Preview Newsletter
AM ACC 3/17/2016
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President Obama Nominates Merrick Garland to the Supreme Court
Mar 16, 2016 | Washington Post
By Juliet Eilperin, Mike DeBonis and Jerry Markon
President Obama on Wednesday nominated Merrick Garland to serve on the Supreme Court, setting up a protracted political fight with Republicans who have vowed to block any candidate picked by Obama in his final year in office. -
We Oppose Judge Garland’s Confirmation
Mar 16, 2016 | Wall Street Journal
By Juanita Duggan
President Obama on Wednesday formally nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. -
(ACC Blog) Luck of the Irish (And Everyone Else): New FSAI Diet Study Concludes ‘Exposure to BPA is of Low Concern’
Mar 17, 2016 | American Chemistry Matters
By Steven Hentges
Just in time for St. Patrick’s Day, the Food Safety Authority of Ireland (FSAI) has published the results of its Total Diet Study (TDA), an analysis of 147 foods and beverages representative of the normal Irish diet. -
(ACC Mentioned) Irish Food Safety Study Supports BPA Safety
Mar 17, 2016 | Wisconsin Ag Connection
The Food Safety Authority of Ireland published the results of a new study that analyzed nearly 150 foods and beverages representative of the normal Irish diet for a range of chemicals. -
ECHA Appeals Board Decision Could Affect REACH Registrations
Mar 17, 2016 | BNA Daily Environment Report
By Stephen Gardner
The Board of Appeal of the European Chemicals Agency decision on the verification of information provided in REACH registration dossiers, and on the obligation under REACH for companies handling the same substances... -
Lead Service Lines Must Be Replaced as Soon as Possible to Protect Children
Mar 16, 2016 | Environmental Defense Fund
By Tom Neltner
Two years ago, the Environmental Protection Agency (EPA) asked me to serve on its new multi-stakeholder workgroup to develop recommendations to improve the agency’s 1991 lead in drinking water rule. -
In Flint and Beyond, Water Should Come Unleaded
Mar 17, 2016 | The Hill - Congress Blog
By Diane Regas
We’ve all watched the unfolding events in Flint, Michigan with growing dismay. A decision to cut corners, compounded by mismanagement and secrecy, resulted in nearly 8,000 children being exposed to lead. -
Obama Supreme Court Pick Garland Seen Backing Agency Deference
Mar 16, 2016 | InsideEPA
By Lee Logan
If appellate court judge Merrick Garland, President Obama's pick to replace the late Supreme Court Justice Antonin Scalia, is ever confirmed to the high court, he brings with him a record that favors deference to agency decisions... -
Barrasso Touts 'Better Way' on Methane
Mar 17, 2016 | E&E Daily
By Amanda Reilly
Sen. John Barrasso (R-Wyo.) yesterday took to the Senate floor to both slam the Obama administration's plan to regulate oil and gas methane emissions and to promote legislation that would expedite the permitting of natural gas lines on federal lands. -
EOR Operators Raise Legal Concerns over ESPS' GHG Reporting Burdens
Mar 17, 2016 | InsideEPA
By Bridget DiCosmo
Enhanced oil recovery (EOR) operators are using legal filings to outline concerns over provisions in EPA's existing power plant greenhouse gas rule that they say will force EOR facilities using carbon dioxide -
Prospects For a Trump-Clinton Race Confound Oil Backers
Mar 17, 2016 | PoliticoPro
By Elana Schor
The oil industry's top lobbyist doesn't know who he will vote for in November. -
Twelve House Republicans Form ‘Free-Market' Energy Group
Mar 17, 2016 | BNA Daily Environment Report
By Anthony Adragna
Twelve House Republicans have formed a new working group designed to boost new clean energy technologies while also ensuring environmental protection. -
Our Critical Infrastructure is Too Vulnerable to Cyberattacks
Mar 16, 2016 | The Hill - Congress Blog
By Scott DePasquale
Last week, Sen. Charles Schumer (D-N.Y.) confirmed that, two years ago, the Bowman Avenue Dam in Rye Brook, New York was accessed remotely by Iranian hackers – a move characterized as “shot across our bow”... -
EPA-OSHA Prosecution Effort is Yielding Results
Mar 17, 2016 | BNA Daily Environment Report
By Stephen Lee
The Justice Department's tough new approach for cracking down on worker safety and environmental crimes is already helping uncover industries and activities that should be prosecuted, a Justice Department official said March 15. -
Pipeline Safety Bill Approved by House Subcommittee
Mar 17, 2016 | BNA Daily Environment Report
By Ari Natter
A House subcommittee has approved pipeline safety legislation after removing a provision that would allow citizens to sue the Pipeline and Hazardous Materials Safety Administration for failing to write rules. -
Supreme Court Asked to Review Mercury Rule Remand Order
Mar 17, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of 20 states wants the U.S. Supreme Court to review a lower court's decision to leave the Mercury and Air Toxics Standards in place while the Environmental Protection Agency addresses a legal flaw... -
House Watchdog Presses White House on Subpoenaed Documents
Mar 17, 2016 | E&E News PM
By Hannah Hess
House Oversight and Government Reform Committee Republicans today asked President Obama's regulatory chief for more details about a subpoena related to the panel's ongoing investigation of U.S. EPA's controversial water rule. -
DOJ Urges Ohio District Court to Dismiss CWA Rule Suit
Mar 17, 2016 | InsideEPA
Department of Justice (DOJ) attorneys are urging a federal district court in Ohio to dismiss a lawsuit filed by several states over EPA and the Army Corps of Engineers' joint Clean Water Act (CWA) jurisdiction rule...
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President Obama Nominates Merrick Garland to the Supreme Court
Mar 16, 2016 | Washington Post
By Juliet Eilperin, Mike DeBonis and Jerry Markon
President Obama on Wednesday nominated Merrick Garland to serve on the Supreme Court, setting up a protracted political fight with Republicans who have vowed to block any candidate picked by Obama in his final year in office.
Garland, 63, is a longtime Washington lawyer and jurist who is chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Considered a moderate, Garland is widely respected in the D.C. legal community and was also a finalist for the first two Supreme Court vacancies Obama filled.
In announcing his choice in the White House Rose Garden, Obama said he followed “a rigorous and comprehensive process” and that he reached out to members of both parties, legal associations and advocacy groups to gauge opinions from “across the spectrum.”
He said Garland “is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”
With Garland standing by his side, Obama said choosing a replacement for the late justice Antonin Scalia, who died suddenly last month, is “not a responsibility that I take lightly.”
“I said I would take this process seriously, and I did,” the president said. “I chose a serious man and an exemplary judge.”
“To find someone with such a long career in public service, marked by complex and sensitive issues, to find someone who just about everyone not only respects but genuinely likes, that is rare,” Obama said. “And it speaks to who Merrick Garland is, not just as lawyer but as a man.”
Despite “a political season that is even noisier and more volatile than usual,” Obama urged the Senate to take up the nomination, saying that lawmakers should treat the process “with the seriousness and care it deserves.”
After Obama introduced him, Garland promptly became emotional as he thanked the president. “This is the greatest honor of my life,” Garland said, “other than Lynn agreeing to marry me 28 years ago.”
He added that “a life of public service is as much a gift to the person who serves as it is to those he is serving. And for me, there can be no higher public service than serving as a member of the United States Supreme Court.”
Saying that it was “a great privilege to be nominated by a fellow Chicagoan” Garland stressed his “fidelity to the Constitution and the law.” If confirmed by the Senate, “I promise to continue on that course,” he said.
Senate Majority Leader Mitch McConnell (R-Ky.) reiterated Wednesday that the GOP-controlled Senate would refuse to consider Garland’s nomination, asserting in a series of tweets that Obama made the nomination “to politicize it for the purposes of the election.”
A spokesperson for McConnell said McConnell spoke with Garland on the phone and explained to the nominee his stance on waiting for the next president’s pick.
“Since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well,” said the spokesperson in a statement.
House Speaker Paul D. Ryan (R-Wis.) said he fully supports McConnell’s stand. “We should let the American people decide the direction of the court,” he said in a statement Wednesday.
Sen. Susan Collins (R-Maine) said she would meet with Garland and “begin the process of evaluating this nomination.”
“Judge Garland is a capable and accomplished jurist,” said Collins in a statement. “The White House has requested that I meet with him, and I look forward to doing so, as has been my practice with all Supreme Court nominees.”
At least a couple of Republican senators acknowledged discussions of whether the GOP Senate might confirm an Obama nominee in a “lame duck” session after the election, should Hillary Clinton be elected president.
“If the election doesn’t go the way Republicans want it, there will be a lot of people open to that I’m sure,” said Sen. Jeff Flake (R-Ariz.), who sits on the Judiciary Committee.
Clinton, the front-runner for the Democratic presidential nomination, said Obama “has met his responsibility” under the Constitution and that now it is up to senators to meet theirs.
“Evaluating and confirming a Justice to sit on this nation’s highest court should not be an exercise in political brinkmanship and partisan posturing,” she said in a statement Wednesday. “It is a serious obligation, performed on behalf of the American people, to ensure a highly qualified candidate fills a vacancy on the Court. That obligation does not depend on the party affiliation of a sitting president, nor does the Constitution make an exception to that duty in an election year.”
Clinton hailed the choice of Garland, saying he has “a brilliant legal mind, and a long history of bipartisan support and admiration.” She called on the Senate to take up the nomination “immediately” and said refusing to do so would be “entirely unacceptable.”
If the Senate declines to take up Garland’s nomination before Obama leaves office, or votes it down, the next president will have the option of resurrecting the nomination or choosing someone else to fill the vacancy on the Supreme Court. Either way, the process would begin anew with the next Congress.
