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ACC AM 4/20
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Silica Rule Based on 'Series of Fantasies' -- Industry
Apr 20, 2016 | E&E Daily
By Pamela King
As industry groups take legal action to block the Labor Department's final silica standard, business interests yesterday critiqued the rule's cost and feasibility. -
(ACC Mentioned) Phthalates Under Fire as EU Takes Regulatory Steps
Apr 20, 2016 | BNA Daily Environment Report
By Stephen Gardner
The European Chemicals Agency (ECHA) will in mid-June open a consultation on a wide-ranging REACH restriction on four phthalates that in effect would ban the substances from all consumer products imported into the European Union. -
(ACC Mentioned) Finally, a Silica Rule: A Story of Industry Interference and Regulatory Delay
Apr 19, 2016 | The Union of Concerned Scientists
By Gretchen Goldman
“The science is clear,” Representative Frederica Wilson asserted in a Congressional hearing on silica earlier today. Last month, the Department of Labor issued the long-awaited silica rule to protect workers from health effects of crystalline silica dust exposure. -
(ACC Mentioned) Fast Food Serves Up Phthalates, Too, Study Suggests
Apr 19, 2016 | CNN
By Carina Storrs
A new study finds that those fast food drive-thru hamburgers and take-out pizzas could increase your exposure to hormone-disrupting chemicals called phthalates. -
TSCA Talks Continue Despite Inhofe's ‘Hours Away' Claims
Apr 20, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Lawmakers pushed back on Sen. James Inhofe's (R-Okla.) assertion April 19 that negotiators were “hours away” from an agreement to advance legislation to amend the nation's primary chemicals law. -
TSCA Negotiators Still Seeking Deal on Preemption Issues
Apr 19, 2016 | Politico Pro
By Darren Goode and Alex Guillen
Lawmakers seeking a bicameral breakthrough on the stalled update to the 40-year old Toxic Substances Control Act are still haggling over whether a new law will preempt state law, one of several remaining obstacles to announcing a deal this week, sources closely following the talks said Tuesday. -
Sen. Booker Says 'Fragile' TSCA Reform Talks Continue With EPA's Input
Apr 19, 2016 | InsideEPA
By David LaRoss
Sen. Cory Booker (D-NJ) says that “ongoing and fragile negotiations” continue between House and Senate lawmakers on trying to craft a final compromise Toxic Substances Control Act (TSCA) reform bill that could advance in both chambers, adding that EPA has been offering its support in the long-running bid for a deal. -
NAS Panel Weighs BioTech Task Amid TSCA Reform, Other Changes
Apr 19, 2016 | InsideEPA
By Maria Hegstad
Members of a new National Academy of Sciences (NAS) committee tasked with helping EPA and other agencies update their joint framework for regulating biotechnology products are wrestling with how to shape their recommendations in light of potential changes to the Toxic Substances Control Act (TSCA) and other actions that could limit the usefulness of their findings. -
Osha's New Silica Rule Faces Legal Challenges
Apr 19, 2016 | Chemical Watch
By Sylvia Palmer
Several trade groups and worker unions have filed petitions, requesting review of the US Occupational Safety and Health Administration’s (Osha) recently amended rule for occupational exposure to respirable crystalline silica. -
(ACC Mentioned) Support Briefs Filed in EPA Waste Rules Legal Fight
Apr 20, 2016 | BNA Daily Environment Report
By Anthony Adragna
EnvironmentalLink and industry groups urged a federal appeals court not to accept arguments from the other side seeking to invalidate aspects of two Environmental Protection Agency regulations governing reuse of spent secondary materials (Am. Petroleum Inst. v. EPA, D.C. Cir. , No. 09-1038, briefs filed4/18/16). -
Murkowski Aims for Bill Signing Before August Break
Apr 20, 2016 | E&E Daily
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said yesterday she was aiming for a quick conference with the House to produce a final energy bill that President Obama could sign before the August congressional recess. -
US Shale Production Will Shape the Future of Global Commodity Markets
Apr 19, 2016 | Platts
By Luciano Battistini
During my time at Platts, I've seen the US shale revolution gain ground and then dominate much of the conversation around energy in America -
US Oil Drillers Seek Limits on Crude Imports
Apr 19, 2016 | AP (In Fuel Fix)
Oil drilling companies and royalty owners from the Texas Panhandle to New Mexico’s stretch of the Permian Basin are embarking on a grass-roots campaign to limit foreign oil imports, salvaging what they say is a major sector of the U.S. economy. -
Greens Urge Judges to Reject Md. Export Project
Apr 19, 2016 | E&E News PM
By Robin Bravender
Environmentalists pressed federal judges today to reject Dominion Resources Inc.'s plans to export liquefied natural gas from a Chesapeake Bay facility. -
House, Senate Split on Energy and Water Bill Riders
Apr 20, 2016 | E&E Daily
By Christa Marshall, Tiffany Stecker and George Cahlink
The House Appropriations Committee approved an energy and water spending bill yesterday by voice vote after a meeting that erupted into a tense debate about the Flint, Mich., water crisis. -
Committee Approves $37.4 Billion Energy, Water Bill
Apr 20, 2016 | BNA Daily Environment Report
By Ari Natter
The House Appropriations Committee voted today to approve a $37.4 billion energy and water appropriations bill that would block the Clean Water Rule, among other policy riders. -
Amid Lofty Campaign Rhetoric, Senate Moves on Modest Energy Bill
Apr 20, 2016 | Politico Pro
By Nick Juliano, Andrew Restuccia, and Elana Schor
The difference between campaigning and governing was on stark display this week, as the Senate prepared to give bipartisan support to a modest energy bill that falls well short of the lofty proposals candidates are touting on the presidential campaign trail. -
Senate Revives Its Energy Reform Bill
Apr 19, 2016 | The Hill - E2 Wire
By Devin Henry
The Senate resumed debating its energy reform package on Tuesday afternoon after it stalled months ago amid a debate over aid for Flint, Mich., a city that has been suffering from lead contamination in its drinking water. -
In Reply To EPA, Opponents Say Agency Lacks 'Clear' Authority For ESPS
Apr 19, 2016 | InsideEPA
By Lee Logan
State and industry opponents of EPA's existing power plant greenhouse gas standards are rejecting the agency's arguments in support of the rule, charging in just-filed court briefs that it lacks “clear congressional authorization” for the “novel” regulation. -
Benicia Delays Decision on Oil Trains
Apr 19, 2016 | The Sacramento Bee
By Tony Bizjak
The city of Benicia on Tuesday postponed until September any decision on a local oil company’s controversial plan to run half-mile-long oil trains through Northern California to its bay side refinery. -
(ACC Mentioned) POLITICO Influence: Puerto Rico Investors hire Doug Davenport, Raben Group — Joe Walsh to Play at RNC — Fly-Ins Target GMO Labeling
Apr 19, 2016 | Politico
By Isaac Arnsdorf
..The American Chemistry Council and 214 other organizations sent every congressional office a letter backing H.R. 4775, the Ozone Standards Implementation Act of 2016, to delay implementation from the EPA's rule. -
Petitioners: EPA Conformity Guide Erodes Safeguards
Apr 20, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and community organizations led by the Sierra Club intend to ask a federal appeals court to review whether updated Environmental Protection Agency guidance illegally weakens public health and environmental protections under the Clean Air Act (Sierra Club v. EPA, D.C. Cir., No. 16-1097,statement filed 4/18/16). -
Senators Criticize EPA Budget Cuts to Water Programs
Apr 20, 2016 | BNA Daily Environment Report
By Brian Dabbs
Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) lashed out at Environment Protection Agency Administrator Gina McCarthy at an April 19 budget hearing, claiming the agency's “activist” agenda on climate change jeopardizes its other important work.
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Silica Rule Based on 'Series of Fantasies' -- Industry
Apr 20, 2016 | E&E Daily
By Pamela King
As industry groups take legal action to block the Labor Department's final silica standard, business interests yesterday critiqued the rule's cost and feasibility.
The Occupational Safety and Health Administration has estimated that its efforts to reduce silica exposure -- and thus the occurrence of silicosis and other deadly pulmonary diseases -- would cost $1.3 billion annually, but representatives for affected industries say the actual price will be much higher (Greenwire, March 24).
They also say the rule is technologically infeasible, a key element in lawsuits filed by the National Association of Manufacturers and the American Road & Transportation Builders Association (EnergyWire, April 5).
"It has been suggested that silica cannot be accurately measured at the reduced limit prescribed in the new rule, because many labs don't have the technology necessary to provide reliable results," Rep. Tim Walberg (R-Mich.), chairman of the Education and the Workforce Subcommittee on Workforce Protections, said during a hearing yesterday.
"Will employers -- acting in good faith and trying to do the right thing -- be held accountable for an enforcement regime that isn't feasible or practical?"
The rule is based on a "series of fantasies," said Henry Chajet, of counsel at Jackson Lewis PC, testifying on behalf of the U.S. Chamber of Commerce. Among them is OSHA's cost estimate.
In his testimony, Walberg cited an analysis by the National Federation of Independent Business that found the silica standard would cost more than $7 billion per year in the form of increased costs for consumers and taxpayers, as well as fewer jobs.
In construction, if each employee required one health screening per year, at a cost of $377, that alone would come to $1.2 billion annually, said Brady Homes Illinois President Ed Brady, testifying on behalf of the National Association of Home Builders.
"Twenty-five percent of profits for industry would be consumed by this single rule," he said.
Brady recommended congressional action to ensure that the rule does not take effect.
Another Illinois builder, Englewood Construction Inc., has advocated for the OSHA rule, saying that many of its elements simply formalize existing best practices. Other parts will require time and money to implement, but the effort will be worth the cost, the company wrote in an April 11blog post for the Labor Department.
"It is easy to see the cost of added protection for our workers, but how do you put a price on workers' health and long-term well-being?" Chuck Taylor, Englewood's director of operations, wrote. "Change rarely comes easily, or quickly, but when it is for the safety and wellness of the workers who are the heart of our industry, it is something we should all welcome and embrace."
James Melius, director of research for the New York-based Laborers' Health and Safety Fund of North America, said staying at the status quo is not an option. OSHA's silica standards have not changed since 1971, and exposure at current levels could lead to 100 percent risk of developing silicosis over a working lifetime in construction and 75 percent risk in general industry, he wrote in his testimony.
"While these are extrapolations and vary depending on the study used (some of the extrapolations were significantly lower), they demonstrate the potential for a clearly unacceptable risk of developing silicosis at the previous regulatory limits," he said.
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(ACC Mentioned) Phthalates Under Fire as EU Takes Regulatory Steps
Apr 20, 2016 | BNA Daily Environment Report
By Stephen Gardner
The European Chemicals Agency (ECHA) will in mid-June open a consultation on a wide-ranging REACH restriction on four phthalates that in effect would ban the substances from all consumer products imported into the European Union.
The four phthalates—benzyl butyl phthalate (BBP), bis(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP) and diisobutyl phthalate (DIBP)—are used as plasticizers in a range of consumer goods, in particular in polyvinyl chloride (PVC). They already have been included in Annex XIV of REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals), however.
While inclusion in Annex XIV means the substances cannot be used in the EU without a specific continued-use authorization, the restriction would limit them in products sold in the bloc. Under the restriction, the presence of the phthalates, singly or in combination, in imported goods would be limited to 0.1 percent by weight of platicized material.
Separately, a process also is underway to designate the phthalates as endocrine disruptors. Currently, the substances are listed in Annex XIV of REACH on the basis of their reprotoxic properties. Designation as endocrine disruptors would make it harder to obtain continued-use authorizations for the substances under REACH (241 DEN A-12, 12/16/14).
Denmark in the Lead
Dolores Romano, senior policy officer for chemicals at advocacy group the European Environmental Bureau, told Bloomberg BNA April 19 that “all these activities on phthalates are led by Denmark.”
The inclusion of the phthalates in Annex XIV of REACH “covers only the uses of the substances by European companies,” whereas the restriction would apply to all goods circulating within the EU, whether produced inside or outside the bloc, she said.
