Preview Newsletter
ACC AM 5/2/16
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(ACC Blog) Capito Demonstrates Commitment to Helping Emergency Responders
Apr 29, 2016 | American Chemistry Matters
By American Chemistry
Last night, Congress passed a resolution introduced by Senator Capito that recognizes the incredible work of the TRANSCAER® program in helping communities prepare and respond to a potential transportation incident involving hazardous materials. -
(ACC Mentioned) TPP & TTIP Bring Change Closer
May 2, 2016 | Lexology
By Squire Patton Boggs
Mega-regional agreements could reshape international trade in chemical products, say Carolyn Buller, head of the Chemicals practice, and Frank Samolis, leader of the Colombia/Chile country desk, at Squire Patton Boggs. -
(ACC Mentioned) Moolenaar, Lipinski Announce Congressional Chemistry Caucus
May 2, 2016 | Midland Daily News
U.S. Reps. John Moolenaar, R-Midland, and Daniel Lipinski, D-Ill. have announced the formation of the Congressional Chemistry Caucus. -
(ACC Mentioned) Congress Forms a Chemistry Club
May 2, 2016 | Chemical & Engineering News
By Jessica Morrison
Capitol Hill now has its own chemistry club—the Congressional Chemistry Caucus. -
(ACC Mentioned) Screening Method Could Make Chemical Risk Management Easier, Cheaper
May 2, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A new method to analyze and define chemical risk will make it easier and less expensive to manage potential risks, according researchers who have published their approach in the journal Risk Analysis. -
A Trilogy of TSCA Reform: These Viewpoints Urge Passage, Green Chemistry, Asbestos Provisions
Apr 29, 2016 | Bloomberg BNA
By Steve Gibb
Legislation to overhaul the 1976 Toxic Substances Control Act is moving ahead in Congress, and we are watching every step. -
EPA Guides Electric Utilities on Chemical Reporting Duties
May 2, 2016 | BNA Daily Environmental Report
By Pat Rizzuto
The Environmental Protection Agency has released a fact sheet to help electric utilities understand their obligations to report details on chemicals they manufacture. -
Camp Lejeune Bill Tries to Improve Benefits System
Apr 29, 2016 | E&E News PM
By Sam Pearson
The Department of Veterans Affairs would be required to provide medical care for illnesses linked to veterans' exposure to harmful chemicals at Camp Lejeune in North Carolina under legislation introduced yesterday. -
Clean Power Plan Opponents Want Two Days of Argument
May 2, 2016 | BNA Daily Environmental Report
By Andrew Childers
Opponents of the Clean Power Plan are asking a federal appellate court to schedule two days of arguments over the rule, but they were unable to reach consensus on which issues most deserved the judges' attention (West Virginia v. EPA, D.C. Cir., No. 15-1363, responses filed 4/28/16). -
EPA Says High Court 'Ambiguous' On Possible Delay Of ESPS Deadlines
Apr 29, 2016 | Inside EPA
By Lee Logan
EPA is pushing back against GOP calls to halt all work on its power plant greenhouse gas rule in light of the Supreme Court stay, arguing that the court's order is “ambiguous” on the issue of whether all of the rule's deadlines must be delayed if the rule survives legal challenge and that the issue will not be settled until that occurs. -
States Ask EPA for Help on Climate Rule Plans
Apr 29, 2016 | The Hill - E2 Wire
By Devin Henry
More than a dozen states have asked the Environmental Protection Agency (EPA) to give them more information on how to form implementation plans for the Obama administration’s climate rule for power plants. -
Study: US Oil Field Source of Global Uptick in Air Pollution
Apr 29, 2016 | The New York Times
By Associated Press
An oil and natural gas field in the western United States is largely responsible for a global uptick of the air pollutant ethane, according to a new study. -
Pipeline Explosion Injures Man in Pennsylvania
May 2, 2016 | BNA Daily Environmental Report
By Leslie A. Pappas
A natural gas pipeline exploded in a rural area outside Pittsburgh April 29, injuring one man and prompting an investigation by federal authorities. -
CSX Train Derails in Northeast Washington, Leaking Hazardous Chemicals and Disrupting Travel
May 1, 2016 | Washington Post
By Faiz Siddiqui, Luz Lazo, and Michael Smith
A CSX freight train derailed in Northeast Washington early Sunday, spilling hazardous chemicals along a busy rail corridor. The wreck stranded some residents away from their homes, forced the closure of a Metro station and snarled traffic as emergency personnel sought to contain the leaks and clear the wreckage. -
The Latest: Commuters to Be Impacted by Train Derailment
May 1, 2016 | The New York Times
By Associated Press
The Latest on a train derailment and hazardous material leak in Washington, D.C. -
Home Builders Ask D.C. Circuit To Scrap Ozone NAAQS
Apr 29, 2016 | Inside EPA
The National Association of Home Builders (NAHB) is backing calls for the U.S. Court of Appeals for the District of Columbia Circuit to scrap EPA's rule tightening its ozone air standard from 75 parts per billion (ppb) to 70 ppb, arguing that land-use restrictions stemming from the stricter limit will hurt the economy and NAHB's members.
Congressional Hearings - There are no clips to report at this time.
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(ACC Blog) Capito Demonstrates Commitment to Helping Emergency Responders
Apr 29, 2016 | American Chemistry Matters
By American Chemistry
Last night, Congress passed a resolution introduced by Senator Capito that recognizes the incredible work of the TRANSCAER® program in helping communities prepare and respond to a potential transportation incident involving hazardous materials.
While congressional resolutions can be fairly common, TRANSCAER is a truly unique program. Last year alone, the program helped more than 50,000 emergency responders through hands-on training, emergency planning assistance, support for community drills and exercises, technical information and reference, and training materials. The program has been going strong since 1986 and will be celebrating its 30thanniversary this year.
A key component to the success of the program is the volunteers that provide their time and other resources to work with communities across the country. While every one of the volunteers is a superstar, TRANSCAER recently awarded select individuals, companies, and organizations that went above and beyond their support of the program.
TRANSCAER is also very fortunate to have national partners that provide invaluable support, including the National Volunteer Fire Council, U.S. Department of Energy’s Environmental Management Office, U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, and U.S Department of Transportation’s Federal Railroad Administration.
We are very grateful to Senator Capito for recognizing TRANSCAER and to Congress for expressing their support for a program that has been helping keep emergency responders and communities safe for three decades.
https://blog.americanchemistry.com/2016/04/capito-demonstrates-commitment-to-helping-emergency-responders/
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(ACC Mentioned) TPP & TTIP Bring Change Closer
May 2, 2016 | Lexology
By Squire Patton Boggs
Mega-regional agreements could reshape international trade in chemical products, say Carolyn Buller, head of the Chemicals practice, and Frank Samolis, leader of the Colombia/Chile country desk, at Squire Patton Boggs.