White House officials, however, said they were not entertaining such a possibility. “We expect Chief Judge Garland to be confirmed in this Congress, period,” White House spokesman Eric Schultz told reporters in a telephone call Wednesday.
Seven sitting Republican senators voted to confirm Garland to the federal bench in 1997: Dan Coats (Ind.), Thad Cochran (Miss.), Susan Collins (Maine), Orrin Hatch (Utah), James M. Inhofe (Okla.), John McCain (Ariz.), and Pat Roberts (Kan.).
GOP lawmakers, though, have said since Scalia’s death that Obama should leave the choice of a new justice to his successor and that they have no intention of holding a hearing or a vote on the president’s pick.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) issued a statement Wednesday in which he did not mention Garland by name, but said Republicans’ refusal to consider the president’s nomination was within the bounds of its “constitutional authority.”
“A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests,” he said.
Garland is a Chicago native who graduated from Harvard College and Harvard Law School. After becoming a partner at the law firm Arnold & Porter, he joined the Justice Department, where he handled the drug investigation of then-D.C. Mayor Marion Barry as an assistant U.S. attorney in the District.
Ascending the ranks, Garland became principal associate deputy attorney general, where he supervised the massive investigations that led to the prosecutions of the Unabomber and the bombers of the federal building in Oklahoma City.
Garland was appointed to the D.C. federal appeals court by President Bill Clinton in April 1997 and confirmed on a 76-to-23 vote. In February 2013, Garland became chief judge of the D.C. federal appeals court.
Jamie Gorelick, a former deputy attorney general who worked with Garland at the Justice Department in the Clinton administration, considers her former colleague “supremely qualified” for the high court.
Gorelick praised Garland’s role at the Justice Department in supervising the Unabomber and Oklahoma City investigations.
“We had a lot of very seasoned prosecutors, but when you have a matter that is both substantively difficult and cuts across the department, a really talented person such as Merrick will lead those,” said Gorelick. She added that Garland is a “brilliant lawyer and judge” who is known to be highly collegial even with colleagues across the ideological spectrum.
White House senior adviser Brian Deese, who is overseeing the nomination process, said that Garland’s ability to develop trust with different groups, as well as his “fundamental decency,” make him the perfect person for the court in such a divisive time.
“It’s the president’s assessment that he’s the best possible candidate for the circumstances we find ourselves in right now,” Deese said.
Initial reaction from interest groups supportive of the president was mixed. National Organization for Women President Terry O’Neill praised Garland for “ a rigorous intellect, impeccable credentials, and a record of excellence.”
But she also said his record on women’s rights was “more or less a blank slate. Equally unfortunate is that we have to continue to wait for the first African American woman to be named. For this nomination, the so-called political experts ruled that the best choice for the highest court in the nation was a cipher — a real nowhere man.”
A four-page document circulated Tuesday afternoon among a small group of the administration’s allies, with the heading, “Read What Republicans Had to Say About President Obama’s Supreme Court Nominee, Merrick Garland, Before He Was President Obama’s Supreme Court Nominee,” highlighted the support he has enjoyed from lawmakers in the past.
“Garland has had a distinguished legal career, and prior to the GOP’s historically unprecedented obstruction, was a favorite of Senate Republicans alongside progressives,” the briefing material says. “When earlier Supreme Court vacancies occurred in the seats now filled by Justices Elena Kagan and Sonia Sotomayor, Utah Sen. Orrin Hatch said he would be ‘very well supported by all sides’ as a SCOTUS nominee.”
The document notes that when Obama was filling the first Supreme Court vacancy of his tenure, Hatch was quoted at the time as saying that Garland would be a “consensus nominee” who “would be very well supported by all sides.” The briefing material includes previous descriptions of Garland by leading news organizations as a potential nominee who would attract support of Democrats and Republicans alike.
Chief Justice John G. Roberts Jr., Garland’s colleague on the D.C. Circuit, once said that “anytime Judge Garland disagrees, you know you’re in a difficult area.”
Democrats are also preparing to make the Republicans’ opposition to filling the vacancy an issue in the fall election. Speaking in West Palm Beach, Fla., on Tuesday night, Democratic presidential front-runner Hillary Clinton said in her victory speech that one of the reasons the presidential race matters so much is because the Supreme Court appointment has such enormous policy implications.
“Together, we have to defend all of our rights — civil rights and voting rights, worker’s rights and women’s rights, LGBT rights and rights for people with disabilities — and that starts by standing with President Obama when he nominates a justice to the Supreme Court,” she said, prompting large cheers from the crowd.
While the question of who sits on the nation’s highest court is not traditionally a top-tier election issue, Democrats are hoping to use it as part of a broader narrative about Republican resistance to the president’s policies.
David Greenberg, a professor of history and journalism and media studies at Rutgers University, noted that Richard Nixon first elevated the Supreme Court as an electoral issue in 1968, when he attacked then-Chief Justice Earl Warren and his fellow justices.
“It was putting a liberal-dominated court at the center of the liberal establishment he was attacking,” Greenberg said, for “bringing about all these cultural changes” in the country.
At the moment, more Americans appear to be sympathetic to the White House’s argument. Sixty-three percent of Americans said the Senate should hold hearings on Obama’s nominee to replace Scalia, while 32 percent said it should not hold hearings and leave it to the next president, according to a Washington Post-ABC News poll released last week. Majorities of Democrats and independents supported holding hearings, while Republicans were more evenly split (46-49) and over half of conservative Republicans said hearings should not be held (54 percent).
Administration officials are hopeful that the GOP senators who are most vulnerable this November — Sens. Kelly Ayotte (N.H.), Ron Johnson (Wis.), Mark Kirk (Ill.) and Pat Toomey (Penn.) — may lobby their leaders for a vote if they come under fire back home for blocking the nominee.
“The success or failure of this will depend on the pressure that can be brought to bear on those senators who Mitch McConnell marched out to the firing line,” said one former senior administration official, who asked for anonymity in order to discuss internal White House deliberations.
William Branigin, Mark Berman and Robert Barnes contributed to this report.
https://www.washingtonpost.com/world/national-security/president-obama-to-nominate-merrick-garland-to-the-supreme-court-sources-say/2016/03/16/3bc90bc8-eb7c-11e5-a6f3-21ccdbc5f74e_story.html
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We Oppose Judge Garland’s Confirmation
Mar 16, 2016 | Wall Street Journal
By Juanita Duggan
President Obama on Wednesday formally nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. After studying his extensive record, the National Federation of Independent Business believes that Judge Garland would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers. On behalf of the hundreds of thousands of members we represent, the NFIB opposes Judge Garland’s confirmation.
In NAHB v. EPA, Judge Garland in 2011 refused to consider a Regulatory Flexibility Act (RFA) claim by the National Association of Home Builders against the Environmental Protection Agency despite the law’s clear language. The RFA is one of the few federal statutes that explicitly require certain agencies to take into account the effect of their actions on small employers. Consider that the federal government itself estimates that the typical small business must spend $12,000 per worker annually just to be compliant with federal regulations. With Judge Garland on the Supreme Court, the EPA and other regulators would have a freer hand to impose even more costs on small businesses.
In another case, Rancho Viejo, LLC v. Norton, in 2003, Judge Garland argued that the Commerce Clause, which regulates economic activity between the states, applies to an animal species found in only one state and which has no economic value. In doing so he foreshadowed the creative reasoning that the Obama administration used to defend the Affordable Care Act in NFIB v. Sebelius. We fear that as a pivotal justice on the Supreme Court, Judge Garland could apply his elastic view of the Commerce Clause to almost anything else.
In two other cases involving the National Labor Relations Board, Judge Garland didn’t just side with the government—he argued that business owners should be personally liable for labor violations. In other words, their personal assets, including their homes and their savings, would be exposed to government penalties. What worries us is that Judge Garland has been consistently wrong on labor law. In fact, in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.
With more than 320,000 members, our organization is the country’s largest advocate for small-business owners. When we asked members on Wednesday whether they wanted to fight the Garland confirmation, the response was overwhelming. More than 90% urged us to take action.
It is especially important that we get involved now because this year and in future sessions, the Supreme Court will hear cases in which NFIB is a plaintiff. We are challenging the Waters of the United States rule, an unprecedented expansion of the EPA’s power to regulate water. The Clean Power Plan, another massive expansion of federal power that we are challenging, threatens to drive up energy costs for consumers—and for small businesses.
Given Judge Garland’s record on the D.C. Circuit Court, is there any question about which side he would take in these cases? When it comes to big government versus small business, we know where he would stand.
This is the first time in the NFIB’s 73-year history that we will weigh in on a Supreme Court nominee. As the plaintiff in NFIB v. Sebelius, which upheld the Affordable Care Act, our members know the power that a single Supreme Court justice can wield. We cannot support his elevation to the Supreme Court.
Ms. Duggan is president and CEO of the National Federation of Independent Business.
http://www.wsj.com/articles/we-oppose-judge-garlands-confirmation-1458169299
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Mar 17, 2016 | American Chemistry Matters
By Steven Hentges
Just in time for St. Patrick’s Day, the Food Safety Authority of Ireland (FSAI) has published the results of its Total Diet Study (TDA), an analysis of 147 foods and beverages representative of the normal Irish diet. And yes, the study did include beer.
But beyond those low-carbonated, lukewarm stouts and lagers which famously take on a shade of green this time of year, the FSAI also published results on a range of other chemistries, including various metals, essential nutrients, food additives, food contaminants, and pesticide residues.
Here’s the biggest takeaway from the FSAI analysis: “[o]verall, the results show that the Irish population is generally not at risk from the chemical contaminants analysed in the diet.”
