Preview Newsletter
PM ACC 5/17/2016
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(ACC Mentioned) Study Claims Link Between BPA, Obesity in Children
May 17, 2016 | E&E Greenwire
By Sam Pearson
Exposure to a common plasticizer during pregnancy may lead to childhood obesity, according to research published today. -
(ACC Mentioned) More BPA Exposure as a Fetus Leaves Kids Fatter at Age 7 - NYC Study
May 17, 2016 | Environmental Health News
By Brian Bienkowski
More BPA exposure before birth could mean more body fat and larger waists during early childhood, according to a New York City study released today. -
(ACC Mentioned) The Clothes You're Wearing Could Be Made Out Of Plastic Bottles
May 17, 2016 | Newsy
By Katherine Biek
Traditional cotton or linen clothes are so last century. Some of the duds you're rocking right now might actually be made out of recycled bottles. -
What's in a Label? Not Enough
May 17, 2016 | The Hill - Congress Blog
By John Replogle, Jeanne Rizzo & Erin Switalski
Call it the dirty not-so-little secret in the cleaning cupboard: When conventional cleaning products are used, they can spread suspected carcinogens, endocrine disruptors, reproductive and developmental toxicants, and other harmful substances throughout your house... -
US EPA Consults on Toxicological Review of TBA
May 17, 2016 | Chemical Watch
The US EPA is seeking public comments on a draft toxicological assessment of tert-butyl alcohol (TBA) for the Integrated Risk Information System (IRIS) programme. -
Essential Water Infrastructure
May 17, 2016 | The Hill - E2 Wire
By Sen. Ben Cardin (D-Md.)
Infrastructure is a technical-sounding word that describes so much that matters in our daily lives. It may sound like something that happens somewhere else, but infrastructure includes our homes and the pipes that bring water to our faucets... -
Updated Proposal Issued on Prop 65 ‘Clear and Reasonable’ Warning
May 17, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has issued further revisions to its proposed reform of how “clear and reasonable” warning is provided under Proposition 65. -
REACH Committee to Dicuss Proposed DecaBDE Restriction
May 17, 2016 | Chemical Watch
The text of a draft Regulation, proposing the restriction of the brominated flame retardant decaBDE, is due to be discussed by the REACH Committee of member state officials on 3 June. -
Both Sides Claim Upper Hand After 'Complete Surprise' from Court
May 17, 2016 | E&E Climatewire
By Ellen M. Gilmer
Opposing sides in the monster litigation over the Obama administration's signature climate rule are busy gaming out any strategic advantage of a federal court's unexpected decision yesterday to delay oral arguments and arrange broader review. -
‘Expect the Unexpected': Obama’s Climate Agenda Hits Another Legal Surprise
May 17, 2016 | Washington Post
By Steven Mufson
The U.S. Court of Appeals for the D.C. Circuit on Monday surprised both sides in the closely watched Clean Power Plan case by deciding to have a full panel of the active circuit judges hear the case — and to postpone the hearing to Sept. 27. -
EIA Models Show Clean Power Plan Would Drive Emissions Cuts
May 17, 2016 | PoliticoPro -Whiteboard
By Alex Guillen
EPA's Clean Power Plan would drive U.S. electricity-related greenhouse gas emissions well below levels the power sector would reach without the carbon rule, according to an early release of two scenarios in the Energy Information Administration's forthcoming... -
(ACC Mentioned) DHS Promotes Industry Standards, Cyber Framework to Boost Chemical Sector's Posture
May 17, 2016 | Inside Cybersecurity
By Joshua Higgins
The Department of Homeland Security has stepped up efforts to help the chemical sector implement the federal framework of cybersecurity standards, while also promoting out new guidance created by the sector’s trade association to help companies... -
Deadly Fertilizer Plant Blast Was Criminal. What Does This Mean for Chemical EHS Rules?