Major trade negotiations in two parts of the world have the potential to benefit the chemicals industry greatly in the coming years. The Trans-Pacific Partnership (TPP) agreement eliminates tariffs in key Asia-Pacific markets, including several countries with which the US does not yet have a preferential trade relationship. At the same time, the US and the EU are continuing efforts towards changing their own trade relationship through the Transatlantic Trade & Investment Partnership (TTIP).
TPP and TTIP are especially critical, as the World Trade Organisation (WTO) and its Doha round remain at a standstill, with little chance for progress. Together, these two agreements will set the rules of the road for trade in the 21st century and provide new market opportunities for chemical companies around the world.
TPP: The Road Ahead
TPP is an ambitious trade agreement between the US and 11 partners: Australia, Canada, Japan, Malaysia, Mexico, Peru, Vietnam, Chile, Brunei, Singapore and New Zealand. On 5 October 2015, the TPP parties announced that they had reached a final deal after five years of negotiations.
The final agreement, released one month later on 5 November, comprises 30 chapters, dozens of bilateral exchanges and nearly 5,000 pages. While the US already shares trade agreements with six of the TPP parties, the deal opens up markets in five others: Brunei, Malaysia, New Zealand, Vietnam and, most notably, Japan.
According to the Department of Commerce’s International Trade Administration, US chemical exports to these markets totalled $8.7 billion in 2014 alone and currently face up to 35% tariffs. The TPP agreement will significantly reduce or eliminate tariffs on chemicals trade, with a majority of tariff lines falling to zero immediately upon entry into force.
In fact, Japan, one of the world’s largest economies, will eliminate tariffs on all US chemicals on Day One of the agreement. The deal also includes a chapter on regulatory coherence that encourages good regulatory practices and establishes a Committee on Regulatory Coherence to identify future priorities and advance further regulatory cooperation.
The American Chemistry Council (ACC) and other major US business associations have voiced support for the TPP agreement. Greg Skelton, ACC’s senior director of regulatory and technical affairs, recently testified before the US International Trade Commission that the deal “has the potential to eliminate punitive tariffs and taxes, and provide new market opportunities for US chemical exports.”
What’s Next for TPP?
Representatives from the 12 TPP parties met in New Zealand on 4 February and signed the agreement. Attention now turns to the capital cities as each country undertakes its own ratification or approval procedures. Simultaneously, other governments are already angling to accede to the agreement. South Korea, Indonesia, Colombia, the Philippines and Thailand are among those reportedly considering whether to join the bloc.
Trade agreements are not treaties under US law, and must therefore be implemented through the legislative process (i.e. consideration by both the House of Representatives and the Senate). However, under the regular order, any one of 535 individual Members of Congress can propose amendments to draft legislation, creating substantial uncertainty for international negotiators.
Advocates argue that the only practical way to pass trade agreements in the United States is through the ‘fast-track’ process known as Trade Promotion Authority (TPA). This creates an alternative mechanism between Congress and the President for the consideration of trade agreements.
Generally speaking, Congress outlines overall negotiating objectives within the bill and is closely consulted over the course of negotiations. The final negotiated agreement is then sent to Congress for a simple up or-down vote, without amendment.
The TPA’s proponents believe that it provides negotiating partners the assurances necessary to put their very best offers on the table without fear of the deal being amended by Congress. President Obama called on Congress to approve the TPP deal during his 2016 State of the Union Address, pointing to the pact as a way to “open markets, protect workers and the environment, and advance American leadership in Asia”.
However, Republican lawmakers have expressed concerns with various aspects of the final deal, including labor provisions, IP protections for biological drugs, and language withholding investor- state dispute settlement protections from the tobacco industry. On 20 January, US Trade Representative Michael Froman told the press that the administration is looking to address Congressional and industry concerns related to the TPP deal through implementation and enforcement plans. These plans are reportedly underway, but may only be in the early stages.
While Obama is seeking swift approval of the deal, Senate Majority Leader Mitch McConnell and other Republican leaders have stated they do not want a vote on the TPP prior to the lame duck session that will follow the November Presidential and Congressional elections. In fact, trade issues can be especially contentious during election years like this one, increasing the likelihood that any Congressional vote on TPP will be delayed until the end of 2016.
The TPP debate is only just heating up, and the agreement’s supporters and opponents are preparing for major advocacy efforts focused on Capitol Hill. The debate surrounding renewal of TPA in 2015 pitted protrade industry stakeholders against labour organisations and other groups, previewing the fight for TPP. Supporters of the pact must voice their support to Congress to help make the TPP a reality.
Highly regulated industries like the chemical sector will probably see greater regulatory efficiency gains in the ongoing TTIP negotiations between the US and the EU. Obama first announced the launch of these negotiations in his 2013 State of the Union Address.
In fact, the US-EU economic relationship is the largest in the world, and many tariffs are already low or non-existent. More notably, TTIP negotiators are working to deepen US-EU regulatory cooperation by increasing transparency ahead of regulatory acts, providing opportunities for stakeholder consultations and harmonising regulatory requirements wherever possible.
Chemical industry stakeholders on both sides of the Atlantic support the TTIP’s goal of promoting US-EU regulatory cooperation. The ACC and CEFIC have put forward their own proposals to support the negotiations and promote efficiencies in US and EU regulation of their industry. Unlike the TPP talks, the TTIP talks are still ongoing, providing businesses the opportunity to engage with negotiators and influence the final text.
The US and EU have already held 11 rounds of negotiation. Despite the Obama administration’s stated wish to finalise the agreement before he leaves Washington, less than nine months now remain before his successor takes office. The deal faces hurdles in the EU as well – sceptics are already mobilising opposition efforts, while a referendum in the UK in June could lead to the country’s complete withdrawal from the EU and introduce even more uncertainty to the process.
The TPP and TTIP agreements will set high standards for future trade agreements and modernise international business in the 21st century, especially as the WTO’s Doha round continues to falter.
http://www.lexology.com/library/detail.aspx?g=93f35c35-26c3-40cd-823b-fd84f7364b73
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(ACC Mentioned) Moolenaar, Lipinski Announce Congressional Chemistry Caucus
May 2, 2016 | Midland Daily News
U.S. Reps. John Moolenaar, R-Midland, and Daniel Lipinski, D-Ill. have announced the formation of the Congressional Chemistry Caucus.
The caucus will serve as an informal group of members dedicated to issues related to the transformative science of chemistry. The mission of the bipartisan caucus is to educate members of Congress and the public about the benefits of chemistry in today’s society and the importance of sound science in public policy. The caucus will also strive to promote and advance policies aimed at encouraging today’s students to become the chemists of tomorrow.