“Exposure to BPA is of low concern”
Bisphenol A (BPA), a building-block chemical primarily used to make polycarbonate plastic and epoxy resins that enable a variety of consumer products, was included in FSAI report. Epoxy resins are commonly used as protective coatings for food and beverage cans is is generally considered the primary source of human exposure to BPA is the diet.
According to FSAI, BPA was detected at low levels in only 30 percent of the samples analyzed. The study then combined the levels found in food with food consumption data to estimate total dietary intake of BPA for both average and above average consumers. Comparison of these values with the most stringent health-based guidance value for BPA in Europe led to the conclusion that “exposure to BPA is of low concern.”
Keep in mind, the FSAI takes its job very seriously. They have the statutory responsibility in Ireland to “ensure the safety of food consumed, distributed, and produced and sold on the Irish market.” As part of this responsibility, FSAI periodically carries out a TDS to “measure the dietary exposure of the population to particular chemicals that may pose a risk to health if taken into the body in excessive amounts.”
When an organization such as the FSAI says exposure to BPA is of low concern – they mean it.
What’s more, the results and conclusion of the FSAI study are consistent with recent findings from the European Food Safety Authority (EFSA). As noted by FSAI, EFSA concluded in January 2015 that “BPA poses no health risk to consumers of any age group (including unborn children, infants and adolescents) at current exposure levels.”
Along with FSAI and EFSA, the US Food and Drug Administration (FDA) has a similar perspective on the safety of BPA. It answers the question “Is BPA safe?” with a single unambiguous word: “Yes.”
So, yes, you can feel free to enjoy your favorite Irish foods (and beer) this St. Patrick’s Day with no concerns about BPA!
https://blog.americanchemistry.com/2016/03/luck-of-the-irish-and-everyone-else-new-fsai-diet-study-concludes-exposure-to-bpa-is-of-low-concern/
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(ACC Mentioned) Irish Food Safety Study Supports BPA Safety
Mar 17, 2016 | Wisconsin Ag Connection
The Food Safety Authority of Ireland published the results of a new study that analyzed nearly 150 foods and beverages representative of the normal Irish diet for a range of chemicals. The study included beer among the foods analyzed, both lager and stout (although it was not specified whether the beer was green).
One of the chemicals analyzed was bisphenol A (BPA), which is a building block chemical that is primarily used to make polycarbonate plastic and epoxy resins, both of which are widely used in an array of consumer products. Epoxy resins are commonly used as protective coatings for food and beverage cans.
"Based on compelling research, government bodies around the world have clearly stated that BPA is safe as used in food contact materials. This study from Irish authorities adds to the chorus of those who listen to the science," said Steven G. Hentges, Ph.D. of the American Chemistry Council's Polycarbonate/BPA Global Group.
The study found that BPA was detected at low levels in only 30 percent of the samples analyzed. The levels found in food were then combined with food consumption data to estimate total dietary intake of BPA for both average and above average consumers (97.5th percentile). Comparison of these values with the most stringent health-based guidance value for BPA in Europe led to the conclusion that "exposure to BPA is of low concern." The results and conclusion of the FSAI study are consistent with recent findings from the European Food Safety Authority (EFSA). As noted by FSAI, EFSA concluded in January 2015 that "BPA poses no health risk to consumers of any age group (including unborn children, infants and adolescents) at current exposure levels."
Along with FSAI and EFSA, the US Food and Drug Administration (FDA) has a similar perspective on the safety of BPA. It answers the question "Is BPA safe?" with a single unambiguous word: "Yes."http://www.wisconsinagconnection.com/story-national.php?Id=590&yr=2016
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ECHA Appeals Board Decision Could Affect REACH Registrations
Mar 17, 2016 | BNA Daily Environment Report
By Stephen Gardner
The Board of Appeal of the European Chemicals Agency decision on the verification of information provided in REACH registration dossiers, and on the obligation under REACH for companies handling the same substances to file joint registrations, could affect hundreds of registrants, experts told Bloomberg BNA March 16.
In the decision (Case No. A-022-2013) published March 15, the Board of Appeal said the agency had been wrong to issue a registration number to a Bulgarian company that submitted a REACH registration dossier for charcoal because ECHA “failed to adequately examine the completeness” of the dossier and because the dossier was “not part of the existing joint submission for the substance.”
The Board of Appeal canceled the ECHA decision that approved the registration and said it should “undertake a fresh completeness check of the submitted registration.”
Vito Buonsante, an adviser on chemicals with environmental law firm ClientEarth, told Bloomberg BNA March 16 that the Board of Appeal decision could have a “potential massive impact” because the issues it raised were common to many REACH registration dossiers.
“This means that there may be hundreds of registrations that if challenged can be annulled,” Buonsante said.
Joint Submission
The appeal against the ECHA decision granting a registration number to the Bulgarian company was filed by a German company, REACheck Solutions GmbH, which acted as the lead registrant in the REACH joint submission for charcoal.
Under the principle in the European Union's REACH law of “one substance, one registration,” companies that produce or import the same substance are supposed to file a joint registration so that data on the substance is shared and tests are not duplicated.
REACheck contended that the Bulgarian company was avoiding sharing the costs of participating in the joint registration, including expenses related to compiling substance data, by filing a separate registration.
The chemicals agency said the REACH regulation did not require it to verify when making an initial automated check on the completeness of REACH registration dossiers that the “one substance, one registration” principle was being observed.
The Board of Appeal, however, said the Bulgarian company “failed to comply with its obligation” under REACH to join the existing joint registration and ECHA should have enforced this requirement.
Inadequate Dossier
The Board of Appeal also found that ECHA breached REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals) by accepting the Bulgarian company's registration dossier and assigning a registration number even though the information in the dossier was inadequate.
ECHA's initial checks on registration dossiers are an automatic process to ensure that required information fields are filled in, but they do not examine the quality of the provided information.
Subsequent to registration, some dossiers are selected for evaluation and companies could be required to amend their dossiers if information is found to be inadequate.
Initial completeness checks do “not verify if the information that is submitted is meaningful. You can actually write, ‘blah, blah, blah,’ and pass the completeness check,” Buonsante said.
He added that “only a few” dossiers go through a subsequent evaluation and nonhazardous substances, such as charcoal, are “very unlikely to be prioritized” for a check.
The Board of Appeal's decision meant that “potentially a lot of decisions can be annulled” in cases where ECHA issued REACH registration numbers for inadequate dossiers on the basis of automatic completeness checks, Buonsante said.
Companies registering non-hazardous substances were thus the “biggest losers” from single registrations made by companies that did not want to contribute to the costs of the joint submission and had filed poor-quality single registrations, Buonsante said.
One Substance, One Registration
But Ruxandra Cana, a partner with Steptoe & Johnson LLP in Brussels, told Bloomberg BNA March 16 that the main impact of the Board of Appeal decision was to reinforce the REACH “one substance, one registration” principle.
“The Board of Appeal clearly intended to analyze whether a subsequent registrant can submit a separate full registration or not and they've decided not. ECHA now needs to reconsider its existing practice related to separate registration dossiers,” Cana said.
On March 16, ECHA told Bloomberg BNA that it had already acted to change its procedures in line with a European Commission implementing regulation that was published Jan. 6 in the EU Official Journal and sought to clarify the rules around joint registrations.
In January, ECHA modified the IT system for REACH registrations so that single registrations are no longer possible when a joint registration exists, and companies are instead directed to join the joint registration (16 DEN A-17, 1/26/16).
On currently valid single registrations that were filed before the modification of the IT system, even though joint registrations already existed, ECHA said it was “analyzing, in light of the [Board of Appeal] decision, the regulatory and technical mechanisms available to require existing registrants to renegotiate with each other by becoming part of the same registration.”
In terms of the adequacy of the registration dossier filed by the Bulgarian company, ECHA said it would allow a “reasonable deadline” for missing information to be provided, but if the company failed “to provide the missing information, their registration will be rejected, and they lose the market access.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=84832373&vname=dennotallissues&fn=84832373&jd=84832373
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Lead Service Lines Must Be Replaced as Soon as Possible to Protect Children
Mar 16, 2016 | Environmental Defense Fund
By Tom Neltner
Two years ago, the Environmental Protection Agency (EPA) asked me to serve on its new multi-stakeholder workgroup to develop recommendations to improve the agency’s 1991 lead in drinking water rule. I had heard about problems with the rule but was unfamiliar with the details. My efforts to prevent lead poisoning over the past 20 years at the federal, state, and local levels focused on lead-based paint and consumer products. Lead pipes were new to me. Knowing the dangers of any lead exposure all too well, I was happy to help.
What I learned was disturbing. The rule’s shortcomings became clear when a utility representative presented a chart showing the lead levels from homeowner sampling over the years. While few in number, some lead levels in the water were literally off the scale, in the hundreds of parts per billion (ppb). And yet a utility operating a public water system would be in compliance with the rule as long as less than 90 in 100 samples were below 15 ppb. The only required action would be an alert by the utility to the homeowner. It became clear to me that lead could be found in water at extremely high levels, but these spikes—and potentially substantial public health risk—may not be investigated and corrected.
EPA’s own studies confirmed the problem. It turns out that the highest lead levels were often missed because the sampling method focused on the water in the interior plumbing and not the water sitting overnight in the lead service line – the pipe that connects the main in the street to the house. In addition, only 50 or 100 samples every three years were required; too few taken too infrequently to identify problems in a large city in a timely manner.
The primary source of lead is service lines made of lead pipe that connect to 6 to 10 million homes. Lead in brass fixtures and solder in interior plumbing present a risk, but it is much smaller when compared to pipes made of solid lead. The corrosion control treatment of water, required for most utilities in the mid-90s, reduces lead levels in drinking water by creating a protective coating inside the pipe. While the coating is effective, it is insufficient to prevent unpredictable releases of huge amounts of lead when lead pipe is disturbed or the water chemistry changes. At one of the EPA working group meetings I participated in, an agency staffer indicated that the vibration you feel in your home when a large truck drives down the street might be enough to dislodge some of the protective coating that corrosion control provides.
