The program requires companies to craft a plan to submit to the agency that outlines how they will reduce risks from releases.
Among other requirements, the proposal would mandate that companies at least consider IST and alternatives in their process hazard assessments that inform plans; require third party audits after a reportable release to reduce risk of future accidents; and aim to improve coordination between facilities and local communities.
Although EPA is not proposing requirements for emergency shutdown equipment or for siting facilities away from certain buildings, such as schools, in order to reduce potential risks, the agency is requesting comment in the proposal on whether to address those concerns with requirements in a future rule, or through guidance.
In addition to requiring certain sectors to weigh IST, EPA's proposal would require certain facilities to conduct a root cause analysis of any incident that could have caused a catastrophic release, and hire an independent auditor to assess their facility's compliance with rules after any reportable release.
“Chemicals are a necessary part of our everyday lives; however, as we have too often seen they can cause loss of life, injury and significant property damage,” Stanislaus said in an EPA press release on the proposal. “It is these dangers that we are working to prevent and minimize as we propose revisions to the RMP,” he said.
EPA will take comment on the proposed changes for 60 days after the rule's publication in the Register, and will also seek input during a public scheduled for March 29 in Washington, D.C.
Safer Technologies
The decision not to outright mandate IST for inclusion in RMP plans is a rejection of environmental and labor groups' long-standing calls for EPA to use authority under section 112(r) of the Clean Air Act to require IST -- for example switching from chlorine to a substance that poses less of a risk if released.
The proposal is part of a broad federal effort to implement President Obama's Executive Order 13650 that sought to bolster the safety and security of industrial facilities through improved coordination, as well as revised policies and standards. Obama issued the order Aug. 1, 2013 after an ammonium nitrate explosion at a fertilizer facility in West, TX, killed 15 people, including first responders, and injured more than 200 others.
The disaster revived long-standing calls to mandate IST from a coalition of environmental and labor groups that in July 2012 petitioned EPA to require facilities use IST where feasible.
Sen. Barbara Boxer (D-CA) separately called for EPA to adopt CSB's decade-old recommendation for EPA to add ammonium nitrate to the list of chemicals covered under the RMP proposal.
Ahead of the proposal's release, EPA officials in public comments often suggested that a federal mandate to use IST where feasible was not likely to be part of the proposal, calling the mandate “monumentally difficult” to implement.
Nonetheless, in advance of the proposal advocacy groups met this month with White House Office of Management and Budget staff to reiterate arguments that a federal IST requirement is the only way to ensure a reduction in future accidents -- though that lobbying push appears to have been unsuccessful.
While environmentalists are unlikely to welcome the lack of a direct mandate to use IST, some Democrats in Congress are offering praise for the requirement to at least consider IST.
In a joint statement, House Energy & Commerce Committee ranking member Frank Pallone (D-NJ) and energy panel environment subcommittee ranking member Rep. Paul Tonko (D-NY) said, “We’re particularly pleased that this proposal includes Inherently Safer Technology requirements, which we’ve long supported to ensure that our nation’s chemical facilities are secure. These commonsense measures will reduce the consequences of an attack or accident at chemical plants across the country and, ultimately, protect workers, first responders, and the surrounding community that might be affected by a spill.” The representatives also said they will work to ensure EPA finalizes the rule.
Proposed Rule
In the press release announcing the rule, EPA says that over the last decade RMP-regulated facilities have had more than 1,500 accidents, causing upward of 60 deaths and injuring 17,000 people.
EPA targeted certain sectors with requirements for new analyses because they are responsible for a disproportionate number of accidents, the proposal says.
In addition to the requirements for process safety analysis, the proposal includes new requirements for facilities to work with emergency responders to prepare for a release, and also make basic RMP information that is already public easier to access. Specifically, EPA's proposal would require certain facilities to meet annually with emergency responders, and for all facilities to conduct an emergency response drill once every five years.
Also, certain facilities would have to share detailed information with Local Emergency Planning Committees, such as summaries of compliance audits and accident histories, while the proposal would require all facilities to share certain basic information with the public through readily available means like posting to a company website.
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CW NEWS VIDEO: Enforcing Safety Regulation is Key to Sustainable Chemistry
Feb 25, 2016 | Chemical Watch
By Leigh Stringer
For chemicals to become sustainable, safety regulations must be properly enforced and adhered to by all those across the supply chain, says Dr Rodney Townsend of the Royal Society of Chemistry.
Speaking at Chemical Watch’s Global Business Summit today, Dr Townsend said no amount of green chemistry – defined by the US’s 12 principles– can protect people when chemical safety regulations are ignored or the people operating them don’t understand the chemistry.