Moolenaar and Lipinski issued the following statement: “Every day, Americans use products that have been created and improved by the science of chemistry. Chemistry has made America a world leader in research and innovation and it employs more than 800,000 Americans with good-paying jobs. As co-chairs of the Congressional Chemistry Caucus, we are honored that 12 colleagues have joined us in a bipartisan effort to form the nucleus of this caucus.
“It is our hope that this caucus will be a good resource for getting the word out about different aspects of chemistry and the chemical industry, while also increasing the public’s understanding of chemistry and promoting the importance of STEM education.”
Moolenaar has a bachelor’s degree in chemistry from Hope College. He is a member of the Science, Space and Technology Committee and has supported STEM education initiatives as a member of Congress and previously in the Michigan legislature.
Lipinski is also a member of the Science, Space and Technology Committee. As a former teacher, he has pushed for improvements in STEM education throughout his career.
The other members of the Congressional Chemistry Caucus are Sanford Bishop, D-Ga., Mo Brooks, R-Ala., Buddy Carter, R-Ga., Steve Cohen, D-Tenn., Jeff Denham, R-Calif., Debbie Dingell, D-Mich., Bill Foster, D-Ill., Richard Hanna, R-N.Y., Barry Loudermilk, R-Ga., Mark Takano, D-Calif., Tim Walberg, R-Mich., and Jackie Walorski, R-Ind.
The American Chemistry Council and the American Chemical Society released the statements in support of the caucus.
http://www.ourmidland.com/news/moolenaar-lipinski-announce-congressional-chemistry-caucus/article_09a35861-6019-5929-b221-0bebc0fa823b.html
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(ACC Mentioned) Congress Forms a Chemistry Club
May 2, 2016 | Chemical & Engineering News
By Jessica Morrison
Capitol Hill now has its own chemistry club—the Congressional Chemistry Caucus.
Kicked off on April 27, the new organization joins the ranks of more than 400 other Capitol Hill caucuses—groups created by members of Congress who support common legislative goals.
The chemistry caucus, chaired by Reps. John Moolenaar (R-Mich.) and Daniel Lipinski (D-Ill.), is intended “to educate members of Congress and the public about the benefits of chemistry in today’s society and the importance of sound science in public policy,” according to a statement from Moolenaar.
Moolenaar, who once worked as a chemist for Dow Chemical, says, “All of us are excited by the opportunity to make chemistry accessible, to inspire the next generation of people going into STEM education.”
The new group, initially consisting of 14 legislators, both Democrats and Republicans, will work to grow its membership this year before introducing legislation, says Anthony Pitagno, director of advocacy for the American Chemical Society (ACS). The society worked with two industry groups—the American Chemistry Council and National Association of Chemical Distributors—and with Moolenaar and Lipinski to establish the caucus.
http://cen.acs.org/articles/94/web/2016/04/Congress-forms-chemistry-club.html
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(ACC Mentioned) Screening Method Could Make Chemical Risk Management Easier, Cheaper
May 2, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A new method to analyze and define chemical risk will make it easier and less expensive to manage potential risks, according researchers who have published their approach in the journal Risk Analysis.
The authors say there are more than 80,000 chemicals in commerce and the environment, and the potential human health risks for most of these remain unknown. Using quantitative high-throughput screening technologies and adverse outcome pathways (AOPs) will allow regulatory agencies — such as the EPA — to prioritize which of these chemicals are hazardous and should be further evaluated, the researchers say.
As EHS Today explains, high-throughput screening uses robotics and other technological devices, allowing researchers to quickly conduct millions of chemical tests. AOPs trace biological events leading to adverse effects, which can be used in risk assessment.
“In my opinion, this work is starting to lay the foundation that will allow risk assessors and risk managers around the world to couple high-throughput screening tests and adverse outcome pathways for risk assessment,” Dr. Lyle D. Burgoon of the US Army Engineer Research and Development Center in Research Triangle Park, North Carolina, told EHS Today.
When asked about the study, the Society of Chemical Manufacturers and Affiliates’ Dan Newton, government relations senior manager, told Environmental Leader that “integrating advances in high throughput in-vitro testing could have broad implications on the chemical manufacturing sector. Generally speaking, it is an obvious way to reduce animal testing, and increase efficiency. From a regulatory standpoint, by increasing the understanding of the effects of certain chemicals and chemical categories, it could help inform agency priorities, as well as regulatory decision making.”
While industry groups say chemical prioritization is essential, they are quick to point out that the “more than 80,000 chemicals” figure is misleading.
The Toxic Substances Control Act (TSCA), currently being updated in Congress, requires the EPA to keep a list of all chemicals manufactured or processed in the US. The TSCA Chemical Substance Inventory includes about 84,000 chemicals, but the Society of Chemical Manufacturers and Affiliates and the American Chemistry Council both say this number does not reflect chemicals that are actually being produced and used today.
A more accurate number of chemicals in commerce, according toEPA data, is closer to 7,500 — this reflects chemicals that are produced in what EPA considers “significant amounts” and are widely used in commerce.
“Chemical prioritization is critical to a modernized TSCA,” says board-certified toxicologist Richard Becker, Ph.D. Becker is also a senior director of the American Chemistry Council’s science and research division.
“Developing a chemical prioritization process will help EPA create a clear process to determine which chemicals may require further scientific evaluation, and which do not,” he told Environmental Leader. “This ensures that EPA does not waste time and resources to evaluate chemicals that are already well-understood, such as those that are known not to pose significant risk to public health or the environment.”
Becker says ACC supports the development of new methods that use high-throughput screening to improve risk-based prioritization. Such approaches provide more data in less time, and at less cost.
“As experience grows in interpreting high-throughput HTS data, developing and verifying AOPs and deriving human exposure estimates, we anticipate there will be a number of pilot approaches — like the one described in this publication — that will be developed.”
https://www.environmentalleader.com/2016/05/02/screening-method-could-make-chemical-risk-management-easier-cheaper/
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A Trilogy of TSCA Reform: These Viewpoints Urge Passage, Green Chemistry, Asbestos Provisions
Apr 29, 2016 | Bloomberg BNA
By Steve Gibb
Legislation to overhaul the 1976 Toxic Substances Control Act is moving ahead in Congress, and we are watching every step.
Here is some of our latest news:
Bloomberg BNA's Anthony Adragna reports in a story for subscribers that House and Senate negotiators may emerge with a combined bill the week of May 9 in Lawmakers Amble Toward Chemical Reform Finish Line.