Identification of the substances as endocrine disruptors would create an assumption that “any exposure may pose a risk,” and “would help the restriction proposal,” Romano said.
WTO Notification
The European Commission, the EU's executive arm, has notified the World Trade Organization of the draft decision to designate the phthalates as endocrine disruptors. The decision has not yet been finalized.
Responding to the WTO notification, the American Chemistry Council , in a document dated Feb. 9 but published by the commission April 12, said it had “deep concern” about the endocrine disruptor designation, which it said was based on scientifically “questionable” evaluations.
The proposal to list the phthalates as endocrine disruptors with no safe exposure threshold “could lead to inconsistent and very different regulatory conclusions in different regions, leading to the disruption of trade of articles made with these substances,” the American Chemistry Council said.
Among EU countries, Germany, Italy, Spain and the U.K. oppose the designation, and “as together they build a blocking minority, the proposal has not succeeded yet,” Romano said.
Recycled PVC
On applications for continued-use authorizations for the phthalates, Romano said none had been filed for BBP and DIBP, and among those that were filed, the “most important” were for use of DEHP “in manufacturing PVC and recycled PVC articles.”
An EU regulatory committee will meet April 20 to consider applications for the use of DEHP in recycled PVC in consumer products such as Wellington boots.
ECHA told Bloomberg BNA that the proposed REACH restriction on the phthalates “does not foresee an exemption for articles produced with recycled PVC.”
The restriction would not apply to products used in industry and agriculture, however, and “according to the recycling industry, the majority of the articles manufactured from recycled PVC are used in industrial or agricultural settings,” the chemicals agency said.
Consumer goods such as Wellington boots “represent less than 10 percent of the volume of currently recycled soft PVC waste,” ECHA said.
Product types in which virgin phthalates are used that could be affected by the restriction include flooring, coated fabrics, mattresses, cables and other products with soft plastic coatings, according to the proposal to restrict the substances.
ECHA added that “it is foreseen that the restriction would enter into force in 2020.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800420&vname=dennotallissues&wsn=497117000&searchid=27430855&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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(ACC Mentioned) Finally, a Silica Rule: A Story of Industry Interference and Regulatory Delay
Apr 19, 2016 | The Union of Concerned Scientists
By Gretchen Goldman
“The science is clear,” Representative Frederica Wilson asserted in a Congressional hearing on silica earlier today. Last month, the Department of Labor issued the long-awaited silica rule to protect workers from health effects of crystalline silica dust exposure. The rule is long overdue in light of the department’s inadequate and outdated 1971 silica standard. The new rule should be celebrated; it has now caught up to science and when fully implemented, it will save more than 600 lives per year and have a net benefit of $7.7 billion annually. But we also need to take a deeper look at why something that made so much sense has taken so long to be implemented and why it’s still under attack.Silicosis and the costly impacts of silica exposure
Scientists have known for decades about the health effects of silica dust exposure, including silicosis, an irreversible and debilitating lung disease that can cause respiratory failure among other problems. Silica is widely used in the construction, food, pharmaceutical, and many other industries, and silicosis occurs when workers inhale the respirable crystalline silica dust that can get into the air.
Remarkably, none of this is new science. Back in the 1930s, the construction industry was conducting studies on exposure of workers to silica dust and the incidence of silicosis. In an infamous 1931 Gauley Bridge tunnel incident, hundreds of workers died of silicosis and it all could have been avoided if a “wet drilling” technique was used to keep the dust down. But doing so slowed the process, so the construction company only used it when inspectors were present.
Despite this overwhelming evidence of harm AND knowledge of how to prevent it, why weren’t such common-sense protections put in place sooner?Industry interference and regulatory delay at the OMB
In 2013, my colleague Michael Halpern wrote that it could be years before the silica rule would be in place. He was right. He knew that delay by the White House Office of Management and Budget (OMB) would slow progress on the rule, while workers continued to be needlessly exposed to silica dust and risk developing silicosis and other lung ailments.
In addition to this regulatory delay by OMB, we cannot overlook the role that industry has played in obstructing scientific understanding of the harms of silica and development of protections.
The chemical industry has long fought the Occupational Safety and Health Administration (OSHA) on regulation of silica. In his comprehensive book Doubt is Their Product, epidemiologist and OSHA head David Michaels observed, “In virtually every instance in which a federal regulatory agency proposes protecting the public’s health by reducing the allowable exposure to a toxic product, the regulated industry hires scientists to dispute the science on which the proposal is based.”
Indeed, this was the case with silica. The chemical industry engaged on a decades-long fight to cast doubt on the health effects linked to silica exposure. While thousands of exposed workers developed silicosis and died, the industry hired firms to run counter analyses to suggest no link between silica exposure and silicosis.American Chemistry Council, others challenge the science on silica and health
In 2013, OSHA proposed to tighten the silica standard. Several industry players, including the American Chemistry Council (ACC) and the U.S. Chamber of Commerce strongly opposed the proposal, citing financial impacts and technical challenges and questioning the science on which the proposal was based.
In response to the proposed rule, the American Chemistry Council testified in a hearing in 2014, challenging the scientific basis for the rule. Despite longstanding and numerous studies demonstrating the public health dangers of silica, the trade group inexplicably asserted that the strong scientific evidence was “not trustworthy” and “not ready for prime time”. The Crystalline Panel division of the ACC released a statement calling itself “committed to the prevention of adverse health effects” resulting from respirable silica dust, despite also noting that the panel does “not believe there is a need for a new crystalline silica standard”.
The influence of industry in the process made such an impact that OSHA took an unprecedented step: in a move the first of its kind, the agency asked anyone submitting public comments on the silica rule to disclose financial ties and any conflicts of interest, a great step toward greater transparency around who is influencing a rulemaking process.New protections from silicosis for workers
With a new rule finally in place, OSHA and others who fought the good fight to get this rule passed should take a bow and celebrate. This was a hard battle but they’ve won. Now countless workers will be protected from risking sickness and death from needless exposure to silica dust.
Unfortunately, proponents may not have time to relax. Members of Congress at today’s hearing were questioning the science that the rule is based on. Despite decades’ worth of science, politics continue. But for now, the science finally prevails.
http://blog.ucsusa.org/gretchen-goldman/finally-a-silica-rule-a-story-of-industry-interference-and-regulatory-delay
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(ACC Mentioned) Fast Food Serves Up Phthalates, Too, Study Suggests
Apr 19, 2016 | CNN
By Carina Storrs
A new study finds that those fast food drive-thru hamburgers and take-out pizzas could increase your exposure to hormone-disrupting chemicals called phthalates.
Researchers looked at the relationship between how much fast food people consume and the level of phthalates in their urine. The data were collected by the Centers for Disease Control and Prevention between 2003 and 2010 as part of nationwide surveys on health and nutrition that included more than 8,877 children and adults.
About one-third of the participants in the study said they had eaten fast food in the last 24 hours. Those who consumed a lot of fast food during that time, meaning that at least 35 percent of their calories came from fast food, had 23.8 percent and 39 percent higher levels of two phthalates called DEHP and DiNP, respectively, compared with participants who did not report having any fast food in the last day. More modest fast food consumers — those who ate fast food but it made up fewer than 35 percent of their calories — had 15.5 percent and 24.8 percent increases in DEHP and DiNP in their urine.
The researchers did not find a link between fast food consumption and another endocrine disruptor called bisphenol-A, or BPA, which has infamously been linked with early puberty and problems in brain development.
"There are increasing recommendations from scientific and clinical bodies suggesting the general population and vulnerable populations like pregnant women reduce their exposure to phthalates, but up to now there have been very few sources that people can have control of," said Ami R. Zota, assistant professor of environmental and occupational health at the George Washington University Milken Institute School of Public Health. Zota is the lead author of the study, which was published Wednesday in the journal Environmental Health Perspectives.
The American College of Obstetricians and Gynecologists released a report in 2013stating that high levels of exposure to phthalates could lead to adverse reproductive outcomes in women. Research has linked these chemicals with increased risk of fibroids and endometriosis, which can cause infertility, and reduced IQ and behavioral problems in children exposed in the womb. High phthalate levels have also been linked with diabetes risk in women and adolescents.
There are countless ways that people can be exposed to phthalates. They are found in soaps, perfumes, nail polish, medications, and we can ingest, inhale and absorb them through the skin. Out of all these routes of exposure, however, diet is emerging as a major one.
Food can be a major source of phthalates because packaging materials and equipment used in food processing such as conveyor belts and tubing contain phthalates, and these chemicals can leach into food.
"This study shows that fast food may be an especially important source of phthalate exposure," said Linda Birnbaum, director of the National Institute of Environmental Health Sciences and the National Toxicology Program. "In fast food, it's even more handling and more packaging" than food you might buy at the grocery store, she added. For example, just about everyone handling ingredients at a fast food joint is supposed to wear gloves, which contain phthalates that can be transferred to food.
More studies will need to be done to see which menu items specifically lead to spikes in phthalates, Birnbaum said. The current study found that grain-based items and fast foods containing meat were linked with greater increases in phthalate levels. This could be because of the way these foods are processed and packaged or because the fats in these foods bind phthalates better.
Although the current study did not find a link between fast food consumption and BPA exposure, it is too soon to say for sure, Birnbaum said. One of the biggest sources of BPA is thought to be canned foods, and fast food restaurants that serve canned soda could also be serving up BPA, she said. Birnbaum was not involved in the current study, although she has recently done research with Zota looking at the relationship between pesticides and other environmental pollutants and cancer markers in the body.
The study looked at two phthalates, but the CDC survey included measurements for about 10 phthalates in total, and some of them could also have been higher in people who eat a lot of fast food, Zota said. She and her colleagues focused on DEHP and DiNP because they are the main phthalates used in food processing and packaging to keep plastics soft.
So far there is the most evidence incriminating DEHP and its effect on health, including brain development, behavior and respiratory health, but studies are starting to suggest that DiNP could have similar effects, Zota said. As a result, efforts to replace DEPH with DiNP in consumer products, which her earlier research suggested could be taking place, could be futile, she said.
http://www.ksl.com/?sid=39416822&nid=1010
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TSCA Talks Continue Despite Inhofe's ‘Hours Away' Claims
Apr 20, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Lawmakers pushed back on Sen. James Inhofe's (R-Okla.) assertion April 19 that negotiators were “hours away” from an agreement to advance legislation to amend the nation's primary chemicals law.
However, aides to key legislators agreed that talks continue and a path forward could be reached soon on the first update to the Toxic Substances Control Act since it was passed in 1976.
Inhofe, chairman of the Senate Environment and Public Works Committee, had suggested a deal was at hand during an April 19 committee hearing.
“It looks like now we're just a matter of, hopefully, hours away of having an agreement with the House,” he said that morning.
However, by mid-day an aide to Sen. Barbara Boxer (D-Calif.), ranking Democrat on the committee, told Bloomberg BNA reports of negotiators being hours away from an agreement on amending the Toxic Substances Control Act were overstated.
Legislative text spelling out tentative agreements was yet to be circulated, the aide said.
Sen. Roger Wicker (R-Miss.) said a resolution of differences between the House and Senate bills amending the Toxic Substances Control Act was expected soon.
Chambers Working to Resolve Differences
For weeks, both chambers have been working to resolve differences between the House's narrow TSCA Modernization Act (H.R. 2576) and the Senate's comprehensive Frank R. Lautenberg Chemical Safety for the 21st Century Act. Formerly numbered S. 697, it passed the Senate unanimously in December as an amendment to H.R. 2576 (243 DEN A-1, 12/18/15).
An aide to Rep. John Shimkus (R-Ill.), who spearheaded the House's effort to secure near-unanimous approval of its bill, said Shimkus is hopeful a bill can be passed by both chambers soon.
The process, however, “is not beholden to any arbitrary timeline,” Shimkus's aide said.
Longer Timeline Possible
An aide to Sen. Tom Udall (D-N.M.), who worked for more than two years to secure bipartisan passage of the Senate bill, also said it may take longer than Inhofe suggested.
“We're very optimistic about the progress. We're hopeful that an agreement can be reached,” Udall's aide said.