He used last year’s explosion in Tianjin as an example of where regulation and the safe handling of chemicals “seemed to be blatantly disregarded”.
Dr Townsend, a board member of the European Technology Platform for Sustainable Chemistry (SusChem), said educating workers on the safe handling of chemicals and on the 12 principles of green chemistry were also important in moving towards a sustainable supply chain.
For example, if a logistics company is involved in a supply chain, it needs to fully understand the risks and hazards associated with what it is transporting.
"Green chemistry is only sustainable when everybody takes responsibility [of chemicals safety] at every point in the supply chain.”
“It is not just the responsibility of the chemist,” he added.
Watch the interview below.
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Calif. Methane Leak Casts Shadow Over Safety Debate
Feb 26, 2016 | E&E Daily
By Ben Panko and Hannah Hess
The worst natural gas leak in U.S. history is adding renewed urgency to the ongoing debate in Congress over the future of pipeline safety legislation.
During a House Transportation and Infrastructure subcommittee hearing yesterday, the shadow of the recent leak at a Los Angeles gas storage facility loomed large, with California lawmakers calling for enforceable federal standards to reduce methane pollution.
The oversight authority of the Pipeline and Hazardous Materials Safety Administration expired last September, and scrutiny has fallen not only on PHMSA's lack of oversight of underground natural gas storage facilities, but also on the agency's slow pace in implementing 42 mandates required in its last authorization in 2011.
In the Senate, a bipartisan bill to reauthorize PHMSA through fiscal 2019, S. 2276, appears on the fast track to passage (E&E Daily, Feb. 22). California Democratic Sens. Dianne Feinstein and Barbara Boxer this week signed on as co-sponsors.
Under the legislation, the Secretary of Transportation would convene a working group to collaborate on efforts to improve pipeline inspection and information sharing.
Sponsor Sen. Deb Fischer (R-Neb.) told E&E Daily the working group was key to gaining the support of Feinstein and Boxer, who helped draft those provisions. She said she expects the Senate to consider the bill next week.
"We all have a responsibility to prioritize not only the efficient permitting and construction of energy infrastructure, but also the safety and the security of our nation's extensive pipeline network," Fischer said yesterday in a floor speech.'Too damn long'
Mirroring the bipartisanship in the Senate, House Railroads, Pipelines and Hazardous Materials Subcommittee members showed no obvious split on PHMSA's reauthorization, though several Democrats said they would seek to increase the agency's powers by giving it "emergency order" authority.
That step would allow PHMSA to implement necessary safety actions without going through an often lengthy rulemaking process. The Transportation Department, which oversees PHMSA, used its emergency order authority last year to limit the speed of oil trains traveling through major cities (EnergyWire, April 20, 2015).
"We need to get emergency order authority into this legislation," subcommittee ranking member Mike Capuano (D-Mass.) told PHMSA Administrator Marie Therese Dominguez. "I think corrective action authority takes too damn long and jeopardizes people's lives when we know there is a problem."
Full Transportation Chairman Bill Shuster (R-Pa.), who led the subcommittee when it passed the prior authorization, stressed that the new legislation should in no way distract PHMSA from implementing the 16 remaining mandates of the previous law.
"Work on this reauthorization needs to make sure that PHMSA stays focused on closing out the 2011 act," Shuster said.
Andrew Black, testifying on behalf of the Association of Oil Pipe Lines and the American Petroleum Institute, also urged the subcommittee to add no "significant new provisions" to the reauthorization. Cheryl Campbell, Xcel Energy Inc. senior vice president, expressed the same wish on behalf of the American Gas Association.
"AGA members desire a path forward with certainty rather than with uncertainty, duplicative actions, or additional cost burdens on their customers," Campbell said.
Donald Santa, head of the Interstate Natural Gas Association of America, echoed the sentiment but added that the legislation should mandate underground storage safety actions.
Dominguez, who took office last year, touted her agency's plans to propose or finalize rulemakings on half of the remaining 2011 mandates in the next few months.
She also introduced a planned reorganization of her agency called PHMSA 2021, which would seek to make it more data-driven and transparent.
"PHMSA's vision for 2021 is to become the most innovative transportation safety organization in the world," Dominguez said.Aging infrastructure
Reps. Steve Knight (R-Calif.) and Brad Sherman (D-Calif.) pushed their own legislation in response to the four-month-long Aliso Canyon methane leak.
Knight introduced the "Natural Gas Leak Prevention Act," H.R. 4429, earlier this month. Sherman introduced the ""Underground Gas Storage Safety Act," H.R. 4578, roughly two weeks ago.