Whenever the legislation emerges, the chemical industry must be able to plan for compliance, says Beth Bosley of Boron Specialities. Bosley, who has extensive experience with trade associations and testifying before Congress, reviews what it took to reach this point and how a broad section of groups want these measures to become law. Her story for subscribers: A Toxic Substances Control Act for the 21st Century.
Boosting green chemistry as lawmakers re-authorize TSCA will improve safety, processing, sustainability and public health according to the University of Massachusetts at Lowell's Joel Tickner, a leading scholar and science policy expert in the area. His article for subscribers: Mainstreaming Green Chemistry: Why TSCA Reform is Necessary but Not Sufficient.
And finally, asbestos advocate Linda Reinstein outlines the human costs of how past efforts to regulate asbestos under TSCA fell short and how new legislation must be able to address this and other high risk chemicals in Toxic Substances Control Act Reform or Irreversible Rollback?
http://www.bna.com/trilogy-tsca-reform-b57982070499/
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EPA Guides Electric Utilities on Chemical Reporting Duties
May 2, 2016 | BNA Daily Environmental Report
By Pat Rizzuto
The Environmental Protection Agency has released a fact sheet to help electric utilities understand their obligations to report details on chemicals they manufacture.
The Chemical Data Reporting rule (CDR) submissions that utilities may be required to file are due between June 1 and Sept. 30.
Carolyn Slaughter, director of environmental policy for the American Public Power Association, told Bloomberg BNA by e-mail: “The reporting obligation typically affects utilities that operate coal-fired plants that produce byproducts such as coal ash, fly ash and flue gas emission control materials.”
Ammonia, gypsum byproducts and regenerated thiosulfates are also among the chemicals that electric power utilities can generate that may be subject to CDR requirements, the EPA said in guidance posted April 28.
The guidance is the latest in a series of nine “fact sheets” the agency has issued since January.
Slaughter said “any guidance EPA offers is helpful to the industry. The last reporting period was in 2012, so there have been some changes in the reporting requirement; we are still evaluating to determine the impact.”
Koch Industries Inc., the Ohio Valley Electric Corp., the U.S. Tennessee Valley Authority and Xcel Energy Inc. were among the electric utilities that filed chemical data reports in 2012.
Chemicals Must Provide Commercial Advantage
As they generate electricity, utilities can generate byproducts, chemicals that can be used to make other chemicals, or “intermediates” and wastes, EPA's fact sheet said.
Such materials may be subject to CDR it provides the utility a commercial advantage, EPA said.
For example, ashes contain elements including calcium, iron, potassium, titanium and vanadium. Some of these materials may be used to make concrete or roofing materials, the agency said.
Ammonia may be used to remove nitrogen oxide from flue gas; and gypsum byproducts may be used to make wallboard, EPA said.
The CDR requires companies that made more than 25,000 pounds of any reportable chemical in 2012, 2013, 2014 or 2015 to file production volume, processing, use and other information.
The reporting threshold drops to 2,500 pounds if a chemical is subject to certain Toxic Substances Control Act regulations.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=88470735&vname=dennotallissues&fn=88470735&jd=88470735
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Camp Lejeune Bill Tries to Improve Benefits System
Apr 29, 2016 | E&E News PM
By Sam Pearson
The Department of Veterans Affairs would be required to provide medical care for illnesses linked to veterans' exposure to harmful chemicals at Camp Lejeune in North Carolina under legislation introduced yesterday.
The bill, S. 2888, or the "Janey Ensminger Act of 2016," would set stricter rules for how the veterans administration determines what health conditions are connected to widespread water contamination at Camp Lejeune in Jacksonville, N.C., which occurred from 1957 to 1987. The measure was introduced by North Carolina Republican Sens. Richard Burr and Thom Tillis and Sen. Bill Nelson (D-Fla.).
The bill is named for Janey Ensminger, the daughter of Marine Corps Master Sgt. Jerry Ensminger. Janey was born at Camp Lejeune and later died of health problems linked to exposure to the toxic water.
Lawmakers passed another Janey Ensminger Act in 2012, which allows the VA to provide care to affected former service members. Too often, the lawmakers contend, the VA is moving too slowly to implement the law or is challenging the scientific basis for health decisions under strict interpretations of rules rather than providing benefits.
The VA has challenged findings of the Centers for Disease Control and Prevention's Agency for Toxic Substances and Disease Registry (ATSDR) linking various cancers and other health problems to the water contamination, the lawmakers said, delaying compensation for veterans. The VA expanded some eligibility for disability services to more Camp Lejeune veterans last year (Greenwire, Dec. 18, 2015).
Last year, Navy Secretary Ray Mabus said water at Camp Lejeune has been safe for nearly 30 years and blamed the contamination on an off-base dry cleaner, not the Marine Corps. He claimed the ATSDR "can find no correlation," the Military Times reported.
Under the new proposal, the ATSDR's findings would be incorporated into the law. The ATSDR would be required to review scientific literature on Camp Lejeune exposures and establish which illnesses can be linked to the base at various levels of certainty. If its scientists confirmed a link, the VA would have to defer to its experts, the lawmakers said.
The bill "puts a stop to VA denials and will ensure that these men and women who served our nation get the care they need," Burr said in a statement. "These veterans should not have to fight the VA every time that government researchers find a link between a disease and the toxins that were in their drinking water."
http://www.eenews.net/eenewspm/2016/04/29/stories/1060036522
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Clean Power Plan Opponents Want Two Days of Argument
May 2, 2016 | BNA Daily Environmental Report
By Andrew Childers
Opponents of the Clean Power Plan are asking a federal appellate court to schedule two days of arguments over the rule, but they were unable to reach consensus on which issues most deserved the judges' attention (West Virginia v. EPA, D.C. Cir., No. 15-1363, responses filed 4/28/16).
Opponents of the carbon dioxide standards for power plants (RIN 2060-AR33), including several states, utilities and industry groups, are asking the U.S. Court of Appeals for the District of Columbia Circuit for at least five hours of argument on the Clean Power Plan spread out between June 2 and 3 in proposed argument formats filed April 28.
However, the challengers were at an impasse over which arguments to spotlight before the judges and how to allocate time, with the Competitive Enterprise Institute and other advocacy groups seeking additional time for argument over the Environmental Protection Agency's cost and benefit analysis of the rule that was not included in the format suggested by states and utilities.
Separately, the EPA and its supporters said the argument should only take three hours.
Opponents Divide Time
States and utilities opposed to the Clean Power Plan are asking the D.C. Circuit to divide the argument time into six topics over the two days sought.
“Petitioners believe that a full morning session is warranted on each of the two consecutive days the Court has set aside due to the myriad issues presented, their complexity, and their importance,” the groups said.