While there are doubts about the reliability of corrosion control, there is no doubt that lead is unsafe at any level. In the past 25 years, the evidence that lead, even at low levels, poses a significant risk to a child’s brain development has become only more compelling. Lead can harm brain development in young children resulting in learning and behavioral problems and reduced IQ for the rest of their lives.
With more than 500,000 children having elevated blood lead levels, as many as 10 million homes with lead service lines, and 24 million homes with lead-based paint hazards, our country has work to do. A priority needs to be children in poor households who are three times more likely to have elevated blood lead levels and African-American children who are twice as likely to show elevated blood levels as their white counterparts.
Eighteen months after that first meeting, the workgroup adopted a final report recommending that EPA overhaul the current rule to make lead service line replacement a top priority rather than a last resort and to better manage systems and pipes in the interim. The ultimate goal is to replace all lead service lines. A thoughtful dissent from a public interest advocate supported lead service line replacement but argued the recommendations did not do enough to protect people in the interim and ensure all lines are replaced.
After the report was released in August 2015, I first learned of the tragedy in Flint, Michigan. In November, after hearing from people in Flint, EPA’s National Drinking Water Advisory Council (NDWAC) told the agency that it should implement the report and laid out ten enhancements to address the lessons learned.
EDF is committed to working on solutions that accelerate lead pipe removal. These include:
1. Overhaul the Lead and Copper Rule
EPA needs to overhaul the rule based on NDWAC’s recommendations. To avoid delays from a change in administration, Congress should establish deadlines to ensure the agency finishes the job.
2. Cooperative Effort to Accelerate Lead Pipe Replacement
Communities need to begin now to replace lead service lines as part of an aggressive long-term program. This program must be a shared responsibility among the local utility, the public health community, residents who must cooperate since the lines are partially on their property, and the community’s elected leaders.
The federal government can play an important role in supporting this cooperative effort by:
Expanding the existing programs that are focused narrowly on lead-based paint to include lead in drinking water so that families can make informed decisions about both paint and pipes.
Requiring sellers to disclose to prospective homebuyers whether the home has a lead service line or not.
Providing low-income residents financial assistance to replace their portion of lead service lines.
Updating EPA and Department of Housing and Urban Development (HUD) lead-based paint standards to ensure they are based on the latest research and are consistent with the Centers for Disease Control and Prevention’s (CDC) guidance.
Restoring full funding to CDC’s and HUD’s lead and healthy homes program to support state childhood surveillance programs and lead hazard control for pipes and paint in low income housing.
Providing utilities access to a fully-funded loan program to replace lead service lines without undermining other critical water infrastructure projects.
We have come a long way in reducing lead exposure, but until we protect everyone the job won’t be finished. The problem is clear – these is no safe level of exposure to lead – and the solutions are apparent – the lead service lines must be replaced. There is no reason to let lead service lines remain a threat to our children. For more information go to www.edf.org/leadpipes.
http://blogs.edf.org/health/2016/03/16/lead-service-lines/
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In Flint and Beyond, Water Should Come Unleaded
Mar 17, 2016 | The Hill - Congress Blog
By Diane Regas
We’ve all watched the unfolding events in Flint, Michigan with growing dismay. A decision to cut corners, compounded by mismanagement and secrecy, resulted in nearly 8,000 children being exposed to lead. And many have asked whether this would have happened if the community had been wealthier and whiter.
The tragedy in Flint is, above all, an injustice. Our first priority must be helping those families at risk by removing the lead service lines to their home and providing the long-term resources needed to support the health and well-being of the children impacted by this damaging neurotoxin.
But Flint is also emblematic of two larger issues we must face as a nation. The truth is that Flint is both a question of environmental injustice and evidence of a truly national problem affecting kids everywhere. We cannot act as if Flint is an isolated case in either sense.
As a matter of social justice, there are poor communities across the country that receive far more than their fair share of pollution. And when it comes to lead, there are homes in towns across America that have lead in their drinking water.
The first thing to know about lead is that there is no safe level. Even in small amounts it is a dangerous neurotoxin, and exposure in childhood can lead to a lifetime of learning and behavioral problems and reduced IQ, and extremely low levels. In the United States, an estimated half a million children have elevated levels of lead in their blood. Poor kids are three times as likely to be affected, African-American kids have twice the risk.
The lead in their blood most often starts out in paint on walls, and in old lead pipes that deliver drinking water to their homes. Thirty-four million houses have the paint, between seven and ten million have lead pipes. In Flint, the lead from the pipes was dislodged by a change in the water supply, but it could also happen from a physical disturbance such as large truck passing your house and shaking the old pipes.
The good news is that we know government action can make a difference. Children’s blood lead levels are down dramatically from the 1990s due to a national strategy of removing lead from consumer products like gasoline, improving how we manage lead paint and pipes in place to prevent lead exposure, and identifying and supporting children who have elevated blood lead levels. The challenge before us with lead service lines is that the methods we’ve used to manage the risk—corrosion control—can fail—and unpredictably so. With seven to ten million homes across the country with lead service lines, this is a substantial risk. But it’s one that we can not only better manage but eliminate completely.
We must make lead pipe service line replacement a priority. Beginning but not ending in Flint. My organization, Environmental Defense Fund, is committed to making this happen for communities across the US. Achieving this will require commitments from a diversity of groups including the utilities, mayors, public health officials, EPA and Congress. We applaud the announcement made just last week by the American Water Works Association calling for the removal of all lead service lines. Congress needs to invest making this happen by supporting communities across the country, strengthening our lead hazard system, and ensuring that low-income communities get the support they need.
For its part, EPA must implement the recommendations of National Drinking Water Advisory Council, which requires utilities to develop long term solutions, promoting frequent testing, and alert residents to high lead levels. If EPA doesn’t act, Congress should establish mandatory deadlines. It will take time to get mandatory rules put into place and communities shouldn’t have to wait. So to accelerate our efforts to get lead service lines out of the ground, utilities, public health and environmental organizations, and political leaders can commit to developing and implementing plans for lead service line removal and—critically—expanded water testing. There are communities like Boston helping to lead the way.
The crisis in Flint has brought two questions into stark relief. First, faced with a problem like lead exposure to households everywhere, are we willing to make the investments necessary to live up to our rhetoric about the importance of protecting our kids? And, just as important, are we truly committed to giving all children – rich and poor, and from every background – an equal start in life? How all of us respond in the months ahead will give us the answers.
Regas is executive director at Environmental Defense Fund.
http://thehill.com/blogs/congress-blog/energy-environment/273254-in-flint-and-beyond-water-should-come-unleaded
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Obama Supreme Court Pick Garland Seen Backing Agency Deference
Mar 16, 2016 | InsideEPA
By Lee Logan
If appellate court judge Merrick Garland, President Obama's pick to replace the late Supreme Court Justice Antonin Scalia, is ever confirmed to the high court, he brings with him a record that favors deference to agency decisions, though he has also frequently been willing to back environmentalists' challenges to agency rules -- an approach that could bode well for EPA and environmentalists as the court prepares to weigh several major EPA climate and other regulations.
A 2010 analysis of Garland's rulings conducted by SCOTUSblog finds that Garland has “strong views favoring deference to agency decisionmakers,” citing a dozen “close” cases in the U.S. Court of Appeals for the District of Columbia Circuit in which he sided with the government.
But the analysis also finds an exception to this trend is his frequent willingness to accept environmentalists' challenges to agency decisions. “This is in fact the area in which Judge Garland has been most willing to disagree with agency action,” the analysis says.
In a move that could frustrate EPA, however, Garland authored a 2012 ruling -- National Association of Home Builders v. EPA, which upheld the Obama administration's lead paint remediation rules -- that held that an administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, and that there is no “heightened standard of judicial review when an agency reverses course.”
That ruling could make it easier for a Republican president to scrap or alter the agency's regulation limiting the power sector's greenhouse gas emissions.
Garland, currently chief judge on the D.C. Circuit, is expected to follow past practice from other Supreme Court nominees in no longer participating in active cases, though he is not currently considering any major environmental cases.
Even so, he has considerable experience with EPA rules and other regulatory issues. Among other things, he has voted to uphold the framework for EPA's air quality standards program and several individual air quality rules, as well as its power plant air toxics rule and several other regulations.
In the air toxics rule case, White Stallion Energy Center LLC v. EPA, Garland served on the three-judge panel that voted 2-1 to broadly uphold the rule, though the high court later remanded the measure after ruling that the agency unlawfully declined to address costs in its initial decision to regulate the sector.
Notably, during oral argument over the utility maximum achievable control technology (MACT) regulation, Garland suggested EPA should be granted deference in its decision not to consider costs in its initial regulatory determination -- and later joined an opinion granting such deference.
After the rule was remanded by the high court, Garland subsequently joined a unanimous order allowing the regulation to remain in place -- rather than vacate it -- as the agency addresses the cost analysis, providing a victory to the agency.
Garland's approach to deference suggests that had he been on the Supreme Court instead of Scalia during the utility MACT case, EPA would have scored a clear victory rather than the well-publicized court loss.
Such an outlook would also offer a significant boost to EPA in any upcoming high court review of the power sector GHG rule, given that the agency will be seeking court deference to its statutory interpretations for many portions of that regulation.
However, Garland has not served on D.C. Circuit panels that considered landmark challenges to EPA climate regulations, so his position on climate issues specifically is not well defined. In one of his few decisions on climate issues, he recently served on the three-judge panel in Carbon Sequestration Council (CSC), et al. v. EPA that upheld the agency's rule excluding carbon capture and sequestration (CCS) injections from hazardous waste rules, rejecting an industry challenge.