PHMSA has no rules governing intrastate underground gas storage, but it issued an advisory earlier this month and is contemplating rulemakings on the topics, Dominguez said (EnergyWire, Feb. 3).
"We need national standards," said Sherman, who lives in the Porter Ranch neighborhood, which was evacuated during the leak (Greenwire, Feb. 15).
Rep. Jackie Speier (D-Calif.), meanwhile, attacked PHMSA for having a too "cozy" relationship with the industry, a sentiment Capuano echoed in questions about industry-funded studies.
"What we have here is a situation where curbing bad corporate behavior is not a priority," Speier said.
Former PHMSA acting Administrator Brigham McCown said he didn't expect the House reauthorization bill to change too much from the Senate version.
"The biggest issue is we have aging infrastructure," McCown said, comparing pipelines to America's crumbling highways and bridges.
McCown expressed dismay about a clause in Sherman's bill that would allow state regulators to add additional regulations on interstate pipelines, saying it would create an expensive and complex patchwork of laws.
He also said PHMSA could do more about underground gas storage without new rules and that Congress should have expected delays when it set down 42 mandates for the agency, especially with difficulties in dealing with the White House Office of Management and Budget's cost-benefit rules.
"It's like your parents giving you this laundry list of stuff that you've got to do and complaining when it's not all done, even though you've been up till midnight," McCown said.
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Senate Set to Vote on Pipeline Reauthorization Bill
Feb 26, 2016 | BNA Daily Environment Report
By Rachel Leven
The Senate was expected to vote, potentially as early as the evening of Feb. 25, on a bill to reauthorize pipeline safety programs through 2021, following a subcommittee hearing where House legislators debated what should be included in a pipe reauthorization.
Actions in the House, which likely will introduce its own bill, may differ from those taken by the Senate in its SAFE PIPES Act (S. 2276). At least one senior House Democrat took issue with the bill's restriction on when the Pipeline and Hazardous Materials Safety Administration can begin developing new rules, and members from both parties noted a slew of opportunities for additional rules to mandate and strengthen safety programs that weren't included in the Senate bill.
“I think there are a number of things that we can do to make the agency work better, but I think the Senate really went down the wrong path and I would hope that we would not choose to follow the Senate in this matter,” Rep. Peter DeFazio (D-Ore.), House Transportation and Infrastructure Committee ranking member, said at the Subcommittee on Railroads, Pipelines and Hazardous Materials hearing.
These actions are the latest on the path to addressing the lapsed authorization for pipeline safety programs. The 2012 reauthorization (Pub. L. No. 112–90) expired Sept. 30, but the agency still hasn't completed action on 16 out of 42 mandates from that law. Both chambers have put an emphasis on helping PHMSA to complete those mandates in this next authorization.
Energy and pipeline companies such as the Pacific Gas and Electric Co. and the American Petroleum Institute, as well as environmental group Blue Green Alliance, have disclosed lobbying on pipeline safety reauthorization at some point over the last year (16 DEN A-9, 1/26/16).
SAFE PIPES Act
The Senate's bill, which would reauthorize these programs through 2021, would require PHMSA to address these leftover mandates before initiating most other new rulemakings.
It would also lower maximum funding levels for pipeline safety program, give the agency “direct hire” authority to help fill open inspector positions and require the promulgation of standards for underground natural gas storage facilities. The Senate bill has been broadly supported by the pipeline industry.
The bill, which was approved by the Senate Commerce, Science and Transportation Committee Dec. 9 by a voice vote, would cost $50 million over five years, according to a recently released Congressional Budget Office analysis (237 DEN A-9, 12/10/15).
“The Senate must pass this robust, bipartisan legislation,” Sen. Deb Fischer (R-Neb.) said on the Senate floor Feb. 25. “We all have a responsibility to prioritize, not only the efficient permitting and construction of energy infrastructure, but also the safety and security of our nation's extensive pipeline network.” Fischer introduced the bill.
House Discussions
Discussion at the House subcommittee hearing touched on some similar issues; however, there were some areas of disagreement and new areas for inclusion in the reauthorization debated.
For example, similar to the Senate bill, several congressmen Feb. 25 called for the nation's pipeline safety regulator to establish minimum requirements for underground natural gas storage facilities. These comments centered on the now plugged Aliso Canyon well leak in Los Angeles that caused roughly 4,400 residents to be relocated.
Reps. Stephen Knight (R-Calif.) and Brad Sherman (D-Calif.) said there needs to be minimum federal standards. Sherman pointed to codifying American Petroleum Institute standards for these facilities as a minimum starting point.