No staff would disclose any details of agreements reached so far, but several aides said the negotiators are working toward a final bill that could be voted on by both chambers rather than a bill that would have to go through a formal conference prior to floor consideration.
Senate leadership has discussed TSCA reform at nearly every meeting it has held since the Senate's bill passed unanimously in December, an aide to Senate Majority Leader Mitch McConnell (R-Ky.) told Bloomberg BNA.
“It's a very important bill,” McConnell told reporters at his weekly press briefing.
“If they can wrap up an agreement, we expect to pass it,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800445&vname=dennotallissues&fn=87800445&jd=87800445
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TSCA Negotiators Still Seeking Deal on Preemption Issues
Apr 19, 2016 | Politico Pro
By Darren Goode and Alex Guillen
Lawmakers seeking a bicameral breakthrough on the stalled update to the 40-year old Toxic Substances Control Act are still haggling over whether a new law will preempt state law, one of several remaining obstacles to announcing a deal this week, sources closely following the talks said Tuesday.
House and Senate TSCA negotiators have made progress in the past few weeks in resolving differences in the hopes of releasing a deal that could be taken up next week by both chambers. Backers of the bill, including Sen. Jim Inhofe (R-Okla.), are pushing to finish the bill before Congress' May recess, since they fear lawmakers' focus will shift toward finishing appropriations bills and the fights over Supreme Court nominee Merrick Garland once they return.
One staffer involved said a deal is shaping up to be a hybrid between the Senate bill and far-narrower House version with "no real slam dunks reached on either side" on issues like prioritizing chemicals or industry petitions and fees in chemical reviews.
Several hurdles stand in the way of any deal, including Sen. Barbara Boxer's (D-Calif.) opposition to including "pause preemption," a period where states aren't allowed to act while EPA conducts a risk assessment of a chemical.
The House bill also does not include a pause preemption clause, sources said, but a final deal is expected to include some type of pause, and other concerns remain around the federal preemption of state law. There is also the question of what to do with House language that critics assert would shield Monsanto from legal liability for producing now-banned PCBs.
Inhofe, chairman of the Environment and and Public Works committee, and a spokesman for House Environment and the Economy subcommittee ChairmanJohn Shimkus (R-Ill) both said Tuesday they hope a deal could be reached soon. Shimkus had initially pushed a goal of reaching a deal last Friday.
But Boxer threw cold water on any notion that a deal was near.
“On TSCA, there’s no agreement," she said, adding that she had consulted with House Minority Leader Nancy Pelosi (D-Calif).
In addition, several sources said Shimkus still had a concern, but they declined to specify the nature of it out of fear that talks could fall apart if it is publicly detailed.
https://www.politicopro.com/energy/story/2016/04/tsca-negotiators-still-seeking-preemption-deal-108151
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Sen. Booker Says 'Fragile' TSCA Reform Talks Continue With EPA's Input
Apr 19, 2016 | InsideEPA
By David LaRoss
Sen. Cory Booker (D-NJ) says that “ongoing and fragile negotiations” continue between House and Senate lawmakers on trying to craft a final compromise Toxic Substances Control Act (TSCA) reform bill that could advance in both chambers, adding that EPA has been offering its support in the long-running bid for a deal.
During an April 19 Senate Environment & Public Works Committee hearing on EPA's fiscal year 2017 budget request, Booker thanked agency Administrator Gina McCarthy for the agency's support on TSCA negotiations. "These last few days, you guys have been extraordinary,” he said.
After the hearing, Booker told Inside EPA that he and his staff are involved in the "ongoing and fragile negotiations" over the final bill, but declined to comment further on the state of those talks or what issues are left to resolve.
During her remarks at the hearing, EPW ranking member Sen. Barbara Boxer (D-CA) -- who is also part of the negotiations on TSCA reform -- said "Also, on TSCA there's no agreement. I just checked” with House Minority Leader Nancy Pelosi (D-CA).
Last month, Boxer and a staffer for committee chairman Sen. James Inhofe (R-OK) confirmed that “the leaders of the committees,” including EPW and the House Energy and Commerce Committee that shepherded that chamber's TSCA bill, are meeting regularly to work out a compromise reform package, rather than assembling a formal conference committee.
It is unclear how far those negotiations have expanded beyond Inhofe, Boxer, and House energy panel chairman Rep. Fred Upton (R-MI) and ranking member Rep. Frank Pallone Jr. (D-NJ).
However, the bills' respective authors -- Sens. David Vitter (R-LA) and Tm Udall (D-NM) and Rep. John Shimkus (R-IL) in the House -- could be likely candidates.
Both the Senate's TSCA reform bill, S. 697, and the narrower House bill, H.R. 2576, were approved with broad support in floor votes last year.
But lawmakers must reconcile significant differences between the measures and craft a final compromise bill that will go before both chambers in order to enact a long-sought overhaul of the chemicals law. Normally, a formal conference committee would convene to negotiate the compromise language. But for TSCA reform, lawmakers and their staff members are mounting informal talks in hopes of resolving their conflicting approaches.
Conference Talks
Explaining the decision, Inhofe's staffer said after a March 9 EPW hearing that “rather than go through the trouble of appointing a conference now . . . the members have more of an interest in reaching a deal reaching a reconciliation of the two bills, and moving forward from that in whatever would be the best procedural way.”
Both bills would rework the 1976 chemical safety act and give EPA much broader authority to regulate existing chemicals that are already in the marketplace, eliminating hurdles the current law places on such rules that have hindered the agency's efforts to restrict some high-profile chemicals -- including its failed 1991 attempt to ban asbestos.
But they differ greatly on how to treat states' restrictions on chemicals that were previously not subject to federal TSCA regulations but which EPA later asserts authority over.
S. 697 would “grandfather,” or preserve, states' existing chemicals laws as of its passage, but any such restrictions enacted after TSCA reform is implemented would be preempted as soon as EPA defines and publishes the scope of a safety assessment and safety determination under its TSCA section 6 authority to review existing chemicals' risks.
However, the House bill takes a narrower approach and only preempts new state restrictions when EPA uses its TSCA authority to restrict the same substance. It would also include a grandfathering clause similar to the Senate bill, and would preserve state toxic tort claims even after EPA takes final action on regulating a chemical, unless they "actually conflict" with the new federal requirement.
The difference between the bills' preemption language, and Boxer's strident opposition to broad preemption, has led many observers to label that issue as the biggest obstacle to crafting a consensus bill. EPA Administrator Gina McCarthy, in a January letter to lawmakers, generally backed the Senate bill but did not take sides on the preemption debate.
http://insideepa.com/daily-news/sen-booker-says-fragile-tsca-reform-talks-continue-epas-input
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NAS Panel Weighs BioTech Task Amid TSCA Reform, Other Changes
Apr 19, 2016 | InsideEPA
By Maria Hegstad
Members of a new National Academy of Sciences (NAS) committee tasked with helping EPA and other agencies update their joint framework for regulating biotechnology products are wrestling with how to shape their recommendations in light of potential changes to the Toxic Substances Control Act (TSCA) and other actions that could limit the usefulness of their findings.
During the panel's first meeting April 18 in Washington, D.C., David Rejeski of the Woodrow Wilson Center for International Scholars, noted that “we are in the middle of TSCA reform.” He asked representatives of the White House and federal agencies if the committee should address biotech regulation in the context of “new TSCA or old TSCA? Or does it matter?”
The White House Office of Science & Technology Policy (OSTP) last summer tasked EPA, the Food and Drug Administration (FDA) and the Agriculture Department (USDA) to update the federal coordinated framework -- last revised in 1992 -- on how the agencies oversee biotechnologies.
OSTP's July memo, "Modernizing the Regulatory System for Biotechnology Products," says the Obama administration is seeking to update the existing federal framework for regulating biotechnology to ensure regulations protect human health and the environment without unnecessarily hindering technology. Industry groups and advocates have provided divergent comments on how the framework should be updated.
OSTP also directed the agencies to sponsor an independent, external group to provide the agencies with recommendations on how best to modernize their biotech regulatory system. The NAS committee, however, has already been challenged by advocacy group Food and Water Watch (FWW), which argues that nine of the 13 committee members have “conflicts of interest and industry-aligned perspectives,” which the group protested at the April 18 meeting.
Responding to questions about the panel's task, Robbie Barbero, OSTP's assistant director for biological innovation, urged the panel to focus on biotechnology products, and how they may change over the next five to 10 years. He suggested that the committee focus on how new products may present new challenges to agencies' risk assessment and regulation practices.
“That's another reason why the statement of task doesn't ask you to speak specifically to the current system and how well it works, because there are various efforts to modernize the system,” Barbero said. “To the extent you're looking at the current system is spinning your wheels a bit more than you need to be.”
But Douglas Friedman, the NAS responsible staff officer for the panel, pressed Barbero, noting that the task the agencies provided NAS asks the committee to “[d]escribe the existing risk analysis system for biotechnology products including, but perhaps not limited to, risk analyses developed and used by EPA, USDA, and FDA, and describe each agency’s authorities as they pertain to the products of biotechnology,” among other issues.
“I have to push back on that a little bit,” Friedman said. “This is a changing situation . . . as we meet. To provide the most long-term value, the group needs to have a better understanding of how this fits in. How would you as a group like to see the committee deal with that?”
New Guidance
One of EPA's representatives, Mark Segal, noted that the agency is working on new guidance, while an FDA speaker indicated that agency is working on a new rulemaking defining biotechnology. Segal, with EPA's toxics office, noted that EPA staff hopes to develop new biotech algae guidance for companies on what information they need to submit for EPA's pre-production review under TSCA “sometime during this year.” Segal promised a draft will be released for public comment before it is finalized.
“Some of the newer techniques, you may be ahead of us, and may be able to get information that we may be able to consider,” in the guidance, Segal said. “We think we have a pathway for algae; We're not so sure about things people call synthetic biology. We know we have to deal with it.”
Similarly, Michael Firko said that his agency, USDA's Animal and Plant Health Inspection Service, is planning to “publish the proposed rule in the middle of the summer.” He added that this is only a proposal, and that if public comments or information from the NAS rule recommends changes, “we'll change it.”
Barbero, however, further pressed the committee to focus on other aspects of its task, namely directions to “[d]etermine whether potential future products could pose different types of risks relative to existing products and organisms,” and to “[i]ndicate what scientific capabilities, tools, and expertise may be useful to the regulatory agencies to support oversight of potential future products of biotechnology.”
“If the committee describes a risk assessment framework after that changes, nobody's going to say, 'You got it wrong,'” Barbero said. “I don't know that you'd even need to say that regulatory agencies are ready for this product. It would be this technology is different, or, do they pose different types of risks than existing products do? That's where focusing on the products is [better] . . . The focus is really, what does that future look like?
Another panelist, Jennifer Kuzma director of North Carolina State University's Genetic Engineering and Society Center, asked the agency representatives to describe “where you guys are thinking of the broadest interpretation of future biotech products,” as examples of things that the committee might consider.
Segal provided as examples of interest to EPA's toxics office “products that use biocontainment,” saying, “People are talking about using XNA approaches [and] alternate coding systems . . .”
Kuzma also asked the agency representatives “What would you consider a different type of risk?”
Chris Wozniak, of EPA's Bio-pesticides and Pollution Prevention Division, replied that one technology presenting a new risk for the pesticides office to consider would be “a gene drive system, not just for insects, but also weed control. That would be a game changer . . . when you eliminate a species, that's not something generally included in our risk assessment process.”
Similarly, panelist Steven Bradbury, formerly director of EPA's pesticides office and now a toxicology professor at Iowa State University, asked the agencies' staff what is unique about biotechnology.
Segal replied, “One of the things we have to deal with about microorganisms under TSCA, is the sources of genetic material . . . obtained using genomic approaches where the organism itself has never been seen . . . What are the consequences if that . . . new organism is released? What do we know about the consequences, especially if it's in large scale? . . . I'd like to see your thoughts on something like that.”