Uphill Odds
Garland -- who was confirmed to the D.C. Circuit in 1997 on a 76-23 vote -- faces uphill odds to be confirmed in the GOP-controlled Senate, where lawmakers have vowed not to confirm any Obama nominee, arguing the next president should make the selection.
Obama, however, is expected to bring considerable pressure on senators to hold hearings and ultimately a vote on Garland. During March 16 remarks announcing his pick, he said it would be “unprecedented” and an “abdication of the Senate's constitutional duty” if senators did not hold a “fair” hearing followed by an “up-or-down vote.”
Citing past praise for Garland from Sen. Orrin Hatch (R-UT) and Chief Justice John Roberts, Obama said he hopes senators spend their upcoming two-week recess reflecting “on the importance of this process to our democracy.
“When they return, I hope they'll act in a bipartisan fashion,” he said. “I hope they're fair. That's all.”
If Garland ever is confirmed to the court, he appears likely to bring a record with him that strongly favors EPA. According to a November 2015 analysis by EPA Deputy General Counsel Ethan Shenkman, Garland has been one of the most likely D.C. Circuit judges to hear a Clean Act Act case, having heard four such cases since 2011, even though panels are randomly assigned.
According to Shenkman, the court has generally taken an even-handed approach regardless of whether judges on a panel are Republican or Democratic appointees. He added that a recent study shows Democratic appointees tend to support EPA's position slightly more than their Republican-appointed colleagues, but the difference is small.
Given his history in environmental cases, Garland could also be expected to offer a far friendlier audience than Scalia -- a noted skeptic of EPA rules -- in a high court review of the power sector GHG rule, known as the existing source performance standards (ESPS).
But Richard Lazarus, a Harvard environmental law professor who is representing former agency administrators' amicus brief supporting the ESPS, told Mother Jones that Garland would not be an automatic vote in favor of strong environmental rules.
“No one would say Garland is a hardened environmentalist," he said. Still, “we think we'll get a straight shot from him. He doesn't come with any inherent skepticism about the federal government overreaching [on environmental regulation]. In terms of looking for someone who would give a fair hearing [to the ESPS], he's a big shift from Scalia.”
While the ESPS is the most high-profile EPA rule with a clear path to the high court, the justices in the coming years could be asked to weigh in on several other major agency regulations, including its Clean Water Act jurisdiction rule, updates to its cross-state air pollution rule and any implementation rules for a pending congressional overhaul to the Toxic Substances Control Act.
'Withhold Its Consent'
Republicans in their immediate reactions to the high court selection reiterated past remarks not to consider any Obama nominee. In a March 16 statement, Senate Majority Leader Mitch McConnell (R-KY) said it is the president's constitutional right to nominate a justice, and “it is the Senate's constitutional right to act as a check on a President and withhold its consent.”
As Senate Judiciary Chairman Charles Grassley (R-IA) and McConnell have previously said, they will allow “the American people [to] have a voice in this momentous decision” by not holding a vote until after the November election.
He added: “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next President nominates, whoever that might be.”
However, such statements do not necessarily foreclose on a vote to confirm Garland during a lame-duck session after the election. That could occur in a scenario in which Democrats hold onto the White House and potentially re-take control of the Senate, with Republicans potentially concluding that Garland is the most ideologically acceptable nominee given a potential different selection in 2017.
Administration supporters -- including environmental groups -- hope to pressure Republicans to reverse course and confirm Garland. A March 16 statement from the League of Conservation Voters urges GOP leaders to “stop obstructing and do their job. Polls show that the American people strongly believe the Senate must give the president's nominee both a fair hearing and a timely vote, and we urge them to do just that.”
Seven sitting Republican senators voted to confirm Garland to the D.C. Circuit in 1997: Sens. Dan Coats (IN), Thad Cochran (MS), Susan Collins (ME), Hatch, James Inhofe (OK), John McCain (AZ) and Pat Roberts (KS).
Given those votes, those senators could face particular pressure to break with their leadership on the nomination. However, Inhofe, chairman of the Senate environment committee, in a statement said that while he will “evaluate” Garland's nomination, “the next president should be the one to fill the vacancy on the Supreme Court.”
Arguing that Obama has tried to “ram through his liberal agenda by way of executive actions,” the fact that many suits over such moves are pending in the courts means that “we need to be cautious as to who will fill the vacancy.”
ESPS Litigation
Garland is not on the three-judge panel that will consider the ESPS in consolidated litigation known as West Virginia, et al. v. EPA, et al., though the litigation is expected to quickly come before the Supreme Court, potentially as soon as 2017.
The appellate court is poised to hear oral argument in West Virginia June 2 and could issue a ruling this fall. If the Supreme Court still has only eight members and decides to review the lower court ruling, that raises the possibility of a 4-4 split in which any D.C. Circuit ruling would be upheld.
That likely raises the stakes for the D.C. Circuit's ruling. But the Garland pick also avoids a scenario that could complicate the initial round of the litigation if Obama had picked another D.C. Circuit judge, Sri Srinivasan, who was rumored to also be under consideration.
Srinivasan, appointed by Obama to the appellate court in 2013, is a member of the three-judge ESPS panel and his nomination would have scrambled the dynamics of the suit -- which have already changed significantly following the high court's rare stay of the rule and Scalia's death.
If Srinivasan had been nominated and the confirmation occurred quickly, he could have been removed from the ESPS panel, throwing the panel's considered favorability to EPA in doubt. Additionally, he would have been expected to recuse himself from high court consideration of the case given that he participated in the lower court's hearing of the rule.
http://insideepa.com/daily-news/obama-supreme-court-pick-garland-seen-backing-agency-deference
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Barrasso Touts 'Better Way' on Methane
Mar 17, 2016 | E&E Daily
By Amanda Reilly
Sen. John Barrasso (R-Wyo.) yesterday took to the Senate floor to both slam the Obama administration's plan to regulate oil and gas methane emissions and to promote legislation that would expedite the permitting of natural gas lines on federal lands.
Last week, President Obama and Canadian Prime Minister Justin Trudeau announced that both nations would begin regulating emissions of methane, a potent greenhouse gas, from existing oil and gas operations. U.S. EPA is expected to kick off the regulatory process within the next few weeks (Greenwire, March 10).
Barrasso said that regulating the sector would be costly and that his bill would be a "better way" of addressing methane. The legislation would help reduce waste gas on federal lands by allowing producers to gather up more gas and send it to processing facilities, the senator said.
Barrasso introduced the bill, S. 411, with Sens. Heidi Heitkamp (D-N.D.), Mike Enzi (R-Wyo.) and John Hoeven (R-N.D.) on the same day that the Supreme Court froze the Clean Power Plan, the centerpiece of President Obama's climate agenda, until litigation over the controversial program for reducing carbon dioxide emissions from power plants is resolved.
In his floor speech, Barrasso blamed that action for the agreement between the United States and Canada to regulate methane emissions from the oil and gas sector.
"The president is bitter -- bitter that the Supreme Court is blocking his Clean Power Plan -- and he's pouting, and he's pandering," Barrasso said. "He's gone after coal, he's gone after oil, and now he's going after natural gas."
He credited the natural gas industry with driving down the nation's greenhouse gas emissions.
Barrasso's bill would eliminate environmental reviews for gas-gathering lines that are adjacent to already disturbed areas or existing rights of way. It would also require the Department of the Interior to issue permits for gas lines on federal lands within 90 days.
The Wyoming Republican also charged that Obama and Trudeau should have prioritized a host of other matters before methane emissions during last week's visit, which was the first by a Canadian prime minister to the White House in 19 years.
"President Obama decided that the most important thing our two countries could talk about was methane," Barrasso said. "Not Syria, not trying to stop radical Islamic terrorists, not dealing with ISIS? Not the hostile regimes like North Korea, or Iran, or Russia, no. Not what we can do to actually help our economies grow."
Republicans have roundly slammed the Obama administration's methane plans, while Democrats have said that the proposed action is long overdue (E&ENews PM, March 10).
http://www.eenews.net/eedaily/2016/03/17/stories/1060034164
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EOR Operators Raise Legal Concerns over ESPS' GHG Reporting Burdens
Mar 17, 2016 | InsideEPA
By Bridget DiCosmo
Enhanced oil recovery (EOR) operators are using legal filings to outline concerns over provisions in EPA's existing power plant greenhouse gas rule that they say will force EOR facilities using carbon dioxide captured from utilities to meet more onerous GHG reporting mandates than those for traditional EOR activities.
The concerns -- detailed in an opening brief and a separate non-binding statement of issues filed by EOR operators with the U.S. Court of Appeals for the District of Columbia Circuit -- highlight the uncertainty over how EPA will apply its GHG reporting mandates to joint EOR and carbon capture and sequestration (CCS) projects. A coalition of industry groups in the brief says the existing source performance standards (ESPS) rule triggers "far more burdensome" reporting.
EPA has taken steps to resolve some questions over GHG reporting mandates for EOR-CCS operations. For example, its approval in December of a GHG monitoring, reporting and verification plan for such a project was seen by some industry sources as offering long-sought clarity on the steps that EOR facilities that also conduct CCS must meet in lieu of strictly adhering to the stricter rules triggered by the ESPS.
The confusion stems from how the agency opted to apply its GHG reporting mandates in terms of compliance with the final ESPS for facilities that engage in injection of CO2, including EOR activities. Industry officials have warned the mandates impose massive, costly requirements that will ultimately impede EOR operations.
EOR operators have historically reported their GHGs under the less-onerous Clean Air Act "subpart UU" mandates in accordance with Class II wells under the Safe Drinking Water Act permitting program.