Rep. Michael Capuano (D-Mass.) said that what PHMSA really needs to protect the public from risks related to these facilities is to obtain the authority to issue emergency orders. That step would allow the agency to immediately require facilities follow API practices, he said.
Rulemaking, Other Issues
DeFazio also notably took issue with a Senate provision that would limit PHMSA's ability to develop new rules, which he said would inappropriately tie the agency's hands. The clause would affect all of the agency's rulemaking activities, including those for the hazardous materials transportation portion of its functions, he said.
Congress should strengthen the nation's pipeline safety criminal statute for gas pipelines, Rep. Jackie Speier (D-Calif.) said. PHMSA has the authority to assess criminal penalties to hazardous materials entities who knowingly, willfully or recklessly violate the law; however, for pipelines the standard is knowingly or willfully violate the law, she said.
“These corporations appear to think that destroying people's lives … is just a cost of doing business,” Speier said. “Let those responsible for these tragedies be held accountable for their actions, or their lack of actions.”
Some lawmakers were more tentative. Rep. John Mica (R-Fla.) also questioned Marie Therese Dominguez, the PHMSA administrator, regarding whether the agency needed to codify an agency-supported API standard on safety management systems for pipelines. Safety management systems, which are already used in the aviation industry, are business processes that help companies identify, monitor and address safety issues related to operations.
While Dominguez said she “would never take codification off the table,” she said education on these systems and this standard is the first appropriate step.
Mica replied, “You want the highest standards. You also want those to be met,” questioning whether PHMSA would be able to determine “noncompliance.”
More Authority to States
But while many lawmakers at the House hearing pushed for more PHMSA authority, some questioned whether the federal agency already has too much on its plate. For example, Rep. Todd Rokita (R-Ind.) asked whether it would make more sense to give states some of what is currently the federal agency's authority.
“I think that balance that exists right now is a good balance,” Dominguez said.
Looking forward, Rep. Jeff Denham (R-Calif.), chairman of the subcommittee on railroads, noted at the hearing that pipeline reauthorization would be his top legislative priority this year. The House will likely introduce its own bill, Jim Billimoria, a spokesman for the House Transportation and Infrastructure Committee, told Bloomberg BNA in an e-mail.
“The bill will be bipartisan, and we're looking forward to continuing to work with our colleagues from the Committee on Energy and Commerce as we move a bill forward,” Denham said at the hearing. A House Energy and Commerce subcommittee will have a hearing on this issue March 1.
Looking Forward
Brigham McCown, former acting administrator for PHMSA, told Bloomberg BNA that there are differences between the House and Senate on these issues. However, both sides of the aisle in the House “are solidly behind” the “vast majority” of the Senate bill, he said.
“I wouldn't expect to see the House propose something that's far more complex than what the Senate's done,” McCown, now chief executive officer of the Alliance for Innovation and Infrastructure, said.
For PHMSA's part, Dominguez told Bloomberg BNA that her agency worked with the Senate on the SAFE PIPES Act, and would continue working with the House on the bill. The “bottom line for us,” she said, “is to get a solid pipeline reauthorization done this year.”
“The Congress has clearly demonstrated that they want to invest in PHMSA moving forward,” Dominguez said. “We want to make sure that we're structured in a way that actually we're more efficient, that we can carry out those mandates in a more streamlined form and that we're authorized to do so.”
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38 DEN A-25 PHMSA Updates Strategic Framework: Dominguez
Feb 26, 2016 | BNA Daily Environment Report
The nation's pipeline safety regulator has updated its strategic framework through 2021, the agency's administrator said Feb. 25 at a House subcommittee hearing. The Pipeline and Hazardous Materials Safety Administration's PHMSA 2021 plan notably pushes for use of data and analytics to be more proactive in safety efforts; for implementation of safety management systems; and for improved transparency and public engagement, Marie Dominguez, the PHMSA administrator, said at the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials. Safety management systems, which are already used in the aviation industry, are business processes that help companies identify, monitor and address safety issues related to operations. Last year, the American Petroleum Institute finalized its own standard for implementing these systems for pipelines, a standard PHMSA supports. PHMSA didn't respond to Bloomberg BNA's message requesting additional details on the framework.
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PTC Safety System Could Launch as Early as Monday on SEPTA's Warminster Line
Feb 25, 2016 | Philly Voice
By John Kopp
A new, federally mandated safety system could be operational on SEPTA's Warminster Regional Rail line as soon as Monday, the agency said Thursday.
Over the next several nights, the Federal Railroad Administration will finish a series of tests on Positive Train Control, a system of speed control technology, on the Warminster line, the first of SEPTA's Regional Rail lines to get it, according to Jeffrey D. Knueppel, general manager of the transit agency.