Panel Composition
Meanwhile, FWW is urging NAS to disband the committee and reformulate it with more members representing perspectives to balance what the group considers the strong pro-industry component to the panel. The group argues that NAS staff are not meeting the Federal Advisory Committee Act's (FACA) conflict of interest and balance requirements for NAS committees. FWW protests NAS' decision to disclose financial conflicts of interest for just two of the committee members, Steven Evans and Jeffrey Wolt, while deeming their service on the committee indispensable.
FWW argues that by contrast, it considers most of the committee members to have an industry bias. “It is troubling that [NAS] did not disclose all financial conflicts of interests, as required by FACA,” the group writes inApril 5 comments to NAS. “It is equally troubling that the [NAS] invited no opponents or strong critics to be part of the committee, instead engineering a totally one-sided panel that violates FACA’s requirement for 'balance.'”
The group goes on to request that NAS “dissolve the current committee and form a new panel composed of independent scientists and experts -- or a balance of biotechnology proponents and critics to reflect the mainstream scientific discourse on this matter. The [NAS] should read and seriously consider the nominations of all stakeholders involved, including the public-interest groups that took time to provide the [NAS] with the names of scientists and experts who may be critical of the biotechnology industry.”
http://insideepa.com/daily-news/nas-panel-weighs-biotech-task-amid-tsca-reform-other-changes
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Osha's New Silica Rule Faces Legal Challenges
Apr 19, 2016 | Chemical Watch
By Sylvia Palmer
Several trade groups and worker unions have filed petitions, requesting review of the US Occupational Safety and Health Administration’s (Osha) recently amended rule for occupational exposure to respirable crystalline silica.
Challengers to the new rule do not agree that the permissible exposure limit (PEL) should be changed. They believe the previous standard, set in the 1970s, was appropriate for protecting against silica-related disease in general industry, and achieving full compliance with that would best protect workers.
The petitions contend that the new rule to regulate silica exposure has not been properly and fully considered by Osha. They say they expect the rule will impose negative economic impacts on industry, due to outdated health and economic data used in its development.
The petitions were brought in six district courts by:North America’s building trades unions;AFL-CIO, et alia;Associated Masonry Contractors of Texas et alia;American Foundry Society et alia;North Dakota Chamber of Commerce;State Chamber of Oklahoma; andGeorgia Construction Aggregate Association et alia.
Last week, Osha filed notice with the United States judicial panel on multidistrict litigation to consolidate the seven petitions, which were filed within ten days of the 25 March release of the final rule.
The rule, comprised of a standard for construction and one for general industry and maritime, lowers the permissible exposure limit (PEL) for silica from 100 micrograms per cubic meter (μg/m3) to 50μg/m3, as an eight-hour time-weighted average. It also imposes additional requirements, related to controlling and assessing exposure, hazard communication and recordkeeping.
Both standards take effect on 23 June, with a compliance schedule for different industries:construction: one year after the effective date; andgeneral industry and maritime: two years after the effective date.
Osha estimates the rule – once fully implemented – will save more than 600 lives and prevent over 900 new cases of silicosis annually, with projected net annual benefits estimated at $7.7bn.
New petitions, which can continue to be filed until late May, will be also be consolidated with the earlier petitions, according to federal law.
https://chemicalwatch.com/46630/oshas-new-silica-rule-faces-legal-challenges
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(ACC Mentioned) Support Briefs Filed in EPA Waste Rules Legal Fight
Apr 20, 2016 | BNA Daily Environment Report
By Anthony Adragna
EnvironmentalLink and industry groups urged a federal appeals court not to accept arguments from the other side seeking to invalidate aspects of two Environmental Protection Agency regulations governing reuse of spent secondary materials (Am. Petroleum Inst. v. EPA, D.C. Cir. , No. 09-1038, briefs filed4/18/16).
In a brief filed with the U.S. Court of Appeals for the District of Columbia Circuit April 18, a coalition of industry intervenors argued environmental groups lacked standing to challenge the 2015 definition of solid waste rule and said the EPA properly decided it lacked authority to regulate certain materials under the Resource Conservation and Recovery Act.
“Environmental petitioners argue that RCRA requires EPA to regulate certain substances, and to impose regulatory conditions and requirements on such materials, to prevent their hypothetical future discard,” the brief said. “However, RCRA cannot plausibly be understood to require EPA to regulate materials that have not yet been discarded or to impose RCRA duties and obligations to prevent materials from hypothetically becoming discarded in the future.”
Among the groups included in the brief are the American Chemistry Council , American Coke and Coal Chemicals Institute, American Gas Association, Edison Electric Institute, Metals Industry Recycling Coalition, National Mining Association, National Rural Electric Cooperative Association and Utility Solid Waste Activities Group.
Many of the environmental groups in the case intervened to defend the EPA against the industry groups' petitions and vice versa, meaning some entities are involved in the case as both petitioners and intervenors in support of the agency.
Oral Arguments Not Scheduled
Oral arguments in the case have not yet been scheduled. The D.C. Circuit in May 2015 opted to consolidate challenges to the EPA's 2015 definition of solid waste rule (80 Fed. Reg. 1694; RIN 2050–AG62) with a 2009 petroleum industry lawsuit over the agency's treatment (76 Fed. Reg. 44,094; RIN 2050–AG62) of spent petroleum refinery catalysts (98 DEN A-1, 5/21/15)
That 2015 rule required entities looking to take advantage of certain exclusions from RCRA hazardous waste exclusions to show their wastes met four mandatory legitimacy criteria. The regulation also gave the EPA a greater up-front role in verifying the legitimacy of third-party recycling operations by requiring recyclers to demonstrate their ability to pay for any cleanups and to submit information about their operations.
April 2015 challenges to that regulation from a host of entities were merged with a 2009 lawsuit asserting the EPA improperly asserted regulatory authority over spent refinery catalysts in a 2008 waste regulation because those by-products of petroleum refining were not “discarded” wastes under RCRA.
Environmental Groups Defend EPA
Environmental groups and a hazardous waste industry group argued in a separate brief that the EPA properly used its authority, even though they contend the regulation does not go far enough to ensure protection of human health and the environment.
“Dismissing overwhelming record evidence of poisoned air, soils, and waters in communities near hazardous waste recycling facilities, industry petitioners ask the court to block EPA from taking even these small steps to narrow existing, dangerous loopholes,” the brief said.
“These requirements, which EPA calls the ‘legitimacy criteria,' similarly provide a modicum of additional assurance that the recycling conducted under all of those exclusions is actually legitimate, rather than a mere sham to circumvent hazardous waste regulation under RCRA,” it continued.
The briefs suggest the coalition is defending the EPA waste rules reluctantly.
One portion of the brief calls the legitimacy criteria entities must meet to take advantage of the exclusions a “few small steps” that are “insufficient to prevent the discard of hazardous waste and protect human health and the environment” but says they will nevertheless “help to protect against ongoing abuse and misuse of EPA's many recycling exclusions and exemptions.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800436&vname=dennotallissues&wsn=497119500&searchid=27430855&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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Murkowski Aims for Bill Signing Before August Break
Apr 20, 2016 | E&E Daily
By Geof Koss
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said yesterday she was aiming for a quick conference with the House to produce a final energy bill that President Obama could sign before the August congressional recess.
The Senate last night worked through the remaining amendments to the committee's bipartisan energy package, S. 2012. It set the vote on final passage for this morning.
In an interview ahead of yesterday's vote-a-rama, Murkowski said she was ready to get going on reconciling her version with House Energy and Commerce Chairman Fred Upton's H.R. 8. The House passed the Michigan Republican's legislation in December.
"My hope is sooner rather than later, of course, but I understand it's going to take the House a few days," Murkowski said. "But I've already been in touch with Upton, and he is anxious and excited to get to work."
With appropriations bills expected to consume much of the legislative calendar for the next several months -- as well as an extended August recess -- Murkowski said she wants to avoid the final product slipping into the lame-duck session.
"I really really, really do not want to be in that situation," she said. "I'm going to be pushing to try to move this as soon as possible. I'd like to see it done and out before we break at summer."
Ranking member Maria Cantwell (D-Wash.) said yesterday that she expected informal discussions with House counterparts to resume "as soon as the bill passes."
The chamber worked through a slew of fairly noncontroversial amendments to the bill yesterday, adopting 29 en bloc -- including some that conservative group Heritage Action for America this week criticized as adding to the "big government interventionism embodied in the underlying bill."
Yesterday's votes ended a two-month hiatus after Senate leaders pulled the bill from the floor over logjams on aid for Flint, Mich., and a fight over offshore drilling.
Both obstacles were removed from the energy debate last week in a surprise agreement that set up yesterday's amendment votes and today's final passage (E&E Daily, April 14).
More controversial amendments were subject to 60-vote thresholds, although the chamber voted to adopt 97-0 a public lands package sponsored by Murkowski and Cantwell. It addresses conveyances in Colorado, New Mexico and Arizona.
Senators voted 66-31 to adopt the "SAVE Act" -- sponsored by Sens. Michael Bennet (D-Colo.) and Johnny Isakson (R-Ga.) -- despite conservative opposition (E&E Daily, April 19).
The proposal would allow federal mortgage underwriters to consider the energy savings from efficiency upgrades when determining a homebuyer's ability to make payments. The U.S. Chamber of Commerce yesterday expressed support for the amendment in its own key vote letter (E&ENews PM, April 19).
Senators adopted by voice vote an amendment by Sen. Richard Burr (R-N.C.) to require the Fish and Wildlife Service to write a new management plan for the Corolla wild horse in his state's Outer Banks.
Conservation groups strongly opposed the amendment, which had been slated for a roll call vote. Murkowski drew laughs when she neighed loudly during the vote.
The chamber rejected on a 34-63 vote an amendment by Sen. James Lankford (R-Okla.) that would have limited land acquisition under the Land and Water Conservation Fund until the administration meets certain requirements on public land maintenance.
An amendment by Sen. John Boozman (R-Ark.) to require a study of the Clean Line transmission project fell 42-55.
New Mexico Democratic Sen. Tom Udall's amendment to direct the Treasury Department to submit a report to Congress on the establishment of Clean Energy Victory Bonds failed 50-47.
Sen. Rand Paul's amendment to establish "economic freedom zones" -- strongly opposed by environmentalists -- was unable to surpass a budget point of order raised by Cantwell. The Kentucky Republican's motion to waive the budget rules failed 35-62.
An amendment from Sens. Ed Markey (D-Mass.) and Bill Cassidy (R-La.) to authorize the Department of Energy to increase drawdowns and sales from the Strategic Petroleum Reserve to maximize the financial return to the Treasury passed by voice vote.
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US Shale Production Will Shape the Future of Global Commodity Markets
Apr 19, 2016 | Platts
By Luciano Battistini
During my time at Platts, I've seen the US shale revolution gain ground and then dominate much of the conversation around energy in America. Its growth was so rapid and production so prolific that it drew attention around the world, and US shale is again changing as the world's markets seek a new balance.
From crude oil to refined petroleum products, from natural gas to LNG and NGLs, from feedstocks to petrochemical products, US shale made a huge impact on many sectors. In this Snapshot video, I share how shale's products are spreading into markets around the world, and where future demand may lie.
http://www.platts.com/videos/2016/april/snapshot-us-shale-0416
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US Oil Drillers Seek Limits on Crude Imports
Apr 19, 2016 | AP (In Fuel Fix)
Oil drilling companies and royalty owners from the Texas Panhandle to New Mexico’s stretch of the Permian Basin are embarking on a grass-roots campaign to limit foreign oil imports, salvaging what they say is a major sector of the U.S. economy.
“American oil is competing against a cartel of government operators which has a stated initiative of driving an American industry out of business,” said Tom Cambridge, one of the Panhandle producers leading the campaign.
The grass-roots movement is pushing for the next president of the United States to issue a proclamation setting quotas for imports — something that hasn’t been done in more than four decades.
“It’s not that this is the first time but this is a more concerted, deliberate effort and I think it’s gaining ground,” said John Yates Jr., a member of a well-known family that is a leader in the industry and has over the last century developed some of New Mexico’s largest and most significant oilfields.