But industry argues the ESPS rule effectively requires EOR operators using CO2 from utilities to comply with the requirements under "subpart RR," which mandates more-comprehensive monitoring plans that are subject to EPA approval, oversight and potential revisions.
A coalition of states and energy industry groups that includes EOR operators outlines the concerns in a Feb. 19 opening brief filed in the D.C. Circuit suit West Virginia, et al. v. EPA, et al., which consolidates challenges to the ESPS.
CO2 Storage
The power plant GHG rule "limits the storage of CO2 from affected units to operations that report under the far more burdensome requirements of Subpart RR," says the brief. "It thus functionally prohibits facilities from using CO2 in enhanced oil recovery.”
Among the groups that signed on to the brief are states including Alabama, Kentucky, Louisiana, power companies including Georgia Power Company, Buckeye Power, American Public Power Association, coal mining firm Murray Energy Corporation, and others.
The petitioners' brief outlines two legal concerns with regard to the subpart RR provision. First, the petitioners charge that because the requirement was not floated in the proposed rule, its inclusion in the final ESPS is unlawful. "In fact, EPA maintained that it was not considering carbon sequestration as a best system of emission reduction (BSER) component," and therefore the final rule violates the Administration Procedure Act (APA), the brief claims.
The petitioners also argue that the provision conflicts with state mineral property laws and private mineral leases, making compliance with the subpart RR requirements impracticable for many operations that co-mingle CO2 from affected units and other sources.
"And the Rule conflicts with prior EPA statements advocating enhanced oil recovery for carbon sequestration," and undermines the government- and ratepayer-funded plan to use EOR at a planned integrated gasification combined cycle power plant in Kemper County, MS, the brief says, arguing that the court should vacate the provision.
'Long-Term Containment'
In a separate Feb. 22 non-binding statement of issues filed by EOR operator Denbury Onshore, the company asks the court to consider the question of whether requiring EOR operators to comply with the subpart RR requirements -- which they argue were intended for "long term containment of CO2" -- is arbitrary and capricious given that EOR activities are excluded from the sources listed in subpart RR.
The company also asks the court to review whether EPA was required under the APA to consider the risk that complying with subpart RR would effectively eliminate offsite EOR as a practically viable mans of capturing CO2.
It also questions whether the additional costs associated with subpart RR conflicts with the agency's stated goal of encouraging the use of captured CO2 in EOR to lower the net cost of implementing CCS.
The filing also asks the court to review whether the rule is unlawful because EPA "failed to offer a reasoned basis to depart from the existing regulatory framework in which EOR operations qualify as Class II wells regulated under subpart UU" and whether the rule unreasonably intrudes on state mineral property laws and leases.
http://insideepa.com/daily-news/eor-operators-raise-legal-concerns-over-esps-ghg-reporting-burdens
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Prospects For a Trump-Clinton Race Confound Oil Backers
Mar 17, 2016 | PoliticoPro
By Elana Schor
The oil industry's top lobbyist doesn't know who he will vote for in November.
Jack Gerard, like many of his colleagues, is facing a difficult but increasingly likely choice in the general election. Hillary Clinton has promised to crack down on oil and gas companies as she defends her left flank in the Democratic primary, but that is not yet enough for Gerard to throw his support behind Republican front-runner Donald Trump, the brash, erratic businessman who slams oil as just another "special interest."
In an interview with POLITICO earlier this month, the American Petroleum Institute chief declined to pick a favorite and avoided criticizing either front-runner before candidates hone their messages for the general election.
"It's probably premature for me to judge," said Gerard, who has donated more than $75,000 over the last decade to political candidates — nearly all of which went to Republicans.
API's political action committee has given about 80 percent of its donations to GOP candidates over the last two election cycles. And In 2012, Gerard was mentioned as a possible chief of staff or Energy secretary if Republican standard bearer Mitt Romney had won the White House.
"The question on Mr. Trump’s side is, 'How do you feel about energy generally?' He hasn't talked about it a lot," Gerard noted.
Another oil industry source, who requested anonymity to avoid offending the potential next president, was blunter about the prospects of a Trump-Clinton match-up.
"Is there a Door Number Three?" he asked by email.
Trump has largely avoided outlining detailed policy proposals and frames his pitch based mostly on emotional appeals. He promises to approve the Keystone XL pipeline from Canada only if the public gets a cut of its output. He assures sportsmen that he will protect the federal lands where they hunt and fish, which could require blocking energy development there. And he tells corn growers he will promote ethanol, which oil refiners say drive up their costs. None of those positions sit well with oil lobbyists — "I don't think he cares" about the details of the ethanol fight, one says.
Specifics (or lack thereof) aside, Trump's unpredictability is an overarching concern for an industry where regulatory certainty is a top priority. He has dismissed the idea that climate change is a problem the government should worry about, but that does little to reassure the industry that he would have its back.
“Would he take a carbon tax as part of a tax reform deal? Of course, because he cares about tax reform," Republican energy lobbyist Mike McKenna said in an interview. "You start asking yourself policy questions, ‘would he do X,’ the answer is usually yes."
Still, oil advocates are not yet welcoming a better-known Clinton, who has lurched left as she works to fend off Bernie Sanders and assuage suspicious activists.
Clinton's recent calls to ban offshore drilling outside the Gulf of Mexico and regulate drilling so strictly that there will not "be many places in America where fracking will continue" worry industry backers. Those statements stand in stark contrast to her State Department tenure that included advocacy for overseas fracking and an early inclination to approve Keystone followed by years of silence on the issue.
"Every Republican, when it comes to American resources, is going to be better for our economy" than a potential Democratic president said Sen. John Barrasso (R-Wyo.), a close ally of his state's fossil-fuel producers. Clinton or Sanders would preside over significant job losses in drilling and mining, Barrasso added, and "we just can't allow that to happen."
API's Gerard questioned whether Clinton would moderate her views if she secures the Democratic nomination or if she would continue to repeat the "Bernie mantra" on locking up fossil-fuel development.
"Does she move to the center?" the undecided oil advocate asked. "That's where you win the election."
Industry-linked donors and oil patch voters have shown a clear preference for Texas Sen. Ted Cruz, who has received more than $800,000 in direct donations from oil and gas, according to the nonpartisan Center for Responsive Politics. Clinton is next among still-active presidential candidates, taking in about $250,000 directly from donors linked to the oil industry, followed by Republican Ohio Gov. John Kasich, who has received about $100,000.
Trump's total contributions of about $9,000 rank behind Democratic candidate Bernie Sanders' $15,000-plus from oil or gas-linked donors, according to the Center.
Three fossil-fuel titans who supported other Republican candidates — Bush backer T. Boone Pickens, Scott Walker booster Dan Eberhart, and Cruz fan Toby Neugebauer — told POLITICO this month that they would support Trump in a matchup against Clinton, but it remains unclear whether any would back up their preference with donations.
Six of the top 10 oil producing states have voted so far, and Cruz has won five of them: Texas, Alaska, Oklahoma, Kansas and Wyoming. In Louisiana, he and Trump secured an equal number of delegates.
But Cruz's path to the nomination is a narrow one that would require him to far outperform his polling in the remaining states, and it is mathematically impossible for Kasich, who has won only his home state of Ohio, to secure enough delegates, leaving a contested convention as his only opportunity.
Trump has used the oil industry as a cudgel to attack both candidates. In multiple debates he derided Kasich's economic record as a lucky result of the fact that his state "struck oil." And he attacked Cruz as an enemy to Iowa's corn growers because of his opposition to the Renewable Fuel Standard, which requires refiners to blend corn ethanol and other biofuels into the gasoline supply.
"I'm not really blaming him because he's financed by oil people. The oil people don't want ethanol," Trump said as Iowans caucused, although the attacks were not enough to keep Cruz from winning the first contest.
Trump didn't let up after Cruz took Iowa, slamming the senator later in February for "getting tremendous money from oil" and being "totally controlled by the oil companies."
At the same February rally, Trump built on an earlier promise to take a portion of the profits from the oil flowing through Keystone XL, saying he would ensure that "we get a chunk of it."
While courts would likely invalidate any attempt to cut a profit-sharing deal for Keystone, Trump has given few clues beyond such eyebrow-raising rhetoric as to what his energy plan would look like. He also has said repeatedly that he would bomb and seize oil assets controlled by ISIL to benefit the U.S.
Trump has also broken with the industry on larger questions of environmental policy. He told Field & Stream magazine in January that "I don't like the idea" of returning federal land to the states, a contravention of conservative energy doctrine grave enough to prompt a rebuke from the American Legislative Exchange Council, which is supported by oil and gas companies among other business interests.
Trump's campaign did not return a request for comment on his previous remarks on oil and gas-related issues. Nor did Clinton's campaign return a request for comment about the industry's reticence regarding a general election contest with Trump.
Facing uncertainty over whether Clinton would return to her reputation for pragmatism or carry over the legacy of an Obama administration that has slapped a long series of regulations on oil and gas, some fossil-fuel players appear ready to hope that Trump gets an education in their priorities.
Louisiana Republican Sen. Bill Cassidy predicted that Trump's base, dominated by "disaffected, underemployed, blue-collar" voters disillusioned with Obama, would push him in the right direction on policies that benefit oil and gas.
"Reality is going to educate him," Cassidy said in a brief interview. "It educated Barack Obama, who came in opposing fracking — now, he's for fracking."
Nick Juliano contributed to this report.
https://www.politicopro.com/energy/story/2016/03/prospects-for-a-trump-clinton-race-confound-oil-lobbyists-101639
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Twelve House Republicans Form ‘Free-Market' Energy Group
Mar 17, 2016 | BNA Daily Environment Report
By Anthony Adragna
Twelve House Republicans have formed a new working group designed to boost new clean energy technologies while also ensuring environmental protection.