Software upgrades will be uploaded this weekend to 110 rail cars needed to complete the Revenue Service Demonstration, which will be done during regular service operations.
"We're coming to the end of our work," Knueppel said. "We've done just about everything we can do to have the system ready."
Knueppel said the FRA has indicated its tests are going well. He said that PTC could be operational on Monday, but stressed the situation remains fluid. That's the earliest date possible, he said.
"The testing from all accounts, so far, is going well," Knueppel said. "What's not as clear is when the FRA will be satisfied and allow us to start operating on the Warminster line."
SEPTA then will begin rolling out PTC on all of its Regional Rail lines, a progression that could add the technology to a new line every couple of weeks. The technology automatically slows or halts trains exceeding speed limits, among other safety prevention measures.
"We do expect that once we get going it will be a progression that will continue at a decent pace," spokesman Andrew Busch said. "It's not going to be anything that's going to stretch into next year or anything like that."
SEPTA is installing the same technology – Advanced Civil Speed Enforcement System – as Amtrak. But it is the first commuter rail operator to utilize the ACSES technology, which serves as an overlay to Automated Train Control-equipped trackage. That combination meets FRA guidelines for a PTC system.
SEPTA opted to use ACSES, because it shares some railways with Amtrak, Knueppel said. Otherwise, the trains would have to use two systems, which Knueppel described as problematic. That's also why SEPTA spent $8 million to separate its trains from running on a stretch of CSX tracks.
The Amtrak derailment last May did not cause SEPTA to expedite its PTC process, Knueppel said. Amtrak train No. 188 was traveling 102 mph through a 50 mph zone, but automatic train control technology would have prevented the derailment. The crash killed eight passengers and injured more than 200 others.
SEPTA's Airport line reaches 79 mph and the West Trenton line tops out at 70 mph, Knueppel said. The other lines top out in the 60 mph range.
In addition to controlling train speeds, PTC also ensures trains adheres to train signals and follows safety restrictions in work zones and railroad crossings.
The Warminster line is the first to receive PTC because trains run on a single track, Knueppel said. He said the Fox Chase and Doylestown lines, which also run on a single track, also are high priorities.
"That's one of the biggest safety concerns – running two ways on a single track," Knueppel said.
PTC would have prevented a head-on collision between two SEPTA trains traveling on the Warminster line in 2006, Knueppel said. The trains hit at 15 mph, injuring 30 people.
"That's the type of thing that this system prevents," Knueppel said.
SEPTA has alerted passengers on the Warminster line that PTC soon will become operational, but they should not experience a noticeable difference.
"We've had SEPTA ambassadors out at stations on the line this week giving people literature about it," Busch said. "It's not necessarily something that people are going to notice in their travel. We just want to make them aware that we're doing this."
SEPTA has spent $328 million on efforts to install PTC across its rail system. In addition to installing ACSES as an overlay, SEPTA also needed to install ATC on some of its tracks.
SEPTA initially planned to have PTC operational by Dec. 31, 2015. But when Congress extended the federal deadline until 2018, the FRA required all commuter rail operators to resubmit their plans for approval, delaying SEPTA's process, Busch said.
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Some Parts of Clean Power Plan Will Stick, Panelists Say
Feb 26, 2016 | BNA Daily Environment Report
By Nushin Huq
While the Environmental Protection Agency's Clean Power Plan might be overturned, the trajectory towards lower carbon emissions is here to stay, panelists said in Houston on Feb. 25.
Ohio took a dual path approach to the Clean Power Plan, both challenging the rule as well as preparing for implementation in case it survives legal challenges, Asim Haque, a commissioner at the Ohio Public Utilities Commission, said at the IHS CERAWeek conference.
On the other hand, Texas is holding off on moving forward on any actions to comply with the plan.
“We're going to wait until the final rules,” said Toby Baker, a commissioner at the Texas Commission of Environmental Quality. “I do feel like it will change from what it is now.”
Other states have tried to get in front of prior environmental regulation, and then have had to backtrack when final rules change, Baker said.
The U.S. Supreme Court stayed the implementation of the Clean Power Plan. Many states halted the efforts to implement the plan while other states, such as Minnesota and Colorado, have continued with plans for compliance (28 DEN A-1, 2/11/16).
There is definitely a drive toward clean energy that has grown, with or without the new rule, Haque said.
“Power delivery was always framed in terms of safe utility services, cost-effective services, reliability,” Haque said. “Now you have to add ‘cleaner.’ The drive is there. When I first started as a lawyer, the environmental groups were fringe movements. Now it's mainstream.”