Under the plan unveiled by the Panhandle Producers and Royalty Owners Association and other supporters, import quotas could be imposed within the next administration’s first 90 days in office. Canadian and Mexican oil would be exempt.
Quotas on heavy crude oil would be phased in and imports would eventually be limited to around 10 percent of total demand.
Supporters say they’re drawing a line in the sand after more than a dozen oil-rich nations failed to agree during a recent meeting in Saudi Arabia to freeze production. They blame Middle East producers for flooding the market and fueling the price war as a means to stifle domestic production.
Oil fell in the past two years from above $100 a barrel to touch 12-year lows under $30 a barrel earlier this year, and U.S. production has dropped by as much as 700,000 barrels a day and the number of rigs in the field has sunk to historic lows.
By 2017, crude oil production is forecast to average around 8 million barrels per day, nearly 1.5 million less than in 2015, according to the U.S. Energy Information Agency.
Oilfield equipment along one of the two-lane highways that link West Texas and southeastern New Mexico sits idle in company yards, and local governments and schools are feeling the pinch as severance taxes and royalties dwindle.
“Service companies, restaurants, real estate, the people building motels and hotels — there are a lot of impacts,” said Yates told the Associated Press.
Daniel Fine with the Center for Energy Policy at New Mexico Tech has been commissioned by the quota supporters to bring the idea before lawmakers and other elected leaders.
“The idea is to support domestic energy sources against import reliance and the risks that come with that,” said Fine, who is also an energy policy adviser to Gov. Susana Martinez’s administration and a former MIT research associate.
The effort launched this week with forums in Amarillo, Texas, and Artesia, New Mexico.
http://fuelfix.com/blog/2016/04/19/us-oil-drillers-seek-limits-on-crude-imports/
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Greens Urge Judges to Reject Md. Export Project
Apr 19, 2016 | E&E News PM
By Robin Bravender
Environmentalists pressed federal judges today to reject Dominion Resources Inc.'s plans to export liquefied natural gas from a Chesapeake Bay facility.
Federal regulators have already approved Dominion's plans to convert its $3.8 billion Cove Point LNG import terminal in Maryland into an export facility, but greens and BP Energy Co. sued the Federal Energy Regulatory Commission, arguing that its approval of the project was illegal.
Attorneys representing environmental challengers argued to a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit that FERC's approval should be rejected. BP, meanwhile, doesn't oppose the project itself but wants the court to find that Dominion unduly discriminated against BP.
The case was heard by Judge Judith Rogers, a Democratic appointee, and Republican-appointed Judges Thomas Griffith and Brett Kavanaugh.
Environmental groups the Chesapeake Climate Action Network, Patuxent Riverkeeper and the Sierra Club -- represented in court by Earthjustice -- contend that FERC failed to properly consider the impacts on air, water and climate change that the project would trigger by expanding hydraulic fracturing in the region.
"FERC failed to take a hard look at the significant environmental consequences of allowing Dominion to construct and operate a terminal capable of exporting nearly one billion cubic feet of LNG per day for 20 years to India and Japan," the green groups said in a brief to the court.
The environmentalists say FERC did not properly consider the projects' greenhouse gas emissions, the impacts of increased shipping on endangered North Atlantic right whales and the risks posed by possible industrial accidents in the populated area.
FERC has argued to the court that the agency isn't the only one responsible for assessing the environmental impacts of the project under the National Environmental Policy Act and that the Energy Department and other agencies conducted broad studies looking at the possible impacts.
"Notwithstanding other agencies' work, [FERC's] comprehensive environmental review, culminating with the lengthy environmental assessment of the construction and operation of a single liquefaction unit at the existing, operating Cove Point Terminal, satisfied FERC's statutory responsibilities under the National Environmental Policy Act to take a 'hard look' at the environmental consequences of the liquefaction project," FERC told the judges in a brief.
This case is one of several where environmentalists are challenging FERC approval of natural gas export infrastructure. In November, the D.C. Circuit heard oral arguments in two cases where the Sierra Club is challenging FERC's approval of gas export projects at the Sabine Pass LNG terminal in Cameron Parish, La., and a LNG terminal in Freeport, Texas (Greenwire, Nov. 13, 2015).
BP Energy, a subsidiary of BP PLC, contends that FERC failed to analyze whether the company had been discriminated against when Dominion offered its competitor -- but not BP -- a favorable early contract termination.
Erika Maley, who represented BP in court today, argued that the company suffered discrimination when Dominion offered Statoil Natural Gas LLC a valuable opportunity to relinquish or "turn back" unwanted services without offering an equivalent opportunity to BP.
In a brief to the court, BP also noted, "The CEO of Dominion's parent company publicly stated that the company offered this uniquely beneficial deal to Statoil because a [Dominion] affiliate was working with Statoil on other projects -- showing that the turn back opportunity was a prohibited 'sweetheart deal,' which this court has ruled constitutes undue discrimination."
FERC has argued that BP's petition should be dismissed because it lacks "standing" and hasn't demonstrated that "it has suffered or will suffer any harm as a result of the early termination of another customer's service contracts with Dominion."
But the judges today appeared to disagree with that argument, pressing BP's attorney on the merits of their assertions. FERC also argues that it didn't unduly discriminate against BP.
An opinion in the case, EarthReports Inc. v. FERC, will likely be issued within the next year.
http://www.eenews.net/eenewspm/2016/04/19/stories/1060035897
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House, Senate Split on Energy and Water Bill Riders
Apr 20, 2016 | E&E Daily
By Christa Marshall, Tiffany Stecker and George Cahlink
The House Appropriations Committee approved an energy and water spending bill yesterday by voice vote after a meeting that erupted into a tense debate about the Flint, Mich., water crisis.
The $37.4 billion energy and water measure would slash efficiency and renewable research programs below the White House request, increase fossil fuel spending and provide a funding boost for the controversial Yucca Mountain nuclear repository in Nevada, a Republican priority.
It also would block the administration from implementing its recent Clean Water Act jurisdictional rule and boost funding for the Army Corps of Engineers to a record $6.1 billion -- $100 million more than fiscal 2016 enacted level and $1.5 billion over the president's budget request.
In opening remarks, committee Chairman Hal Rogers (R-Ky.) praised the bill's support for nuclear security, science research and coal.
"The bill promotes funding for an all-of-the-above energy strategy -- helping our nation work toward energy independence and energy security," said Rogers.
Energy and Water Appropriations Subcommittee ranking member Marcy Kaptur (D-Ohio) said she was disappointed in cuts to the Department of Energy's Office of Energy Efficiency and Renewable Energy (EERE), which would be funded at $1.825 billion, about a billion below the White House request.
The office is key to Mission Innovation, a global plan among 20 countries to address climate change by doubling clean energy research and development funding over five years.
Kaptur said proposed cuts to solar power in the House plan would "allow our global competitors to grow their market share at our expense in this rapidly expanding industry, which will be so important to our economic well-being in coming decades."
Outside of increased funding for the Advanced Research Projects Agency-Energy (ARPA-E) and DOE's Office of Science, the House bill largely ignores proposed funding increases under Mission Innovation and instead offers cuts to a range of renewable, efficiency and sustainable transportation programs at EERE.
ARPA-E would see an increase to $306 million in the House bill, above levels in a companion Senate bill but below the White House request of $350 million. The agency -- which funds cutting-edge technologies in the early stage -- enjoys bipartisan support from key appropriators.
The same is true for the science office, which would receive a boost in the House measure from last year's record funding level of $5.35 billion to $5.4 billion. The office oversees 10 of the national laboratories.
The fossil fuel budget would increase by $13 million to $645 million under the House plan.
The bill would also provide $150 million in funding to revive the Yucca Mountain site, would restore funding for the Mixed Oxide Fuel Fabrication Facility and would increase spending for DOE's nuclear office and nuclear weapons security programs (E&E Daily, March 23).
House appropriators proposed to restore funding for DOE's fusion programs to $450 million, more than $50 million above President Obama's request. Proposed funding cuts to the fusion spending were a sticking point in multiple DOE budget hearings.Flint relief sparks accusations
The Flint debate erupted with an amendment from Rep. Rosa DeLauro (D-Conn.) to provide aid to help the city recover from its lead-contaminated water crisis. The provision sparked outrage from Republican members, with one lawmaker calling the move a "publicity stunt."
The amendment would have tacked on Michigan Democratic Rep. Dan Kildee's H.R. 4479 to the spending bill. That legislation would set aside nearly $800 million for the city's recovery, including funds for lead pipe removal and health services to alleviate the effects of the neurotoxin. The committee rejected the provision by voice vote.
The majority, chiding DeLauro, noted that the energy and water spending legislation does not appropriate funds to U.S. EPA, the Department of Health and Human Services, or other federal agencies involved in the city's recovery efforts.
"I urge this committee to resist playing the gotcha game and vote no on this amendment that is not related to the energy and water bill," said subcommittee Chairman Mike Simpson (R-Idaho).
Democrats shot back. Agriculture Subcommittee ranking member Sam Farr (D-Calif.) accused the GOP of placing a double standard by allowing operational and policy changes to California's water projects as the state battles drought but refusing to address Flint's water crisis in water legislation.
"Let's stop being so partisan in trying to solve emergency crises," he said.
Rep. Betty McCollum of Minnesota, top Democrat for the Appropriations subcommittee that funds EPA, said she had no assurance that her spending bill would have the ability to include funds for Flint.
The Appropriations Committee has yet to announce the spending cap for the Interior, Environment and Related Agencies fiscal 2017 appropriations bill.
"The reason why I'm in support of this amendment today is because I don't know how much money is going to be in the Interior account tomorrow," she said.
McCollum added that committee leaders had not put an emergency supplemental bill for Flint on the agenda.
"Maybe I should just wait, keep my fingers crossed if there's enough money for wildland fires, for our park maintenance backlog, to do what we need to do to keep species off the endangered species list, oh, and to do what we need to do for all of our communities' drinking water, and then maybe we'll have a little something left over for Flint," she said.
Rogers said the so-called 302(b) allocations for each spending bill were irrelevant if the Flint aid was designated as emergency spending.
McCollum then asked Rogers if he would support such an emergency bill for the Michigan city in the Interior-EPA spending bill. He avoided an answer.
"I yield back," Rogers responded.
Rep. John Abney Culberson (R-Texas) questioned the $765 million for Flint that appropriators would need to pull "out of thin air."
"I urge members to vote against it as a publicity stunt, quite frankly," he said, to groans from Democrats. "It's not the right time or place."Riders
Appropriators also rejected an amendment from Kaptur that would have removed controversial riders from the bill -- including language to block funding for implementation of a national ocean policy, stop the administration's water jurisdiction rule, bar any changes in the definition of "fill material" for Clean Water Act permits and prevent regulations against possessing a firearm on Army Corps lands.
"Any one of those provisions could threaten the entire bill," said Kaptur. "These riders really don't belong in an appropriations bill."
Many of the riders have strong support. Rogers, for example, said the fill language was necessary to avoid regulatory overreach. Changing the definition could restrict dredge-and-fill permits for activities like mining, a big economic driver in Rogers' district.
"It is critical that Congress protect against these overly burdensome rules and requirements," Rogers said.Allocations
The committee approved 302(b) spending caps totaling $144.7 billion for four Appropriations subcommittees by voice vote, falling short of allocations needed for all 12 spending bills.
The panel assigned the Agriculture, Rural Development, and Food and Drug Administration Subcommittee $21.3 billion in fiscal 2017 discretionary spending. It did so after passing the spending bill for food and agriculture (See related story).
The committee capped the Energy and Water Development Subcommittee's discretionary spending at $37.4 billion. It allocated $4.4 billion for legislative branch issues, with $3.5 billion for the House. Members have the Military Construction, Veterans Affairs and Related Agencies Subcommittee set at $81.5 billion.Senate action
The Senate will likely take up its $37.5 billion version of the energy and water spending bill later today. Leaders there are planning to require 60 votes to attach any amendments to the measure in a bid to ensure bipartisan backing.
Senate Minority Whip Dick Durbin (D-Ill.) said Republicans want "bragging rights" for moving spending bills and, as a result, will try to keep contentious riders off.