The formation of the House Republican Energy, Innovation and Environmental Working Group comes on the heels of the launch of a similar Senate working group in fall 2015 and is the latest evidence of diversity within the Republican caucus on clean energy and climate change issues.
Founding members of the group are Republican Reps. Bob Dold (Ill.), Barbara Comstock (Va.), Ryan Costello (Pa.), Carlos Curbelo (Fla.), Chris Gibson (N.Y.), Richard Hanna (N.Y.), Joe Heck (Nev.), Adam Kinzinger (Ill.), Elise Stefanik (N.Y.), Tom Reed (N.Y.), Dave Reichert (Wash.) and Kevin Yoder (Kan.).
“We must seek ways to bring certainty, jobs, and security to our energy sector while being responsible stewards of our environment,” Gibson said in a statement released through Citizens for Responsible Energy Solutions. “I look forward to being a part of the Energy, Innovation, and Environment Working Group's efforts to achieve these conservative goals.”
Many of the group's members are also supporters of a House resolution (H. Res. 424), introduced by Gibson in September 2015, calling for “economically viable, and broadly supported private and public solutions to study and address” climate change. (181 DEN A-7, 9/18/15).
That announcement was then followed by the October announcement from four Senate Republican moderates—Sens. Lamar Alexander (Tenn.), Kelly Ayotte (N.H.), Mark Kirk (Ill.) and Lindsey Graham (S.C.)—of an informal working group (210 DEN A-8, 10/30/15).
A Senate Republican aide told Bloomberg BNA the senators have since met and plan to continue to meet throughout the year.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=84832382&vname=dennotallissues&fn=84832382&jd=84832382
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Our Critical Infrastructure is Too Vulnerable to Cyberattacks
Mar 16, 2016 | The Hill - Congress Blog
By Scott DePasquale
Last week, Sen. Charles Schumer (D-N.Y.) confirmed that, two years ago, the Bowman Avenue Dam in Rye Brook, New York was accessed remotely by Iranian hackers – a move characterized as “shot across our bow” and a clear indication of the tremendous risk that cyber attackers pose.
While an attack on a dam in Westchester is frightening, it is only symptomatic of the weaknesses in our critical infrastructure. A recent U.S.-led report produced by the Industrial Control Systems Cyber Emergency Response Team (ICS-CERT) found that a “synchronized and coordinated” cyberattack shut down a large section of the Ukrainian power grid in December 2015, a situation which, if replicated in the U.S., could cost anywhere between $243 billion and $1 trillion dollars.
The threat of a cyberattack on our critical infrastructure is very real and could have devastating effects on our communities, economy, and health and safety. The solutions put forth to address these risks must, therefore, be as realistic as the problems they are meant to solve. In suggesting solutions that only focus on separating utilities from bad actors, such as the call to isolate systems used to run critical infrastructure from the internet and limit the ability for remote access, the ICS-CERT report misses a simple truth; it is no longer an option to disconnect. These “airgaps”, as the industry has coined the phrase, are a fallacy in the 21stcentury.
If we stand any hope of tackling issues such as grid reliability and climate change, we need infrastructure that is smart and connected. This need for connectivity and greater insight into power usage is why the U.S. Government has granted utilities millions to install smart meters, and why companies like Utilidata are working to build an ever more advanced electrical infrastructure, capable of handing the addition of solar, wind, storage, and every energy innovation that the 21st Century promises.
Luckily there is an alternative – a course correction rather than backtracking on progress. There are a few simple steps that can keep a connected grid safe.
First, within the utility industry, physical security and cyber security teams should be integrated and aligned. In most major utilities, operations technology – the actual electrical equipment – is overseen by different teams than the information technology that plays an ever-growing role in the modern utility. In a world where cyber attackers, like those in the Ukraine, are using information technology to attack operations technology, the current practices put the grid and consumers at risk and affects the ways that utilities can anticipate, manage, and respond to cyber threats.
Second, the systems of government that regulate utilities must support cybersecurity investment. State public utility commissions were conceived to ensure consumers were guaranteed a level of service from their utilities. In the post-Ukraine attack era, the time has come to accept that coherent measures to respond to cyber threats are no longer a luxury, but instead a necessary part of the service that utilities provide. State utility commissions must start to incentivize security, through measures such as offering cost-recovery for cyber investments. Doing so will not only increase safety, but also speed investment, incentivizing further innovation.
The Bowman Avenue Dam hack is only one example of myriad of cyber threats faced by our critical infrastructure. We must embrace innovation and tackle cyber threats head-on with safer, more connected infrastructure, less we put but our infrastructure and the economy deeply in harm’s way.
DePasquale is chairman of the Rhode Island Cybersecurity Commission and CEO of Utilidata, a global software company working with utilities to redefine energy efficiency, reliability and grid security.
http://thehill.com/blogs/congress-blog/homeland-security/273068-our-critical-infrastructure-is-too-vulnerable-to
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EPA-OSHA Prosecution Effort is Yielding Results
Mar 17, 2016 | BNA Daily Environment Report
By Stephen Lee
The Justice Department's tough new approach for cracking down on worker safety and environmental crimes is already helping uncover industries and activities that should be prosecuted, a Justice Department official said March 15.
The joining of the Environmental Protection Agency and Occupational Safety and Health Administration for criminal prosecutions, announced in December 2015, is based on the notion that “companies that are not doing a good job protecting their workers probably are not doing a good job protecting the environment, and vice versa,” said John Cruden, assistant attorney general for Justice's Environment and Natural Resources Division.
Though the project is still only “in the opening moments,” Justice has already seen results, said Cruden, speaking at a gathering of environmental health and safety professionals at the National Press Club.
Results Already Coming In
One case aided by the new Worker Endangerment Initiative stems from a series of explosions on an oil production platform in 2012. Three workers died, several others suffered serious burns and 500 barrels of burning oil were spilled into the Gulf of Mexico (U.S. v. Black Elk Energy Offshore Operation, LLC, E.D. La., No. 2:15-CR-00197, 1/14/16).
Although the charges in the case are for manslaughter and violations of the Outer Continental Shelf Lands and Clean Water Acts, Justice's allegations focus on the supervisors' failure to exercise due care and ensure that the work was performed safely, Cruden said.
The case is scheduled to go to a jury trial in January 2017.
In another recent case, five individuals were prosecuted for conspiring to violate the Clean Air Act work practice standards for asbestos removal, with prison terms ranging from six to 37 months. During sentencing, Justice presented testimony about how the exposure of workers to asbestos was likely to result in death or serious injury, Cruden said (U.S. v. Sawyer, E.D. Tenn., No. 2:11-CR-82, 4/18/13).
Inspectors Being Cross-Trained
Each referral sent to Justice by the EPA is now being scrutinized for OSHA violations, because worker safety violations “have historically been under-enforced,” Cruden said.
One reason for the under-enforcement is that, for criminal prosecutions, “OSHA's not that good of a law,” said Cruden.
By bringing the EPA and OSHA together, Justice is also speeding up case development, Cruden said.
Both agency's inspectors are being cross-trained so they understand each other's authorities, Cruden said. However, so far only two of EPA's roughly 180 criminal investigators have received the OSHA training.
Neither EPA nor OSHA inspectors will be authorized to write up citations in each other's area of jurisdiction. Instead, their role will simply be to “raise their hand” when they spot what they believe to be a violation.
“If [an OSHA inspector] is out there and you see something that looks like an unpermitted discharge under the EPA, you have no jurisdiction yourself,” Cruden explained. “You're going to report that yourself, or you're going to report that to EPA.”
Shift Makes ‘Good Common Sense.'
The new approach represents an effort by Justice to mirror the way in which companies themselves are structured, Cruden said.
“This realignment of responsibilities makes good common sense,” he said. “Just as every major corporation has a vice president or significant corporate official charged with responsibilities for environment, health and safety, the Department of Justice is now organized for the first time in a similar fashion.”
Cruden also said his appearance with OSHA chief David Michaels at a March 2010 House hearing helped cement Justice's relationship with OSHA.
“It really brought us together with the Department of Labor, particularly OSHA,” Cruden said. “We started talking more, we started doing more things, we started to see where there could be a synergy of effort if we actually put our resources together.”
No Sinister Interpretation
At the hearing, Cruden called for felony provisions to be added to the OSH Act.
In January, Associate Deputy Attorney General Andrew Goldsmith told Bloomberg BNA that, despite speculation from former Justice staffers, the department won't use worker safety violations only to make technical environmental criminal cases more emotionally powerful to juries (16 DEN A-5, 1/26/16).
“There's a potentially sinister interpretation of that, to suggest we're trying to put the old widow in front of the jury to gin up inappropriate prejudice,” Goldsmith said. “I know that's not the case. The guiding principle is, we're going to go where the facts take us. We're not going to have some preordained story and then shoehorn the facts into that story.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=84832388&vname=dennotallissues&fn=84832388&jd=84832388
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Pipeline Safety Bill Approved by House Subcommittee
Mar 17, 2016 | BNA Daily Environment Report
By Ari Natter
A House subcommittee has approved pipeline safety legislation after removing a provision that would allow citizens to sue the Pipeline and Hazardous Materials Safety Administration for failing to write rules.
Pipeline operators such as Kinder Morgan, Inc., Enbridge Energy Co. Inc., and Williams Companies had opposed the citizen suits provision. The House Energy and Commerce Subcommittee on Energy and Power eliminated it from a new draft version of the Pipeline Safety Act of 2016, which would reauthorize PHMSA, approved it on a voice vote March 16.
The legislation also adds a new section that gives the agency authority to issue rules in emergency situations, though it gives pipeline operators the ability to request a review of the action, which must be completed in 30 days.
Several lawmakers, such as Rep. Joe Barton (R-Texas), said they took issue with that provision. They agreed to hold related amendments until the full committee markup, possibly next week.