Industry Moving to Cleaner Power
The transition is already going on in industry, and the transition to low carbon will continue, said Scott Weaver, manager of strategic policy analysis at American Electric Power, a large power company based in Columbus, Ohio.
“We have significant issues with the rule,” Weaver said. “But a lot of parts of the Clean Power Plan are sticky. By sticky, I mean the idea of limiting carbon isn't going away. Some type of carbon rule will ultimately stay.”
Jack Ihle, director of environmental policy and emerging technology for Xcel Energy, agreed that the transition to lower carbon power generation is already underway. He said his company, a power provider in states that include Minnesota and Colorado, wanted an earlier base year for the Clean Power Plan.
“We wish the baseline year was 2005 so we could have gotten credit for all the renewable investment already made,” Ihle said. “What we're hoping for now is that the current baseline is not moved up from 2012 to 2015.”
Texas' Baker questioned whether the regulation was needed given that the current trajectory in industry was towards a lower carbon emissions.
Leakage Rules Criticized
The panel also touched on some specifics of the rule and how it would be implemented if it survived.
Weaver and Ihle criticized the leakage rules in the plan, saying they presented practical and legal problems. Leakage refers to when power companies shift generation to new natural gas-fired power plants that aren't subject to the Clean Power Plan's requirements and face less stringent emissions limits.
“I think leakage was put in because they were worried that companies would do a run round the existing facilities cap and build new combine-cycle plants,” Ihle said. “It's unlikely that companies would do that.”
Haque, the Ohio commissioner, said that from a regulatory perspective, many states are not including all the necessary state agencies coming to the table to plan for compliance.
“There are states where the public utilities commission is not involved in discussions around this plan,” Haque said.
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EPA Sued Over Missed Air Toxics Review Deadlines
Feb 26, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of environmental groups wants a federal district court to compel the Environmental Protection Agency to complete reviews of hazardous air pollution emissions standards covering 13 different industrial sectors (Blue Ridge Envtl. Def. League v. McCarthy, D.D.C., No. 1:16-cv-364, 2/24/16).
The environmental plaintiffs, led by the Blue Ridge Environmental Defense League, alleged that EPA Administrator Gina McCarthy has failed to complete mandatory actions under the Clean Air Act to review and revise, if necessary, air toxics standards within eight years after the standards are initially promulgated. The agency has missed the statutory review deadline by at least three-and-a-half years for each of the 13 source categories cited in the complaint, which was filed Feb. 24 in the U.S. District Court for the District of Columbia.
The Clean Air Act requires the agency to conduct two reviews for each hazardous air pollution standard: a residual risk review intended to assess remaining health risks not addressed by the standards and a technology review intended to account for improvements in pollution controls and other technology.
Source Categories
The environmental groups' complaint covers emissions standards applicable to the following source categories:
• leather finishing operations, promulgated in February 2002;
• wet-formed fiberglass mat production, promulgated in April 2002;
• rubber tire manufacturing, promulgated in July 2002;
• surface coating of large appliances, promulgated in July 2002;
• friction materials manufacturing facilities, promulgated in October 2002;
• surface coating of metal furniture, promulgated in May 2003;
• surface coating of wood building products, promulgated in May 2003;
• printing, coating and dyeing of fabrics and other textiles, promulgated in May 2003;
• taconite iron ore processing, promulgated in October 2003;
• miscellaneous coating manufacturing, promulgated in December 2003;
• lime manufacturing plants, promulgated in January 2004;
• iron and steel foundries, promulgated in April 2004; and
• plywood and composite wood products, promulgated in July 2004.
Groups Cite McCarthy's Obligation
The complaint requested that the court declare that McCarthy's failure to complete the required reviews constitutes a failure to perform a nondiscretionary duty under the Clean Air Act, set an expeditious deadline for the agency to complete those reviews and retain jurisdiction over the issue to ensure that the EPA complies with those deadlines.
The other environmental plaintiffs who sued the EPA are the Sierra Club, the Midwest Environmental Defense Center and Clean Wisconsin, a nonprofit group that advocates for clean air and water. The plaintiffs are represented by Earthjustice attorneys Nicholas Morales, Emma Cheuse and James Pew.
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Clean Power Plan Lawsuits Could Shape EPA Authorities
Feb 26, 2016 | BNA Daily Environment Report
By Andrew Childers
Upcoming litigation over the Environmental Protection Agency's Clean Power Plan could further define the parameters of the agency's ability to use its existing statutory authority to tackle new environmental challenges, legal experts said.