President Obama "won't tolerate any poison bill riders; he'll veto the bill," said Durbin. "As long as he is our backstop, you will have good-conduct medals being given out all around."
Lawmakers had yet to file amendments yesterday. Most senators seemed preoccupied with completing work on a broader energy policy bill that will likely pass this morning.
Sen. Joe Manchin (D-W.Va.) said he might propose amendments to the Senate spending bill aimed at "creating incentive investments in coal country, especially West Virginia."
Manchin said he wanted to make sure that whatever he offers has a "realistic chance" of getting through the House but had yet to settle on specifics.
Sen. Debbie Stabenow (D-Mich.) yesterday ruled out adding aid for the city of Flint to the spending bill. The senator said she is still working on finding a vehicle for the money, after agreeing to drop her push for $220 million in emergency funding in the energy bill.
Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who also chairs the Senate Appropriations subcommittee with jurisdiction over EPA, was skeptical that her spending bill could serve as the vehicle for Flint aid but said it could address some related policy issues.
"I don't know; either pieces of it or a water infrastructure fix could be on it," Murkowski said in an interview yesterday. "I think it's fair to say that you can't rule things like that out. We're just now rolling up our sleeves on this."
Stabenow and several other senators are also due to roll out a broad bill on lead policy later today that will aim to authorize about $70 billion over the next 10 years in tax breaks, loans and grants for water infrastructure and relief programs. Stabenow said the bill is policy-focused and will not be a vehicle for carrying emergency aid.
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Committee Approves $37.4 Billion Energy, Water Bill
Apr 20, 2016 | BNA Daily Environment Report
By Ari Natter
The House Appropriations Committee voted today to approve a $37.4 billion energy and water appropriations bill that would block the Clean Water Rule, among other policy riders.
The draft 2017 Energy and Water Development Appropriation bill was approved by a voice vote after the committee voted to adopt a manger's amendment making technical changes. The manger's amendment was approved by voice vote.
The underlying bill would provide nearly $30 billion for the Energy Department, $6 billion for the Army Corps of Engineers, and $1.1 billion for the Department of Interior. The legislation also funds independent agencies such as the Nuclear Regulatory Commission and the Federal Energy Regulatory Commission.
Within the DOE, the bill would appropriate $1.8 billion for the Office of Energy Efficiency and Renewable Energy, more than $1 billion for Nuclear Energy, $645 million for fossil energy research and development programs, and nearly $306 million for the “Advanced Research Projects Agency—Energy,” according to a committee bill summary.
The legislation would also provide $150 million to the Department of Energy and $20 million for the Nuclear Regulatory Commission to continue work on the Yucca Mountain nuclear waste repository opposed by the Obama administration.
In addition, the legislation would prohibit funds from being used for implementation of the Clean Water Rule (RIN 2040-AF30), which seeks to clarify which tributaries and wetlands are subject to Clean Water Act requirements and “restricts the application of the Clean Water Act in certain agricultural areas, including farm ponds and irrigation ditches,” according to the summary (71 DEN A-11, 4/13/16).
The bill also prohibits any changes to the definition of “fill material” and “discharge of fill material” for the purposes of the Clean Water Act, a move supported by organizations representing mining companies such as Peabody Energy Corp. and Alpha Natural Resources Inc.
The committee's passage of the bill comes as the Senate is expected to take up its $37.5 billion version of the legislation (H.R. 2028) as soon as April 20 (73 DEN A-1, 4/15/16).
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800448&vname=dennotallissues&fn=87800448&jd=87800448
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Amid Lofty Campaign Rhetoric, Senate Moves on Modest Energy Bill
Apr 20, 2016 | Politico Pro
By Nick Juliano, Andrew Restuccia, and Elana Schor
The difference between campaigning and governing was on stark display this week, as the Senate prepared to give bipartisan support to a modest energy bill that falls well short of the lofty proposals candidates are touting on the presidential campaign trail.
As Hillary Clinton and Sen. Bernie Sanders battle over who will do more to shut down fracking, the Senate bill would increase demand for fracked gas by promoting liquefied natural gas exports. While Sen. Ted Cruz and Donald Trump promise to eliminate reams of environmental regulations, the Senate bill would modestly trim some red tape while leaving the Obama administration’s most ambitious rules untouched. (Indeed, Democratic supporters say the bill helps lay the groundwork for the transition away from carbon-intensive fuels those rules are meant to catalyze.)
"I haven't been following every statement out of the presidential campaign, but what I have learned doing this job is that incremental progress really matters,” said Sen. Martin Heinrich (D-N.M.), a member of the Energy and Natural Resources Committee who supported the bill. “Having come here as somebody who cares deeply about climate change, I'm not going to get my way all the time, and we have to be able to make compromises to be able to govern and create certainty and have change."
Expected passage of the energy bill, S. 2012, at a 10 a.m. vote Wednesday would mark a significant milestone after years of false starts and near misses. Neither Sanders nor Cruz voted on amendments to the bill Tuesday, and it is unclear if they will be there for the vote on final passage, following the hard-fought New York primary. But both likely would oppose it.
The bill is the first standalone energy legislation to pass the upper chamber since 2007, although President Barack Obama’s 2009 economic stimulus law included sweeping clean energy provisions, and last year’s omnibus budget deal made key changes to energy policy by ending the ban on crude oil exports and phasing out wind and solar tax credits.
The energy bill was crafted by Senate Energy and Natural Resources ChairwomanLisa Murkowski (R-Alaska) in close coordination with Ranking Member Maria Cantwell (D-Wash.) and other members from both sides of the aisle. It includes many provisions from the energy efficiency bills Sens. Jeanne Shaheen (D-N.H.) and Rob Portman (R-Ohio) pushed for several years, along with provisions to expedite federal permit reviews for LNG export projects, bolster energy infrastructure and repeal some outdated or redundant regulations.
Scott Segal, director of the industry-backed Electric Reliability Coordinating Council, said expected passage of the energy bill shows there is still an appetite in Congress for bipartisan energy legislation, even if the product may not match the presidential candidates' promises.
"It's very rare that the Congress can appear to be the adult in the room, but in the case of energy legislation, Congress has shown this is how you do it. You put people in a room, you negotiate about what is needed in the near term, what policies have sufficient political consensus, and then you proceed," Segal said. "The contrast is in the presidential campaign where there is a mighty bushel of unrealistic assumptions, and that’s too bad.”
The energy bill has little in common with energy or climate bills introduced by the two remaining presidential candidates from the Senate. Sanders in December introduced S. 2399, which would have imposed a steadily rising carbon tax with targeted rebates. Josh Miller-Lewis, a spokesman in the Vermont independent’s Senate office, criticized the energy bill Tuesday.
"Sen. Sanders believes any energy bill passed by Congress should make fighting climate change a national priority,” Miller-Lewis said in an email. “Rather than aggressively transitioning to energy efficiency and sustainable energy, this legislation incentives fossil fuel production, including expediting the process to export fracked natural gas."
Sanders pressed Clinton on whether she would embrace a carbon tax during last week’s Democratic debate in New York. She responded by promising to build on President Barack Obama’s record and stressed the importance of electing a Democrat who could appoint a Supreme Court justice likely to support the Clean Power Plan.
“I don't take a back seat to your legislation that you've introduced that you haven't been able to get passed,” Clinton said at the debate. “I want to do what we can do to actually make progress in dealing with the crisis. That's exactly what I have proposed.”
Former Sen. Mary Landrieu, a Clinton supporter and former energy chair, lauded the Senate energy bill as “a very positive signal for the country.” Clinton is "capable of holding more middle ground on this" if elected, added Landrieu, now a senior policy adviser to Van Ness Feldman.
But rather than reach to the middle, Clinton is clashing with Sanders over who can take a firmer hand to limit the spread of fracking. Sanders is pushing for a national ban on the oil and gas extraction tactic, but Clinton promises to get more done via strict regulations that the executive branch has the authority to impose on private as well as public lands.
The Senate bill would require DOE to approve or reject proposed liquefied natural gas export facilities within 45 days after their environmental reviews are completed. The same liberal environmentalists breaking for Sanders in Tuesday's New York primary slam that provision — shaped by a lengthy bipartisan negotiation with the Obama administration — as an intolerable promotion of new fracking.
But the fossil-fuel industry cheered the provision's passage. "Project developers should know that they have a rock-solid timeframe to work with, and that certainty is crucial for these large, complex, capital-intensive investments in the U.S. economy," Charlie Riedl, executive director of the Center for Liquefied Natural Gas, said in a statement.
Cruz, meanwhile, has introduced his own energy bill that goes far beyond expediting LNG exports in its promotion of fossil fuels. The Texas Republican’s bill,S. 791, would expand offshore oil drilling, eliminate EPA climate change and water rules and give states sole control over how to regulate fracking, among other provisions. Cruz’s campaign and Senate office did not respond to a request for comment.
Energy bill supporters worked throughout the process to steer clear of controversial items such as EPA’s climate rules or aggressive renewable energy mandates. Still, the bill stalled for months over procedural disputes related to the drinking water crisis in Flint, Mich. and offshore drilling before senators ultimately agreed to set those disputes aside.
"It's a good step, but I think the energy markets in general — solutions, products, all these things — are just going to continue to change. So, us keeping pace with that is going to be important,” Sen. Maria Cantwell said. “I think getting one bill done shows you can get another one done."
Sen. Ron Wyden, the ranking member of the Senate Finance Committee and a former energy chairman, said the bill is a first step that should be built on with further reforms, such as his proposal to overhaul various energy tax subsidies.
"I see this bill as setting the table for sort of the next part of the debate," the Oregon Democrat said Tuesday.
Heinrich said the bill deserved to be praised despite not embodying the type of comprehensive climate policy that Congress tried and failed to pass in the early days of the Obama administration.
"Even though this is not Waxman-Markey, it's not cap-and-trade, it has really important climate provisions like Shaheen-Portman. It has investments in storage that are going to totally change how we produce and consume energy in a distributed instead of centralized fashion. It has implications for transmission,” he said. “So, this is not small potatoes and we need to realize just how important it is."
The incremental approach did not sit well with upstart green group 350.org, which blasted the bill for its support of LNG exports and noted in a statement the incongruence with the intensifying debate over fracking in the presidential campaign.
“This bill is the VHS tape of climate policy: tolerable in the 80s or 90s, but not in tune with the scientific realities of 2016,” 350.org’s U.S. Policy Director Jason Kowalski said in a statement. “We need Congress to get with the times and stop writing bills that prop up the fossil fuel industry that’s wrecking our climate.”
On the other end of the ideological spectrum, Heritage Action for America also opposed the bill, and warned that it would deduct points on its annual scorecard from any senators that supported the bill. Murkowski scores a 37 percent on the group’s scorecard; Cruz scores a perfect 100 percent.
The bill drew support from a wide range of outside interests as well, including the U.S. Chamber of Commerce, Alliance to Save Energy and International Brotherhood of Electrical Workers.
Lawmakers now have to reconcile the differences in the Senate bill and a House version, H.R. 8, which cleared the lower chamber with mostly Republican votes and has drawn a veto threat from the White House.
Murkowski said she has spoken to House Energy and Commerce Chairman Fred Upton (R-Mich.) about reconciling the bills and that the two are eager to get started.
“I think we all know that daylight’s a wastin’ when it comes to legislation,” Murkowski told POLITICO Tuesday. “So the sooner we get moving the better.”
https://www.politicopro.com/energy/story/2016/04/energy-bill-clears-senate-108165
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Senate Revives Its Energy Reform Bill
Apr 19, 2016 | The Hill - E2 Wire
By Devin Henry
The Senate resumed debating its energy reform package on Tuesday afternoon after it stalled months ago amid a debate over aid for Flint, Mich., a city that has been suffering from lead contamination in its drinking water.
The bill, which would be the first major energy reform law since 2007, includes a host of policy changes aimed at updating federal policies. It touches on issues such as electric grid modernization, energy efficiency upgrades and natural gas exports, although it avoids the most controversial Democratic or Republican proposals.