The first day would hear argument over whether the Clean Power Plan impermissibly forces utilities to shift generation away from coal-fired power to cleaner alternatives such as natural gas and renewable energy, which was a key component of their briefs to the court (35 DEN A-16, 2/23/16).
Additional arguments that first day also would cover whether the EPA is barred from regulating carbon dioxide from power plants under Section 111(d) of the Clean Air Act given those units are already subject to hazardous air pollutant standards under Section 112 and argument about whether the rule encroaches on state authority to regulate the power sector.
On the second day, argument would cover whether aspects of the rule were properly subject to notice and comment before finalization, whether the controls required of utilities meet the Clean Air Act requirement that they be adequately demonstrated, and constitutional challenges to the Clean Power Plan.
The EPA proposed a shorter argument schedule that would see five topics argued in three hours. The EPA is proposing that the court hear argument over core statutory challenges to the rule, the Section 112 exclusion, Tenth Amendment challenges, procedural challenges to the Clean Power Plan and other record-based issues.
Cost, Benefit Argument Sought
In addition to that proposed schedule, the Competitive Enterprise Institute and other groups are asking the D.C. Circuit to include an additional 20 minutes on the second day of argument to debate the EPA's cost and benefit analysis of the Clean Power Plan.
“Most of the issues on which the other petitioners propose to forgo oral argument turn on fact-specific details in the record and concern the legality of specific aspects of the rule,” the institute and other groups said. “By contrast, EPA's fundamentally flawed cost-benefit analysis raises a purely legal question—whether a regulation promulgated under CAA § 111(d) is arbitrary and capricious when its costs far exceeds its domestic benefits.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=88470748&vname=dennotallissues&fn=88470748&jd=88470748
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EPA Says High Court 'Ambiguous' On Possible Delay Of ESPS Deadlines
Apr 29, 2016 | Inside EPA
By Lee Logan
EPA is pushing back against GOP calls to halt all work on its power plant greenhouse gas rule in light of the Supreme Court stay, arguing that the court's order is “ambiguous” on the issue of whether all of the rule's deadlines must be delayed if the rule survives legal challenge and that the issue will not be settled until that occurs.
“The ultimate effect of the stay on [Clean Power Plan (CPP)] deadlines will be determined when the stay is lifted,” acting EPA air chief Janet McCabe says in an April 18 letter to Senate environment committee Chairman James Inhofe (R-OK) that was obtained by Inside EPA April 29.
The letter is a response to Inhofe's March 10 letter arguing that the high court's stay order includes “inherent” requirements to postpone, or toll, all of the deadlines in the rule to account for the litigation.
As evidence, Inhofe had argued that a stay application from electric co-ops asked the high court to “extend all compliance dates by the number of days between publication of the Rule and a final decision in this consolidated appeal.”
But McCabe in her recent letter -- which echoes her earlier comments that it is “premature” to speculatewhether the rule's deadlines would be delayed -- says that “different applicants requested different relief.”
“The government interpreted the stay applicants' opening briefs as requesting that all CPP deadlines be tolled, and it opposed the stay in part on the grounds that such relief would be extraordinary and unprecedented,” she writes. “In their reply brief, however, the States clarified that they were only seeking a stay that would relieve States of the obligation to comply with CPP deadlines during the litigation and that the stay would not necessarily provide for day-to-day tolling of the deadlines.”
She adds that the high court's Feb. 9 orders “did not discuss the parties' differing views of whether and how the stay would affect the CPP's compliance deadlines, and they did not expressly resolve the issue.”
The Department of Justice, on EPA's behalf, said in a Feb. 4 brief to the high court that stay applicants “appear to seek much more than interim relief that would 'temporarily divest [the Rule] of enforceability' while review is ongoing. . . . Rather, they explicitly or implicitly ask this Court to toll all of the relevant deadlines set forth in the Rule, even those that would come due many years after the resolution of their challenge, for the period between the Rule’s publication and the final disposition of their lawsuits.”
But a coalition of states opposing the rule, led by West Virginia, said in a Feb. 5 reply brief that “contrary to EPA’s assertion . . . the States’ requested relief is a straightforward [Administrative Procedure Act] stay, which 'halt[s] or postpone[s] [the Power Plan, [including] by temporarily divesting [the Power Plan] of enforceability.'”
The states added: “In the unlikely event the Plan survives judicial review, . . . tolling would be appropriate as a matter of basic fairness. But the exact shape of such an equitable disposition need not be decided today.”
The states cited a 1999 U.S. Court of Appeals for the District of Columbia Circuit decision in Michigan v. EPAthat accepted post-decision briefing on a similar issue for an air regulation and then tolled the deadline for states to submit compliance plans after the stayed rule was upheld.
Deadline Advocacy
The deadline issue has been the subject of advocacy from both supporters and opponents of the rule, also known as the existing source performance standards (ESPS).
For example, a recent report from the Institute for Policy Integrity (IPI) at New York University largely agrees with EPA's view, arguing the D.C. Circuit likely would settle the issue if the rule is upheld.
Further, the IPI report says that the D.C. Circuit in that scenario should avoid delaying the rule's compliance deadlines because greater deployment of renewable power over the coming years could ease compliance.
“It is likely that compliance with the Clean Power Plan will be achievable on a shorter timeframe than originally envisioned,” the report says, arguing that recently extended tax credits for wind and solar power will deploy much more zero-emission resources than EPA projected when it finalized the rule in August 2015.
IPI's report serves as a rebuttal to a March 2 white paper from the U.S. Chamber of Commerce that sought to build a legal case for why the high court stay requires a delay for all ESPS state plan submission and compliance deadlines.
Similarly, an April 8 post from the law firm Jones Day charges that EPA is “creating a confusing situation for those charged with implementing the Clean Power Plan.” It argues the agency must confirm that the stay means “compliance deadlines must therefore be postponed” to offer clarity to industry and states.
Associated Rules
In her recent letter, McCabe also confirms that the agency will continue work on associated rules -- including an early action incentive program and model trading rules -- because some states have “asked us to move forward with our outreach and to continue providing support and developing tools” to aid implementation.
“We will move forward developing these actions in a way that is consistent with the stay while providing states the tools they have asked for to help address carbon pollution from power plants,” she writes.
McCabe adds that EPA “has in the past moved forward with preparing for the potential implementation of a rule while it has been stayed, in anticipation of the possibility that the stay could be lifted. Such actions are unaffected by a stay.” To support the point, she cites a 2009 Supreme Court ruling in Nken v. Holder, which concerned how to consider a stay request of a deportation order.