The U.S. Supreme Court, led by the late Justice Antonin Scalia, has increasingly narrowed the options open to the EPA for consideration under environmental statutes in decisions setting limits on greenhouse gas permitting requirements and requiring the agency to consider costs when regulating toxic pollutants from power plants, Emily Hammond, a George Washington University Law School professor, said Feb. 25 at a symposium sponsored by the Georgetown Environmental Law Review.
Upcoming litigation over the carbon dioxide standards for the existing fleet of power plants (RIN 2060-AR33) may set new standards for cooperation with states and the EPA's ability to pursue further regulation of greenhouse gases under the Clean Air Act, symposium participants said.
The Clean Power Plan is being challenged by 27 states as well as several utility and industry groups in the U.S. Court of Appeals for the District of Columbia Circuit (West Virginia v. EPA, D.C. Cir., No. 15-1363, amicus briefs filed, 2/23/16).
Innovation Up Against Court ‘Skepticism.'
The symposium's theme was “Legal Innovation Within Old Laws,” but opponents of the Clean Power Plan have repeatedly cited Scalia's 2014opinion in a decision that limited the scope of the EPA's greenhouse gas permitting program that warned attempts to find new powers in existing statutes would be meet with “skepticism” from the court (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2014 BL 172973, 78 ERC 1585 (2014)).
“That played a huge role in the briefing of the Clean Power Plan,” Georgetown University Law Center professor and former EPA policy official Lisa Heinzerling said.
Attorneys from the Georgetown University Law Center represent several medical groups that will file amicus briefs in support of the EPA in the lawsuits.
States and industry groups opposed to the Clean Power Plan repeatedly cited the Util. Air Regulatory Grp. v. EPA decision in their opening briefs to the D.C. Circuit (35 DEN A-16, 2/23/16).
Opponents ‘Emboldened' by Supreme Court
Though the D.C. Circuit hasn't yet heard oral arguments in challenges to the Clean Power Plan, the Supreme Court has already stepped in to stay the rule's implementation, a move legal experts say is unprecedented and already changing how opponents of regulation view litigation (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).
Heinzerling said that decision will “embolden” opponents of EPA regulations to petition the Supreme Court for earlier intervention.
“The Supreme Court is probably going to see a lot more requests for stays,” she said. “Who knew the Supreme Court was available to review executive actions directly? That's so fantastic. Cut out the middle man. No more D.C. Circuit. And guess what? Two weeks later we've already seen this.”
A coalition of 20 states, led by Michigan, on Feb. 24 petitioned the Supreme Court to also stay the EPA's Mercury and Air Toxics Standards for power plants (Michigan v. EPA, U.S., No. 15A886, 2/24/16; 37 DEN A-2, 2/25/16).
Utilities' Compliance Costs
The Supreme Court has already ruled that the EPA erred by not considering utilities' compliance costs when deciding whether regulating toxic pollutants from power plants under Section 112 of the Clean Air Act was warranted. The D.C. Circuit has remanded the rule to the agency for correction.
However, states opposed to the rule argue that the Supreme Court's prior decision on the toxic pollutant standards is nullified if the rule is allowed to stay in place while the EPA works on corrections.
The Supreme Court granted the Clean Power Plan stay after “a very hasty review” that lasted only a few days, said Vickie Patton, general counsel at the Environmental Defense Fund, which is coming to the EPA's aid in the litigation. By contrast, the D.C. Circuit had deliberated for a month after a lengthy briefing process before denying similar stay requests.
Patton called the decision “radical, shocking, without precedent in American law.” Without the benefit of a lower court's ruling on the Clean Power Plan, Patton said attorneys have very little context to interpret the Supreme Court's decision or the factors it weighed in granting the stay.
“We have very scant information about what the court based the decision on. We have just a few lines in an order,” she said.
Court's Action Called ‘Power Grab.'
Heinzerling, who analyzed the Supreme Court's stay decision in a Feb. 24 paper, “The Supreme Court's Clean-Power Power Grab,” said the court never articulated where it found the authority to reach down and stay the Clean Power Plan before it could even be litigated by the D.C. Circuit. Even petitioners seeking the stay couldn't agree on where the Supreme Court would derive its authority from, she said.
“That's a very consequential decision, yet it was made on the basis of minimal briefing, confused briefing,” Heinzerling said. “I just don't think that's the way to govern.”
The upcoming Clean Power Plan litigation also could have implications for cooperative federalism between the EPA and states moving forward.
Role Delegated to States
Many Clean Air Act programs delegate a role to states, giving them the authority to implement EPA regulations and providing a space for local regulators to experiment with innovative new approaches, William Buzbee, a law professor at Georgetown University Law Center, said.
The EPA had touted its outreach to states and the way the Clean Power Plan builds on successful state programs when developing the rule. However, states opposed to the regulation have argued that it violates the principles of cooperative federalism by overstepping authority reserved to states to regulate the power sector.