“This is important for a host of different reasons,” Sen. Lisa Murkowski (R-Alaska), the Energy and Natural Resources Committee chairwoman and lead author of the bill, said in a Tuesday floor speech.
“Moving forward with this act will help America produce more energy, and at the same time it will help Americans save more money and save energy with all of the energy efficiency provisions. … It will strengthen our status as the best innovator in the world, and it will bring us another step closer to becoming a global energy superpower.”
Leadership originally brought the bill to the floor in January, hoping for an easy, bipartisan vote on passage.
But Democrats rallied around a plan to add money for Flint to the bill and blocked debate on a package that didn’t include it.
For more than two months, members worked to include the provision in the legislation and overcome a hold placed on the package by Sen. Mike Lee (R-Utah). But last week, Democrats agreed to drop the Flint provision and move the package along without it.
That process started on Tuesday, when the Senate approved 29 non-controversial amendments on a voice vote. Members considered another eight amendments on Tuesday afternoon, including a measure to include energy efficiency into federal mortgage valuations and another to tweak how the government spells oil from the Strategic Petroleum Reserve. A final passage vote is expected on Wednesday morning.
“Hopefully, today we will see the last day of debate on our energy bill,” Murkowski said, calling it a “broad, bipartisan and, some would suggest, long-stalled energy bill.”
“We need to pass this bill,” Sen. Maria Cantwell (D-Wash.), the ranking member on the energy committee, added. “That’s why we’ve been so persistent.”
http://thehill.com/policy/energy-environment/276854-senate-revives-its-energy-reform-bill
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In Reply To EPA, Opponents Say Agency Lacks 'Clear' Authority For ESPS
Apr 19, 2016 | InsideEPA
By Lee Logan
State and industry opponents of EPA's existing power plant greenhouse gas standards are rejecting the agency's arguments in support of the rule, charging in just-filed court briefs that it lacks “clear congressional authorization” for the “novel” regulation.
Supreme Court precedent “establishes that, in extraordinary cases like this one, agencies must point to clear statutory authorization, not merely allege vague text. The Supreme Court has instructed that it 'expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,'” says an April 15 reply brief on “core” legal issues from a coalition of 27 states and state agencies, as well as a wide variety of utility, coal and business associations in the case West Virginia, et al. v. EPA, et al., in the U.S. Court of Appeals for the District of Columbia Circuit.
The opponents of EPA's existing source performance standards (ESPS) charge that the rule has such “vast” significance, as evidenced by its unveiling by President Obama in the White House's East Room, as well as administration claims that it will “aggressively transform” the electric sector.
“EPA cannot now claim the Rule is of little moment,” the brief says. “In truth, the Rule will have sweeping practical significance, far beyond anything the agency has ever sought to achieve under the narrow and rarely used section 111(d)” of the Clean Air Act.
Other “core” claims from state and industry critics are that the ESPS unlawfully bases its targets on “generation shifting” from fossil plants to zero-emission sources, that it lacks threshold air act authority to regulate plants' GHG emissions, and the agency improperly intrudes on state authority.
In a separate April 15 reply brief, the critics raise a number of “record-based and procedural issues” that they argue show that the ESPS is unlawful even if EPA successfully defends against the “core” arguments.
Among those issues are claims that EPA failed to demonstrate that its GHG reduction targets are achievable; that it did not consider “important aspects” of its rule regarding reliability or existing low-emitting sources and issued a flawed cost consideration; and that it did not explain its failure to address a range of state-specific concerns.
The briefs offer a reply to EPA and its supporters' defense of the ESPS in a series of briefs filed earlier this month. For example, the agency cited the high court's 2011 ruling in American Electric Power (AEP) v. EPA to argue that it not only has authority to regulate power plants' GHGs, but wide flexibility in crafting a rule to curb such emissions.
“The Court concluded that Congress had 'delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants,'” the agency said in its March 28 brief.
Additionally, a group of states, environmental organizations, “clean” utilities and renewable energy backerssupported EPA in separate filings.
Briefing in the D.C. Circuit suit is slated to conclude April 22. Afterward, the court will hear oral argument June 2 and perhaps June 3, with a ruling expected this fall. Any ruling is expected to be quickly appealed to the high court.
'Bear The Weight'
The state and industry critics in the new briefs fault EPA's heavy reliance on AEP to defend the ESPS.
“AEP does not bear the weight EPA places on it,” the brief says. “While AEP referred to EPA’s authority to regulate carbon dioxide under section 111(d) -- assuming EPA did not trigger one of that section’s exclusions -- the Court did not determine how EPA may regulate.”
Citing a portion of the high court's 2007 ruling in Massachusetts v. EPA -- which determined that CO2 can be regulated as a pollutant under the air act -- the critics argue “the Court warned that EPA did not have 'a roving license to ignore the statutory text’ and must 'exercise discretion within defined statutory limits.' Furthermore, the Supreme Court nowhere suggested that EPA had expertise beyond its past focus on source-specific emission controls or could make judgments on numerous aspects of the American power system.”
The arguments focus on what is expected to be a central issue in the suit -- whether EPA's can lawfully base the rule's GHG targets on actions taken “beyond the fence” of a regulated power plant, or whether such measures must be limited to source-specific controls.
Underscoring their previous arguments, the critics argue that the source-based “limitation is critical: without it, EPA’s authority would be virtually unbounded. Under EPA’s reading, nearly anything could qualify as part of the best system of emission reduction.”
The critics also argue that EPA “redefines the source” that is regulated by arguing that the “owner or operator” of a plant can take a range of actions to reduce emissions, such as contracting with renewable facilities to provide power in lieu of fossil generation.
Further, the opponents say the ESPS is unprecedented because it “departs from EPA’s prior practice by setting rates that can be met only by shutting down certain sources and constructing new, unregulated facilities -- a fact strongly suggesting the Rule exceeds the statute’s bounds.”
And they argue the agency's reliance on the vacated Bush-era Clean Air Mercury Rule -- which would have regulated plants' mercury emissions under section 111 and based targets on a cap-and-trade program -- is misplaced.
Unlike the ESPS “the Mercury Rule cap-and-trade program was 'based on control technology available in the relevant timeframe' that could be installed at each regulated source. These 'technologies' were sufficient to support the Mercury Rule’s performance standards '[e]ven assuming, arguendo, that the term ‘standard of performance’ prohibited an emissions cap and allowance trading program,” the brief says.
Section 112 'Exclusion'
Additionally, a collection of companies connected to the coal mining sector that intervened on petitioners' behalf used their April 15 reply brief largely to expand on arguments that EPA lacks threshold authority under section 111(d) of the Clean Air Act to issue the ESPS because the agency already regulates the power sector under section 112 of the air law, and that such dual regulation is prohibited.
The issue is complicated because House and Senate amendments to section 111(d) were never reconciled in conference before the 1990 air act amendments were enacted. The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section.
The House amendment could be read as prohibiting the rule because it focuses on source categories, not pollutants. But EPA in the final ESPS interpreted the House amendment to only exclude the regulation of hazardous air pollutants under section 111(d) if already regulated under section 112, but not to preclude the regulation of other pollutants.
The coal intervenors' brief argues that the “section 112 exclusion” is not ambiguous, and thus EPA's interpretation of the provision is not subject to deference from the courts.
“EPA would rewrite the Section 112 Exclusion to focus on pollutants rather than source categories. EPA’s revisionism fails, ” the intervenors' brief says. “EPA’s interpretation would erase an entire phrase from the statute.”
Further, the coal-related firms argue that EPA misinterprets a part of AEP in arguing that the ruling “understood the regulatory bar to be pollutant- specific.”
Instead, the firms argue the ruling “identifies and qualifies the stationary sources to which the statute refers. . . . EPA is putting words in the Supreme Court's mouth.”
In addition to arguments regarding the 111/112 issue, the intervenors also reiterate claims that the ESPS violates the 10th Amendment to the Constitution by “commandeering” states to implement the rule.
http://insideepa.com/daily-news/reply-epa-opponents-say-agency-lacks-clear-authority-esps
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Benicia Delays Decision on Oil Trains
Apr 19, 2016 | The Sacramento Bee
By Tony Bizjak
The city of Benicia on Tuesday postponed until September any decision on a local oil company’s controversial plan to run half-mile-long oil trains through Northern California to its bay side refinery.
The Valero Refining Co. for several years has been seeking city OK to build a rail track and oil-loading station at its Benicia refinery, which would allow it to begin receiving oil shipments on two 50-car trains a day. The refinery currently gets crude oil via marine vessels and pipelines.
The trains, carrying crude from north American oil fields, would travel through Roseville, Sacramento, Davis and other California cities en route to Benicia. Those potential transports have alarmed leaders of many rail-line communities as well as environmentalists who cite concerns about derailments, spills and fires.
A Benicia city environmental impact report concluded that the trains would pose significant health and safety risks along the rail line that cannot be mitigated or eliminated. The reported included an analysis though that suggests a harmful oil spill would be a rare event.
The concerns, heightened by several oil train derailments and explosions nationally, have thrown a spotlight on the Benicia project, turning the little city into a central battleground in the national crude-by-rail debate.
The city’s decision Tuesday to wait a few months came at the suggestion of several council members who say they are confused by dueling legal opinions – from city attorneys, Valero, the state Attorney General, and others – about what rights the city has to require environmental safety measures, and whether the city can even consider rail risks when voting on the project.
Valero officials had requested the city take a time out to allow the oil company to ask federal officials to rule on those issues.
“I need more information,” councilman Alan Schwartzman said in agreeing to give Valero that opportunity. “I need this to move forward.”
Mayor Elizabeth Patterson opposed the continuance, saying she was ready to vote now after four nights of hearings, including citizen testimony, much of it opposed to the project.
“Is that what we want to do, wear out the public?” she asked. “We have other things we want to do in this city. I want to move on.”
She also said she did not like the fact that the city was letting Valero frame the debate by taking the matter to another body.
Much of that debate recently has centered around federal law. Valero officials and a contract attorney hired by Benicia point out that interstate commerce law preempts cities and states from having any say over rail transport, and prohibits cities from taking actions that even indirectly infringe on railroad company’s ability to move goods. They say that means the city cannot even consider environmental risks during transport of the oil when making its decision.
The Benicia Planning Commission in February rejected that interpretation, and voted to deny Valero’s permit request, citing concerns about spills on rail lines, and environmental concerns, including air pollution, involving Valero’s planned unloading operations on its Valero refinery site. Valero appealed that decision to the City Council.
State Attorney General Kamala Harris weighed in last week in a letter to Benicia, arguing that Benicia is obligated to review environmental hazards when making the decision, and pointing out that federal rail preemption rules do not entirely apply in this matter because the applicant, Valero, is not a railroad company.
Valero spokesman Chris Howe said his company is pleased with the council decision to hold off. “We think it is helpful for the council to be best informed on this topic before they make a final decision on the project.”
Valero officials said this week they plan to submit a request within a month to the federal Surface Transportation Board for a ruling on the federal preemption issue. The STB is commissioned by Congress to, among other things, issue rulings in rail disputes.
STB officials declined comment this week on the Benicia matter. An STB order has legal standing, but can be challenged in court. Several Benicia officials said they have talked recently with STB representatives and are hoping that the board will issue a ruling by September.
http://www.sacbee.com/news/local/transportation/article72799142.html#storylink=cpy
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Apr 19, 2016 | Politico
By Isaac Arnsdorf
...ON THE HILL:
- The Grocery Manufacturers Association kicked off its two-day conference today with President and CEO Pamela G. Bailey's call for the Senate to reach a compromise to preempt state GMO labeling mandates.
- The Food Marketing Institute also has a fly-in with the National Grocers Association and the Food Industry Association Executives . More than 200 executives from the supermarket industry will meet with congressional offices on supporting legislation (S. 2217/H.R. 2017) modifying "menu labeling" requirements that apply to a grocery store setting; a national standard for the labeling of GMO products; EMV migration/payments security; and the impact of the overtime rule on associates and store operations.