EPA's position is further confirmed by its April 26 move to send a proposed update to its Clean Energy Incentive Program to the White House for inter-agency review.
http://insideepa.com/daily-news/epa-says-high-court-ambiguous-possible-delay-esps-deadlines
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States Ask EPA for Help on Climate Rule Plans
Apr 29, 2016 | The Hill - E2 Wire
By Devin Henry
More than a dozen states have asked the Environmental Protection Agency (EPA) to give them more information on how to form implementation plans for the Obama administration’s climate rule for power plants.
The rule — the Clean Power Plan — has been stayed by the Supreme Court while litigation against it proceeds. But states are still able to form plans to implement the carbon reduction goals set out in the rule, and fourteen sent EPA Acting Assistant Administrator Janet McCabe a letter on Thursday asking for guidance on how to do that.
"The final resolution of this litigation is uncertain,” the states wrote. “However, having more information about how states might comply with the Clean Power Plan should it be upheld will better inform state engagement and agency decision-making.”
The letter said the EPA has agreed to provide technical assistance for state plan development, but that it wanted officials to provide “a final model or rules” for them to consult.
“Of course, the relevance of such a rule will depend on the outcome of litigation, however our states would find the information helpful in the near term for the planning purposes described above,” they wrote.
Environmental regulators from California, Colorado, Connecticut, Delaware, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Vermont, Virginia and Washington all signed the letter.
Th Supreme Court’s February stay order means states opposed to the Clean Power Plan can stop working on their implementation strategies. But EPA officials, including Administrator Gina McCarthy, have said they’re willing to work with states that voluntarily put together carbon reduction measures while litigation against the rule moves forward.
“From my perspective, the conversations [with states] have always been robust on the Clean Power Plan since before we even started it, and there is no waning on that robustness,” McCarthysaid earlier this month.
http://thehill.com/policy/energy-environment/278217-states-ask-epa-for-help-on-climate-rule-plans
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Study: US Oil Field Source of Global Uptick in Air Pollution
Apr 29, 2016 | The New York Times
By Associated Press
An oil and natural gas field in the western United States is largely responsible for a global uptick of the air pollutant ethane, according to a new study.
The team led by researchers at the University of Michigan found that fossil fuel production at the Bakken Formation in North Dakota and Montana is emitting roughly 2 percent of the ethane detected in the Earth's atmosphere.
Along with its chemical cousin methane, ethane is a hydrocarbon that is a significant component of natural gas. Once in the atmosphere, ethane reacts with sunlight to form ozone, which can trigger asthma attacks and other respiratory problems, especially in children and the elderly. Ethane pollution can also harm agricultural crops. Ozone also ranks as the third-largest contributor to human-caused global warming after carbon dioxide and methane.
"We didn't expect one region to have such a global influence," said Eric Kort, lead author of the study and an assistant professor of climatic science at the University of Michigan in Ann Arbor.
The study was launched after a mountaintop sensor in the European Alps began registering surprising spikes in ethane concentrations in the atmosphere starting in 2010, following decades of declines. The increase, which has continued over the last five years, was noted at the same time new horizontal drilling and hydraulic fracturing techniques were fueling a boom of oil and gas production from previously inaccessible shale rock formations in the United States.
Searching for the source of the ethane, an aircraft from the National Oceanic and Atmospheric Administration in 2014 sampled air from directly overhead and downwind of drilling rigs in the Bakken region. Those measurements showed ethane emissions far higher than what was being reported to the government by oil and gas companies.
The findings solve an atmospheric mystery — where that extra ethane was coming from, said Colm Sweeney, a study co-author from the Cooperative Institute for Research in Environmental Sciences at the University of Colorado in Boulder.
The researchers said other U.S. oil and gas fields, especially the Eagle Ford in Texas, are also likely contributing to the global rise in ethane concentrations. Ethane gets into the air through leaks from drilling rigs, gas storage facilities and pipelines, as well as from intentional venting and gas burnoffs from extraction operations.
"We need to take these regions into account because it could really be impacting air quality in a way that might matter across North America," Kort said.
Helping drive the high emission levels from the Bakken has been the oil field's meteoric growth. Efforts to install and maintain equipment to capture ethane and other volatile gases before they can escape have lagged behind drilling, said North Dakota Environmental Health Chief Dave Glatt.
Glatt's agency has stepped up enforcement efforts in response. Last year, the state purchased a specialized camera that can detect so-called fugitive gas emissions as they escape from uncontained oil storage tanks, leaky pipelines, processing facilities and other sources.
"You're able to see what the naked eye can't and it reveals emissions sources you didn't know where there," Glatt said. "It's a game changer. A lot of the companies thought they were in good shape, and they looked through the camera and saw they weren't."
Regulators at the Environmental Protection Agency were reviewing the study's results. Spokeswoman Laura Allen said Friday that new clean air rules recently announced by the Obama administration to curb climate-warming methane leaks from oil and gas drilling operations should also help address the harmful ethane emissions.
There are other ways ethane gets into the atmosphere — including wildfires and natural seepage from underground gas reserves. But fossil fuel extraction is the dominant source, accounting for roughly 60 to 70 percent of global emissions, according to a 2013 study from researchers at the University of California.
http://www.nytimes.com/aponline/2016/04/29/us/politics/ap-us-ethane-pollution.html
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Pipeline Explosion Injures Man in Pennsylvania
May 2, 2016 | BNA Daily Environmental Report
By Leslie A. Pappas
A natural gas pipeline exploded in a rural area outside Pittsburgh April 29, injuring one man and prompting an investigation by federal authorities.
The explosion in Salem Township, Westmoreland County, occurred just before 8:30 a.m. and started a fire that burned until 9:22 a.m. when Spectra Energy, the owner of the pipeline, was able to shut off the gas, Pennsylvania Department of Environmental Protection spokesman John Poister told Bloomberg BNA in a phone call April 29.
The explosion caused “a rather intense fire” that burned for several hours and prompted the evacuation of about 10 to 12 homes in a quarter-mile area, Poister said. A homeowner of a neighboring property who was working outside when the explosion happened was taken to a hospital in Pittsburgh with serious burn injuries. His home was destroyed and several other homes in the area were damaged, Poister said.
There are four pipelines in the area. It was not immediately clear which of the pipelines ruptured, what initially caused the explosion, or how the rest of the pipelines were affected, Poister said.
In a statement e-mailed at noon April 29, Spectra Energy confirmed that it was responding to “an incident” involving a Texas Eastern Transmission pipeline in Salem Township, Pa., and was cooperating with authorities.
The U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) is investigating the blast, the DEP said. The federal agency has jurisdiction because at least one of the pipelines is an interstate transmission line.