“Both sides are building on federalism, and how the court rules on federalism will be absolutely central,” Buzbee said.
Old Statute Offers New Opportunities
Though the Supreme Court has warned the EPA about seeking new powers from existing statutes, Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, said the agency could tap its international air pollution authorities under Section 115 of the Clean Air Act.
Legal experts have touted Section 115 as an alternative approach to greenhouse gas regulations after the Supreme Court stayed the Clean Power Plan, which many took as a sign the rule is in jeopardy (28 DEN A-5, 2/11/16).
Section 115 would give the EPA “broad latitude” to require states to update their state implementation plans to include measures to reduce greenhouse gas emissions, which could include economywide emissions trading, said Burger, who represents cities and mayors supporting the EPA in the Clean Power Plan litigation.
Agency Would Make Endangerment Finding
Section 115, which the EPA has never previously used, requires that the agency make an endangerment finding for an international pollutant—which it has for greenhouse gases—and then ensure reciprocity with other nations, a condition that could be fulfilled by the international climate agreement reached in Paris in December, Burger said.
Burger had joined other academics from the Center on Global Energy Policy at the Columbia University School of International and Public Affairs, the Institute for Policy Integrity at the New York University School of Law and the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles School of Law in writing a recent paper exploring the possibility of regulating greenhouse gases under Section 115.
The EPA under President George W. Bush had included Section 115 as one of its regulatory options in a 2008 advance notice of proposed rulemaking detailing options for regulating greenhouse gases.
Would Let EPA Cast Wide Net
Employing Section 115 would allow the EPA to achieve emissions reductions from a wide range of sectors at once without having to regulate each source category individually, as it does now.
Given the upcoming battle over the EPA's interpretation of its authority under Section 111(d) of the Clean Air Act as part of its Clean Power Plan, Burger said Section 115 offers another advantage: The statute is much clearer and speaks more directly to global pollutants like greenhouse gases.
“It is the plain language of the statute as well,” he said.
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EPA Urges Judges to Reject Charges of Lobbyists' Influence
Feb 25, 2016 | E&E News PM
By Robin Bravender
U.S. EPA doesn't think a conservative legal group should be allowed to file documents in federal court alleging that lobbyists improperly helped write the agency's Clean Power Plan.
The Energy & Environment Legal Institute told the U.S. Court of Appeals for the District of Columbia Circuit on Friday that EPA's controversial greenhouse gas rule for power plants should be sent back to the drawing board because the agency crafted provisions of the plan through "backdoor dealings" with environmental lobbyists (E&ENews PM, Feb. 22).
As part of a massive lawsuit challenging the Clean Power Plan, the legal group asked the judges for permission to file documents separately from the other challengers, saying "it has become clear that other petitioners do not, for various reasons, support the arguments being raised" and "may indeed feel compelled to oppose" the argument "regarding the requirement to docket ex parte contacts between outside groups and a rule-making agency."
EPA urged the court today to reject that request.
"EELI has not justified why it, alone among all the petitioners and intervenor-petitioners in this action, should be allowed to file an additional brief to advance a unique argument (apparently one that is not joined in by any other party)," EPA's attorneys told the judges today.
"The fact that EELI was apparently unable to convince other parties to devote space to its unique issue in either petitioners' or intervenor-petitioners' briefing simply suggests that this issue is, in the view of most parties on that side of the case, one of lower priority than the issues that were briefed," the administration said. EPA's lawyers also questioned whether the group has sufficient standing in the case, meaning it could show that its members would be harmed by the rule.
Central to EELI's argument are allegations that former EPA Senior Policy Adviser Michael Goo used both his official and personal email accounts to share planning documents and drafts of rule provisions with staffers at the Sierra Club, Natural Resources Defense Council and Clean Air Task Force. Goo was NRDC's climate legislative director before working at EPA during the Obama administration.
Christopher Hessler, founding partner at AJW Inc., where Goo is now a partner, said today, "There are legitimate concerns being raised by responsible business interests regarding the Clean Power Plan. However, an email exchange that took place between Michael Goo and an environmentalist in 2011 -- three years prior to the 2014 proposal of the Clean Power Plan -- isn't one of them."
Hessler added, "This is a red herring that originates with a professional climate skeptic whose body of work reveals an impressive disregard for facts or science. I would hope that anyone paying attention to this would look carefully at the law and facts relating to how the Clean Power Plan was actually developed -- with input from an unprecedented range of stakeholders -- before considering the views of a fringe group of climate dead-enders."
Click here to read EPA's motion to the court.
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