- The National Council of Chain Restaurants is hosting supply chain executives from Wendy's, Arby's, White Castle, TGI Fridays and others for meetings with lawmakers today about the Renewable Fuel Standard ethanol mandate and food commodity costs.
- The U.S. House of Representatives Building Trades Caucus launches this afternoon, featuring North America's Building Trades Unions President Sean McGarvey, Donald Norcross (D-N.J.), and David McKinley (R-W.Va.).
- The American Chemistry Council and 214 other organizations sent every congressional office a letter backing H.R. 4775, the Ozone Standards Implementation Act of 2016, to delay implementation from the EPA's rule.
- Local leaders of the Laborers' International Union of North America , predominantly representing construction workers, are on the Hill today to discuss the Davis-Bacon Act, "which protects workers and taxpayers by preventing tax money from being used to drive down living and construction standards on federal projects"; use of natural gas; repealing the "Cadillac tax"; blocking premium increases for the Pension Benefit Guarantee Corporation; passing comprehensive immigration reform and opposing construction industry guest worker programs; and investment in water and transportation infrastructure. LiUNA is a major backer of Hillary Clinton's campaign.
- Sen. John Cornyn (R-Texas), U.S. Deputy Attorney General Sally Yates and John Wetzel, secretary of the Pennsylvania Department of Corrections, are speaking today to a summit of criminal justice and behavioral health professionals about mental health in jails.
- Monday, Alexandra Dapolito Dunn, executive director and general counsel, Environmental Council of the States; Linda Kelly, senior vice president and general counsel, National Association of Manufacturers; Rachel Lattimore, senior vice president, general counsel and secretary, CropLife America; Stacy Linden, vice president, general counsel and corporate secretary, American Petroleum Institute; and Ellen Steen, general counsel and secretary, American Farm Bureau Federation, spoke on a Women's Bar Association panel called "Breaking the Glass Ceiling in Environmental Organizations: Women General Counsel of Trade Associations," moderated by Kirsten Nathanson of Crowell & Moring.
OYE: The Latino Victory Fund, cofounded by actress Eva Longoria and DNC Finance Chair Henry Munoz , will host former Nevada Attorney General Catherine Cortez Masto tonight for a fundraiser to help her bid for the open Nevada Senate seat. The co-chairs for the fundraiser are Obama White House alum Stephanie Valencia, Oscar Ramirez from the Podesta Group (who also serves on the Latino Victory Fund's National Committee), and Catherine Pino and Ingrid Duran, cofounders of D&P Creative Strategies.
SHUSTER BOOSTER: The American Action Network plans to spend $200,000 next week to help Rep. Bill Shuster (R-Pa.) in his tougher-than-expected primary race against retired Coast Guard Captain and tea-party backed candidate Art Halvorson. POLITICO's Jake Sherman and Anna Palmer report AAN will spend nearly $150,000 on a TV ad in Shuster's district, in addition to digital advertisements and get-out-the-vote phone calls. Shuster has already spent $500,000 on TV ads, and has $1.3 million in the bank, while Halvorson has just $31,000. Halvorson blasted Shuster in a debate Saturday over his lobbying ties and relationship with top airline lobbyist Shelly Rubino of Airlines for America. http://politi.co/1Nyh5aS
BIG TRUCKS, BIG MONEY: The Huffington Post's Michael McAuliff reports on trucking industry lobbying against tougher safety rules as injuries and crashes rise. Since 2012, members of the Coalition for Efficient and Responsible Trucking have donated more than $13 million to federal election campaigns, and spent more than $80 million hiring lobbyists. The American Trucking Associations spent $2.4 million on elections and $8 million on lobbying, and the Owner-Operator Independent Drivers Associatio n spent $790,000 on campaigns and $3.5 million on lobbying. The grand total comes to $20 million each year. http://huff.to/268bHXm
UNCONVENTIONAL: Some liberal groups, including ColorOfChange and Free Press Action Fund, are calling on Google and Microsoft to cease any sponsorship of the Republican National Convention in Cleveland, reports Pro Technology's Tony Romm. The groups say supporting the convention helps provide a stage for GOP front-runner Donald Trump and what they say is his "hateful and violent message." The groups sent letters to both companies last week, with Bend the Arc Jewish Action, Care2, Courage Campaign, CREDO Action and SumOfUs also signing on. Google and Microsoft have said they will have some presence at the Republican convention, but have yet to give details. http://politi.co/1pcucIH
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Petitioners: EPA Conformity Guide Erodes Safeguards
Apr 20, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and community organizations led by the Sierra Club intend to ask a federal appeals court to review whether updated Environmental Protection Agency guidance illegally weakens public health and environmental protections under the Clean Air Act (Sierra Club v. EPA, D.C. Cir., No. 16-1097,statement filed 4/18/16).
The environmental petitioners, in an April 18 statement of issues, highlighted substantive and procedural arguments they intend to raise in litigation over the EPA's 2015 update to a guidance document on conducting quantitative “hot-spot” analyses for highway and transit projects in nonattainment and maintenance areas for particulate matter. That guidance document describes transportation conformity requirements for that analysis and offers states and local air quality officials technical information on how to model estimated particulate matter emissions from new projects.
The 2015 update to the guidance included several revisions that the EPA said were needed to reflect new tools for modeling vehicle emissions. However, the environmental petitioners alleged in their filing that the revised conformity procedures outlined in the guidance are unlawful because they allow particulate matter concentrations from new and expanded transportation projects that exceed the national ambient air quality standards for that pollutant.
Robert Yuhnke, an attorney representing the Sierra Club and other petitioners, told Bloomberg BNA in March that the updated guidance allows for transportation projects that have the potential of as many as eight days in exceedance of a national air quality standard, compared to only three days under the previous guidance (52 DEN A-8, 3/17/16).
Update Made Without Notice
The environmental petitioners also alleged that the 2015 guidance was promulgated in violation of the Administrative Procedure Act. The guidance was posted to the EPA's website but was not officially published in the Federal Register and was not subject to a notice and comment period.
“Publication of such revised conformity procedures by posting on an EPA website without prior notice, or an opportunity to submit information or arguments, deprived petitioners and their members of their right to Due Process,” the environmental groups alleged.
The petitioners also alleged that the revised guidance did not lawfully amend the previous guidance, which was promulgated following a public notice and comment process. That process gave the previous guidance the “force and effect of law attributed to legislative rules,” so any amendments to that guidance must be issued in a manner consistent with the rulemaking procedures required under the Administrative Procedure Act, the petitioners alleged.
The U.S. Court of Appeals for the District of Columbia Circuit has not yet established a briefing format for the litigation. The EPA requested that the court provide at least 60 days for the federal government to prepare its reply brief after the environmental petitioners file their initial brief.
Sue Si Chen, a trial attorney at the U.S. Justice Department, is representing the EPA. Yuhnke is the lead attorney for the Sierra Club, Citizens for a Greater Denver, the Cross Community Coalition and the Elyria-Swansea Neighborhood Association.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800430&vname=dennotallissues&fn=87800430&jd=87800430
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Senators Criticize EPA Budget Cuts to Water Programs
Apr 20, 2016 | BNA Daily Environment Report
By Brian Dabbs
Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) lashed out at Environment Protection Agency Administrator Gina McCarthy at an April 19 budget hearing, claiming the agency's “activist” agenda on climate change jeopardizes its other important work.
Other committee Republicans joined the criticism of McCarthy, accusing her agency of slashing American jobs in coal country and overstepping constitutional bounds with the Clean Water Rule and Clean Power Plan. Inhofe, however, set the tone of the hearing in his opening statement about EPA's alleged deviation from its core functions.
“The President's budget would cut $414 million from the Clean Water State Revolving Fund which helps these very same states and local communities pay for improvements to sewer and waste water treatment systems,” Inhofe said. “As we have seen from the Gold King Mine blowout and the contaminated drinking water in Flint, EPA has at times been distracted from fulfilling its core missions due to the Obama Administration's single-minded focus on remaking EPA into an agency that regulates climate change and the energy sector.”
The White House proposed $8.27 billion for the EPA's fiscal year 2017 funding (27 DEN B-1, 2/10/16).
Democrats Join Fray
Sen. Barbara Boxer (D-Calif.), the committee's ranking member and often a supporter of EPA policies, criticized cuts in the Obama administration's proposal for the Drinking Water State Revolving Fund.
“Our nation's water infrastructure needs far outstrip the funding available, and the proposed $257 million cut to the State Revolving Funds will make this funding gap grow,” Boxer said.
Sen. Ben Cardin (D-Md.) took a sharper tone on the revolving fund decreases.
“That does not seem like the commitment to modernize our water infrastructure,” Cardin said. “There are creative ways that you can find to help us improve our water infrastructure.”
Boxer, however, blamed the proposal's shortfalls on budgetary constraints.
Significant Budget Cuts Imposed
“We need to remember that seven years ago, EPA's budget was $10.3 billion, and the FY 2017 budget request that we will discuss today is a 20 percent cut from that level,” Boxer said. “EPA is being asked to do more with less, and we should keep that in mind.”
McCarthy echoed the concerns over constraints.
“We have to respect the levels that were established in the bipartisan budget agreement, and our choice was how do we use the money that's allocated to us in the best way that we can,” she said. “There is no question that we have to have a larger conversation about how we fund infrastructure.”
Republicans Continue Gold King Assault
Mathy Stanislaus, assistant administrator at the Environment Protection Agency, will testify at a Senate Indian Affairs Committee field hearing on the Gold King Mine spill on April 22, McCarthy told the Senate Environment and Public Works Committee on April 19.
The pledge follows an April 13 Indian Affairs Committee subpoena to the EPA to force attendance by Stanislaus or McCarthy. Speaking to the EPW Committee, McCarthy dismissed the subpoena as unnecessary.
“There may be some confusion, but I was actually never invited to this hearing. Mathy Stanislaus was originally, and Mathy Stanislaus will be attending,” McCarthy said. “We did our best to communicate with your staff to let them know that we were happy to send somebody before the subpoena was issued. We failed to be able to have those calls and communications returned to us.” Bloomberg BNA obtained a copy of the letter, dated April 12, that offered to have Stanislaus and EPA Region 9 chief Jared Blumenfeld testify at the field hearing (72 DEN A-21, 4/14/16).
Barrasso Rails Against EPA
Still, Senate Indian Affairs Chairman John Barrasso (R-Wyo.) railed against what he said was EPA's reluctance to testify, as well as its poor response to the crisis.
“They need money for testing, and what EPA has offered in terms of technical support and long-term monitoring isn't nearly enough,” Barrasso said at the hearing. “The Senate Indian Affairs Committee has had to issue a subpoena, something that the Indian Affairs Committee hasn't had to do since the Jack Abramoff scandal. That puts you and the EPA in a very exclusive club.”
In an interview with Bloomberg BNA on April 19, Indian Affairs Committee member John McCain (R-Ariz.), followed suit, calling the EPA “arrogant” for its alleged reluctance to testify.
“I think they thought they could refuse and there would be no problem,” he told Bloomberg BNA. “Of course, it's just Native Americans, what do they care? It's disgraceful. If it had happened in a non-Indian territory, the reaction would have been a lot different.”
McCarthy: DOJ OK'd Power Plan Assistance
The EPA is requesting $235 million for climate activities, but only $50.5 billion of that is going to Clean Power Plan implementation, McCarthy said. Meanwhile, the Department of Justice has told the agency it is within its bounds to continue assistance to state CPP plans despite the Supreme Court stay on the rule.
“Clearly we are doing everything possible to consult with our attorneys and make sure we're being very respectful, but I am doing nothing that implements or enforces this rule consistent with the Supreme Court decision,” McCarthy said.
Sen. Roger Wicker (R-Miss.) pressed McCarthy to release DOJ written correspondence to the committee.
During the hearing, Inhofe and Sen. Deb Fischer (R-Neb.) also scolded McCarthy for alleged EPA violations of the Anti-Deficiency Act. The Government Accountability Office concluded the EPA contravened the statute in December through its use of social media activities (36 DEN A-2, 2/24/16)
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=87800443&vname=dennotallissues&fn=87800443&jd=87800443
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