Texas Eastern Transmission is a 9,096-mile pipeline network that spans from Texas and the Gulf Coast to New York City and runs through Pennsylvania, according to the company's website. The pipelines are owned by Spectra Energy Partners, LP and operated by Spectra Energy.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=88470738&vname=dennotallissues&fn=88470738&jd=88470738
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CSX Train Derails in Northeast Washington, Leaking Hazardous Chemicals and Disrupting Travel
May 1, 2016 | Washington Post
By Faiz Siddiqui, Luz Lazo, and Michael Smith
A CSX freight train derailed in Northeast Washington early Sunday, spilling hazardous chemicals along a busy rail corridor. The wreck stranded some residents away from their homes, forced the closure of a Metro station and snarled traffic as emergency personnel sought to contain the leaks and clear the wreckage.
Officials said 14 rail cars of the 175-car train left the tracks. A rail engineer and a conductor had been aboard the train but were accounted for, authorities said. No evacuations were ordered, and no one was injured.
The cause of the wreck is under investigation, and the Federal Railroad Administration was at the scene Sunday.
Red Line service was suspended between Metro’s NoMa-Gallaudet and Brookland stations, and the Rhode Island Avenue station was closed. At least six blocks of Rhode Island Avenue NE were closed for much of the day.
The derailment occurred about 6:40 a.m. as the train was passing through Washington from Cumberland, Md., en route to Hamlet, N.C., CSX said. The crash site was near Ninth Street NE and Rhode Island Avenue NE. CSX said 94 cars were carrying mixed freight and 81 were empty.
The derailment, about 70 cars into the train, spilled half the liquid contents of a 15,500- gallon tanker containing sodium hydroxide, D.C. Fire and EMS Deputy Chief John Donnelly said. The liquid spilled onto the tracks and seeped into the ground below it.
Officials said there were no air- or water-quality issues at the scene.
CSX spokeswoman Melanie Cost said the company did not have a timeline on the cleanup or restoration of the tracks.
“First let me apologize to the community for the inconvenience and the alarm that the derailment caused this morning,” she said. “Every decision that we’re making is focused on the safety of the responders and the community.”
CSX described sodium hydroxide as a chemical “used to produce various household products, including paper, soap and detergents.” It is a chemical component similar to bleach or Drano, officials said. Two other rail cars were leaking chemicals that officials described as less hazardous.
By mid-morning, D.C. Mayor Muriel E. Bowser (D) said the chemical leak was contained. But more detailed inspections revealed further leaks, according to CSX. In addition to the tank car leaking sodium hydroxide, another tank car was found to be leaking calcium chloride, described as “non-hazardous,” while a third was leaking ethanol “slowly from the base of a valve,” CSX spokeswoman Kristin Seay said.
The wreckage was visible from high-rise apartments near the crash site: A zigzag pattern of mangled tankers and overturned freight cars sat beside the tracks below the Rhode Island Avenue Metro station. A set of wheels, still intact but missing its freight car, sat upright beside the track bed.
Weekdays, the affected tracks are shared by Amtrak, MARC and CSX trains. The tracks also run parallel to the Metropolitan Branch Trail, popular with cyclists and runners. On Sunday, the trail was closed near the site of the derailment, and officials said it would remain closed indefinitely.
Metro spokesman Dan Stessel said barring any unforeseen circumstances, Red Line service would be restored Sunday night.
Stessel said CSX was working to upright a rail car that was leaking ethanol. When the leak is mitigated, he said, the Metro tracks would be turned back over to the agency, which would run test trains and probably restore service soon thereafter.
If for any reason CSX is not able to turn over the scene, Stessel said, “that could affect service into the morning.”
MARC announced major service disruptions for its Brunswick Line on Monday because of the derailment. Its trains will run as far south as Silver Spring, where Metro will accept passengers at no charge to continue their commutes into the District. In addition, the Amtrak line from Washington to Chicago will not run Monday, but the Northeast Corridor lines will run as normal, officials said.
According to the Centers for Disease Control and Prevention, the effects of exposure to sodium hydroxide can include irritated eyes, burning skin, loss of hair and swelling of the lungs. The odorless solid is white or colorless and is usually in flakes, beads or a granular form. Sodium hydroxide is especially dangerous when mixed with water, because the toxin when wet creates heat that can ignite flammable products. It was raining heavily Sunday morning near the crash site.
Donnelly said the amount that leaked did not put District residents at risk.
“The fumes should not cause you any problems, and you should not be able to smell them anywhere else,” he said.
In recent years, Washington residents and elected officials have voiced concerns about rail safety and the risk of having freight trains pass through residential neighborhoods and the seat of the federal government.
Residents of Navy Yard, a formerly industrial neighborhood that is now densely populated, fought a CSX plan to reconstruct the 110-year-old Virginia Avenue Tunnel in Southeast, a key piece of the region’s rail infrastructure that is just a mile away from the U.S. Capitol. CSX is now in the midst of the $170 million project, which includes twin tunnels built to allow for double-stacked trains.
One of the most hotly debated projects in recent years, the tunnel project revived concerns about the safety and security of the city’s railways, prompting the D.C. Council two years ago to allocate funding to conduct a comprehensive rail study that would provide an assessment of all rail service: passenger, commuter and freight.
Some residents say they fear they are at a greater risk of train derailments and that once the tunnel project is completed, CSX will increase the transportation of crude oil and other hazardous materials through the area.
CSX says it rarely transports crude oil through the District and does not carry hazardous substances such as compressed flammable gases and toxic and radioactive materials through the city.
In 2009, rainwater leaking into the Virginia Avenue Tunnel from the Southeast Freeway and Virginia Avenue weakened the earthen floor. A split rail caused the derailment of two locomotives and 13 loaded gondola cars transporting scrap metal. And in the spring of 2014, a CSX freight train derailed in downtown Lynchburg, Va., sending rail cars and burning crude spilling into the James River.
Monte Edwards, a trustee with the Committee of 100 on the Federal City, which serves as a watchdog on transportation and urban planning issues, said Sunday’s spill raised renewed concerns about the viability of shared freight and passenger tracks in the District.
Speaking for himself, he said the spill showed CSX’s disregard for rail safety and inspections in the District.
“This was a hydroxide that they spilled this time. Those are nasty things coming through,” he said, reflecting on what could have happened had the chemical spilled just a short distance south, near the Capitol.
“A spill like that [one] that just occurred here in Northeast, [if] that would occur near a grate or an entrance to a Metro station, it would flood the Metro station,” he said.
The spill underscores the need for the District to devise a comprehensive rail plan, similar to state plans required under the 2008 Passenger Rail Investment and Improvement Act, he said. The District Department of Transportation says it expects a rail plan to be completed as early as this summer.
“We would know what’s coming through,” Edwards said. “We would have inspectors. We would have rail safety officers.”