Emergency Authority an Issue
“I don't plan to put into statute an ambiguous open-ended emergency provision that is currently in the draft,” Barton said prior to the vote.
The underlying legislation would reauthorize through 2019 the agency's pipeline safety program, which expired in September. The agency, created in 2004, is responsible for regulating 2.6 million miles of pipeline in the U.S., as well as the transportation of hazardous materials.
Similar to the Senate's version (S. 2276) of the bill, the House version would require the agency to address 16 outstanding mandates required by a 2011 law before initiating most other new rulemakings. Among unfulfilled rulemakings required by the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 are regulations related to leak detection and emergency shutoff valves, integrity management for natural gas pipelines, public education and awareness efforts, and accident and incident notification (43 DEN A-14, 3/4/16).
Both the House and Senate version of the bills would establish federal standards for underground natural gas storage facilities like the one owned by Sempra Energy subsidiary Southern California Gas Co. that leaked methane in California's Aliso Canyon.
Rep. Frank Pallone (D-N.J.) said the bill needed strengthening and took issue with new language in it that he said placed “additional, stringent restrictions” on the use of the agency's technical assistant grant programs, including a requirement that the Government Accountability Office audit the program
Bill Called ‘Lacking.'
Democrats offered, but withdrew, a number of amendments to allow for further discussion before the full committee markup.
Among them were measures by Rep. Lois Capps (R-Calif.), whose district was affected earlier this year by both a 100,000-gallon crude oil leak from a corroded pipeline owned by Plains All American Pipeline and the Alisa Canyon methane leak that federal and university researchers said was the largest in U.S. history. Among the amendments she offered was a measure requiring the installation of automatic shutoff valves in pipelines in federally designated “High Consequence Areas,” such as coastal recreation waters and nearby land.
“This bill before us is severely lacking, leaving far too many communities at risk,” Capps said during the markup. “We have an opportunity in front of us.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=84832371&vname=dennotallissues&fn=84832371&jd=84832371
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Supreme Court Asked to Review Mercury Rule Remand Order
Mar 17, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of 20 states wants the U.S. Supreme Court to review a lower court's decision to leave the Mercury and Air Toxics Standards in place while the Environmental Protection Agency addresses a legal flaw in its rulemaking process (Michigan v. EPA, U.S., No. 15-1152, 3/14/16).
The state coalition, led by Michigan Attorney General Bill Schuette (R),petitioned the Supreme Court to consider whether a reviewing court can leave an unlawful rule in place if a regulatory agency promulgated that regulation without any statutory authority.
While the agency is expected to issue a rule by mid-April to fix the legal flaw in the MATS Rule, the states said the issue should be reviewed by the Supreme Court, because it is of “exceptional importance” given the exclusive jurisdiction of the U.S. Court of Appeals for the District of Columbia Circuit over many agency regulations.
The petition represents the latest effort by states to overturn the 2012 MATS rule, which the agency estimated to cost the power sector $9.6 billion per year. The request comes less than two weeks after Chief Justice John Roberts Jr. rejected a stay application filed by the same states, which had sought to block implementation and enforcement of the mercury standards (43 DEN A-2, 3/4/16).
EPA Working on Supplemental Rule
The EPA is working on a supplemental rulemaking to address the Supreme Court's 2015 holding that the agency erred when it determined it was “appropriate and necessary” to regulate power plant emissions under Section 112 without considering cost.
The states are seeking vacatur of the MATS rule, which they said was issued outside of the EPA's statutory authority, because the agency has not completed a valid “appropriate and necessary” determination, as Congress required it to do before actually regulating (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015); 125 DEN A-1, 6/30/15).
States Cite Circuit Split
The petition, filed March 14 and obtained by Bloomberg BNA March 16, specifically challenges a December decision by the D.C. Circuit to leave the MATS rule (RIN 2060–AP52, RIN 2060-AR31) in place while the EPA addresses the Michigan v. EPA ruling (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, 12/15/15).
The D.C. Circuit in 1993 established a two-factor test for deciding whether to vacate an agency regulation or action on remand. Under that two-part test, the court considers the seriousness of the legal flaw in the decision and the disruptive consequences of vacating a decision only to have it later be reissued (Allied-Signal Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 300 U.S. App. D.C. 198 (D.C. Cir. 1993)).
However, the states said the D.C. Circuit's decision to remand MATS back to the EPA without vacatur conflicts with a similar decision made by the Fifth and Eight Circuits, establishing a circuit split that the Supreme Court should address.
Conflicts With Another Ruling
The states also argued that the D.C. Circuit's decision to remand without vacatur conflicts with the 2015 Michigan v. EPA ruling.
“Agency action, taken without authority, cannot be left in place to have the effect of binding law,” the states said. “But here, EPA refused to retract and the D.C. Circuit refused to vacate EPA's regulation, even after this Court held that EPA had overstepped its authority.”
The states acknowledged that the EPA will likely argue that the legal question will become moot if the agency issues a rule that reaffirms its “appropriate and necessary finding.” However, the states argued that the issue won't be moot, because the situation is likely to occur again but evades judicial review.
“In light of EPA's position in this case—that its lack of authority to regulate poses no obstacle to its continued imposition of regulations—this type of unlawful agency action is capable of repetition,” the states argued.
The EPA's press office didn't immediately respond to a request for comment on the states' petition. The federal government's response to the Supreme Court is due April 15, according to the court's website.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=84832387&vname=dennotallissues&fn=84832387&jd=84832387
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House Watchdog Presses White House on Subpoenaed Documents
Mar 17, 2016 | E&E News PM
By Hannah Hess
House Oversight and Government Reform Committee Republicans today asked President Obama's regulatory chief for more details about a subpoena related to the panel's ongoing investigation of U.S. EPA's controversial water rule.
In a letter to the White House Office of Information and Regulatory Affairs Administrator Howard Shelanski, lawmakers expressed frustration that the administration had not been more forthcoming with documents or interviews on the Clean Water Act jurisdiction rulemaking.
Lawmakers say their months-old request covered a "discrete set of documents," yet OIRA, the small bureau within the Office of Management and Budget in charge of reviewing federal regulations, had limited its search to the communications of four officials over a six-month period. The committee has identified three officials who worked on the rule that OIRA excluded from its search.
"We want to know the scope and really what we should be looking for -- help us define it," Rep. Mark Meadows (R-N.C.), Government Operations Subcommittee chairman, told E&ENews PM, explaining the letter. "Then we can make a more informed decision in terms of the amount of time [the administration needs] to comply with the subpoena and the request."
The letter follows an explosive hearing in which Chairman Jason Chaffetz (R-Utah) threatened to hold Shelanski in contempt (E&E Daily, March 16). It also warns Shelanski that he may face civil or criminal enforcement mechanisms if he does not agree to a transcribed interview with committee staff.
"To date, you have neither produced all documents responsive to the subpoena, nor invoked a valid legal privilege to justify withholding them," the letter states.
Although the investigation is focused on the Clean Water Rule, Meadows signaled the committee's interest could have broader implications.
"It really has to do with the way that they conduct their oversight on an ongoing basis," he said. "The genesis of it was as it related to the [rule], because it prompted some questions."
Meadows added: "However, while we focus on their compliance there, the other issue is with all of their oversight of rulemaking. How does it happen? How can we best play our oversight role in that?"
http://www.eenews.net/eenewspm/2016/03/16/stories/1060034143
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DOJ Urges Ohio District Court to Dismiss CWA Rule Suit
Mar 17, 2016 | InsideEPA
Department of Justice (DOJ) attorneys are urging a federal district court in Ohio to dismiss a lawsuit filed by several states over EPA and the Army Corps of Engineers' joint Clean Water Act (CWA) jurisdiction rule, saying the court lacks power to hear the case following an appellate court's recent ruling saying it will hear suits over the rule.
As a result of the U.S. Court of Appeals for the 6th Circuit's ruling “that it has exclusive jurisdiction to review challenges to the Rule, this Court lacks jurisdiction over this case,” DOJ attorneys say in a motion to dismissfiled in the U.S. District Court for the Southern District of Ohio Eastern Division on March 14.
The motion says that because the 6th Circuit in its divided Feb. 22 ruling confirmed its jurisdiction to review initial challenges to the CWA rule, the states that filed the district court case are now barred under the Administrative Procedure Act from pursuing a duplicative challenge to the rule in the lower court.
The 6th Circuit panel's divided ruling on its power to hear suits over the CWA regulation has spurred considerable uncertainty over which courts ultimately will hear the suits. EPA is starting to ask for district courts to dismiss the myriad suits over the rule in deference to the 6th Circuit challenge, while opponents of the CWA rule are pushing for en banc rehearing of the appellate decision by the full court.
The states challenging in the Ohio district court suit -- Ohio, Michigan, and Tennessee -- in a March 4 noticewith the lower court acknowledged the likelihood that the suit would get dismissed, saying, “The States therefore recognize that this Court may conclude that it lacks jurisdiction here in light of the Sixth Circuit ruling, and may therefore dismiss this action (without prejudice and on jurisdictional grounds only).”
But the states preserved the potential for an appeal of any dismissal, saying in the notice that they “respectfully object to any such dismissal even while understanding that this Court must act in accordance with its view of the law as guided by controlling Sixth Circuit precedent.”
Meanwhile, the 6th Circuit in a March 16 order set a March 23 deadline for any additional petitions for rehearing en banc. The order notes that three such petitions have already been filed and that “due to the nationwide importance of the matter,” the court is shortening the 45-day legal time frame for petitions to be filed. The order also sets an April 1 deadline for DOJ to respond to the petitions.
http://insideepa.com/news-briefs/doj-urges-ohio-district-court-dismiss-cwa-rule-suit
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