“We have said all along that derailments are very real and these trains are carrying hazardous materials,” said Maureen Cohen Harrington, a Navy Yard resident and member of DCSafeRails, the organization fighting against CSX transporting hazardous materials through the neighborhood. “And what happened today demonstrated that, and we are well aware that this could have been far worse.”
https://www.washingtonpost.com/local/trafficandcommuting/csx-train-cars-derail-in-ne-washington-hazardous-substance-leaking/2016/05/01/568ae3fc-0f97-11e6-8967-7ac733c56f12_story.html
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The Latest: Commuters to Be Impacted by Train Derailment
May 1, 2016 | The New York Times
By Associated Press
The Latest on a train derailment and hazardous material leak in Washington, D.C. (all times local):
5:45 p.m.
The derailment of a freight train in Washington D.C. could make for a messy commute in the area Monday.
Officials say commuters should expect major services disruptions on the MARC Brunswick Line Monday. MARC says trains likely won't operate past Silver Spring.
Metro officials say they hope to have Red Line service fully restored by Sunday evening.
CSX Spokeswoman Melanie Cost said could not say how long the cleanup might take.
She said CSX understands that this is a "significant inconvenience to commuters" and is working as quickly and safely as possible.
___
2:45 p.m.
CSX officials say cleanup efforts will soon begin after one of its freight trains derailed in Washington, D.C.
CSX Spokeswoman Kristin Seay said the sodium hydroxide leak from one of the derailed cars was sealed Sunday.
She said another car was found to be leaking non-hazardous calcium chloride. That leak has also been plugged.
Seay said another car that derailed was slowly leaking ethanol from the base of a valve. She said officials are working to re-seal the valve and that the ethanol has been contained.
No one was injured in the derailment and no evacuations have been ordered.
The train was heading to Hamlet, North Carolina from Cumberland, Maryland when 14 cars derailed early Sunday.
____
9:35 a.m.
CSX says one of its freight trains has derailed in Washington, D.C., sending about 10 cars off the tracks and spilling hazardous material.
CSX spokeswoman Kristin Seay said no injuries were reported after the train derailed Sunday about 6:40 a.m. She says one of the derailed is leaking sodium hydroxide, which is used to produce various household products including soap and detergents.
Sodium hydroxide is a highly corrosive chemical that can irritate and burn the skin and eyes. CSX says it is working with first responders to contain the released product.
No evacuations have been ordered.
The CSX train had three locomotives and 175 cars, including 94 that were loaded with mixed freight, and 81 that were empty.
___
8:20 a.m.
A CSX freight train has derailed in Washington, D.C., leaving several cars overturned and a possible hazardous leak.
Fire officials tell WTOP-TV (http://bit.ly/1W0ldIF) that several cars overturned near the Rhode Island Avenue Metro station about 7 a.m. Sunday, and emergency responders were working to contain a leak. Officials say they do not know what substance is leaking.
Rhode Island Avenue was closed in both directions from 4th to 10th streets in Northeast.
The Red Line's Rhode Island Station also is closed. Metro said it would establish bus shuttle service between the NoMa and Brookland stations.
http://www.nytimes.com/aponline/2016/05/01/us/politics/ap-us-train-derailment-washington-the-latest.html?_r=0
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Home Builders Ask D.C. Circuit To Scrap Ozone NAAQS
Apr 29, 2016 | Inside EPA
The National Association of Home Builders (NAHB) is backing calls for the U.S. Court of Appeals for the District of Columbia Circuit to scrap EPA's rule tightening its ozone air standard from 75 parts per billion (ppb) to 70 ppb, arguing that land-use restrictions stemming from the stricter limit will hurt the economy and NAHB's members.
In an amicus legal brief filed April 28 with the D.C. Circuit in Murray Energy Corporation, et al., v. EPA, et al., NAHB claims the more-stringent national ambient air quality standard (NAAQS) will have “a direct impact to the economic vitality of countless state and local jurisdictions, resulting in job loss and economic stagnation. Fewer jobs and economic opportunities reduce demand for new residential land development and construction activities. Thus, as a general matter, NAHB members are impacted by the broad economic injuries the 2015 Ozone NAAQS imposes on the full economy,” NAHB says.
The criticisms echo various industry groups and some states who have warned that EPA's Oct. 1 rule tightening the 2008 ozone standard down to 70 ppb will place many areas out of attainment with the limit. This will require those areas to impose strict emissions controls on industrial sources of ozone-forming pollution. Opponents of EPA's NAAQS say that this will cause businesses to shutter and leave the areas, causing economic harm.
However, EPA by law cannot consider costs in setting its NAAQS and must do so solely based on consideration of scientific data on a pollutant's impacts on human health -- a process for which the D.C. Circuit has traditionally deferred to the agency in prior lawsuits that have targeted EPA's approach to NAAQS data.
Nevertheless, NAHB in its amicus brief says EPA failed to consider “contextual factors” when setting the NAAQS, citing the concurring opinion of Justice Stephen Breyer in the 2001 Supreme Court ruling in Whitman v. American Trucking Associations, a case in which the high court said the agency may not consider implementation costs when setting NAAQS. Breyer nonetheless wrote that the Clean Air Act “also permits the [EPA] Administrator to take account of comparative health risks.”
Arguing that EPA has failed to consider such comparative health risks that the NAAQS poses to its members, NAHB says, “In the 2015 Ozone NAAQS, EPA failed to consider important factors including economic and health impacts. In particular, EPA failed to adequately address the concerns raised by NAHB that a more stringent NAAQS could lead to adverse health impacts to its members and their employees.”
“Because EPA so significantly lowered the ozone NAAQS, states will still need to consider whether land use controls are necessary to achieve compliance with the ozone NAAQS,” the group writes.
“One of the most draconian impacts NAHB members have experienced, and are likely to experience again as a result of the 2015 Ozone NAAQS, is a ban on the use of construction equipment during daytime hours. Such a ban was promulgated in Texas in response to an EPA NAAQS for ozone,” NAHB claims. Ozone forms during the day through photochemical reactions in the atmosphere.
Although the Texas measure was later rescinded, NAHB says, “the ban remains a model for localities desperate to achieve ozone compliance.” Further, “for those members who can legally build at night, a daytime construction ban poses significant adverse health impacts to NAHB members and the workers they employ. There are significant and well-documented health impacts when construction activity is forced to take place at night.”
Calling for the court to scrap then 2015 ozone NAAQS, the group concludes, “The health risks posed by nighttime construction as a result of an ozone NAAQS are exactly the 'comparative health risks' Justice Breyer called for EPA to consider in the development of a NAAQS.”
http://insideepa.com/the-inside-story
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