May 17, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A fertilizer plant explosion in Texas that killed 15 people and injured 300 in April 2013 prompted a series of environment, health and safety responses intended to protect people and the environment from future chemical disasters. -
Oil and Gas Slips Through Cracks of New OSHA Rule
May 17, 2016 | E&E Energywire
By Pamela King
A federal regulation aiming to increase reporting of on-the-job injuries and illnesses could be expanded to include oil and gas fields, where workplace death rates are among the highest in the nation. -
Rail Regulator Swamped with Comments on Oil Train Rule
May 17, 2016 | E&E Energywire
By Blake Sobczak
The Federal Railroad Administration will host a public hearing on a rule to require two-person crews for trains hauling crude oil and ethanol, following a request from industry groups and a deluge of comments. -
'Preventable Tragedy': Amtrak 188 and the Case for Positive Train Control
May 17, 2016 | The Atlantic
By David A. Graham
In the aftermath of Amtrak 188’s deadly derailment one year ago, investigators, journalists, passengers, and the public all sought some explanation for how Brandon Bostian, an experienced, skilled, and meticulous engineer, crashed his train in Philadelphia. -
D.C. Circuit Sets Briefing in Suit Over CSAPR as Haze Control
May 17, 2016 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has set a briefing schedule in long-delayed litigation over EPA's 2012 rule allowing states to use their participation in EPA's Cross-State Air Pollution Rule (CSAPR) emissions trading program for power plants... -
States Seek to Bolster Influence On CASAC As Suit Alleges Panel's Bias
May 17, 2016 | InsideEPA
By Stuart Parker
Some state air regulators are criticizing what they see as a lack of state representation on EPA's Clean Air Scientific Advisory Committee (CASAC) that offers input on the agency's ambient air standards, and plan on pushing to add more state officials to the panel...
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(ACC Mentioned) Study Claims Link Between BPA, Obesity in Children
May 17, 2016 | E&E Greenwire
By Sam Pearson
Exposure to a common plasticizer during pregnancy may lead to childhood obesity, according to research published today.
Researchers at Columbia University's Mailman School of Public Health measured urine concentrations of BPA in 369 pregnant women, then checked their children's body fat at age 7.
The researchers also collected urine samples and body fat data from the children at ages 3 and 5.
The study, which was published in the journal Environmental Health Perspectives, found BPA exposure was associated with a higher fat mass index and larger waistlines in 7 year olds. The children also had higher fat levels, the study said.
Dr. Andrew Rundle, an associate professor of epidemiology and co-director of the Obesity Prevention Initiative at Columbia and one of the study's co-authors, said in a statement that BPA's role "may be an important underlying factor in the obesity epidemic."
Though earlier studies have suggested a link between BPA and childhood obesity, the researchers said their study was the first to show an association between BPA exposure during pregnancy and body fat levels in children as they grow older.
A study nearly three years ago by Kaiser Permanente found girls between 9 and 12 years old with high levels of BPA in their urine had twice the risk of being obese than girls with lower levels (Greenwire, June 13, 2013).
In a statement, the American Chemistry Council, which represents companies that manufacture BPA, said the findings were of limited relevance to policymakers.
"The limited and inconsistent findings of this small-scale study do not show that prenatal exposure to BPA puts children 'on a course to obesity,'" said Steven Hentges of the ACC's Polycarbonate/BPA Global Group.
He added, "Statistical associations are not the same as causation, in spite of cleverly worded headlines designed to imply otherwise."
Hentges noted that regulatory authorities in Canada, Germany, the European Union and the U.S. Food and Drug Administration have determined BPA poses no health risks to consumers as currently used.
The research was funded by grants from the National Institutes of Health, U.S. EPA and the National Institute of Environmental Health Sciences.
http://www.eenews.net/greenwire/2016/05/17/stories/1060037392
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(ACC Mentioned) More BPA Exposure as a Fetus Leaves Kids Fatter at Age 7 - NYC Study
May 17, 2016 | Environmental Health News
By Brian Bienkowski
More BPA exposure before birth could mean more body fat and larger waists during early childhood, according to a New York City study released today.
The study, published today in the Environmental Health Perspectives journal, is the first to show this link between fetal exposure to bisphenol-A (BPA) and body fat in children at age 7. While there are a number of factors in obesity—genetics, diet, exercise, disease—the study adds to evidence that environmental chemicals may be playing a role in the health crisis costing the U.S. lives and dollars.
“For years when we thought of obesity we thought of eating and exercise, but we’re learning that it's more complicated than that,” said Kim Harley, associate director of the University of California, Berkeley Center for Environmental Research and Children’s Health.
“There are clues that there are chemicals that also impact later body weight,” said Harley, who was not involved in the current study. "BPA is one we’re really concerned about."
From pregnancy through early childhood, researchers checked the urine and children body sizes of 369 mother-child pairs in New York City. They found that higher exposure to BPA before birth—estimated by looking at the mothers’ third trimester urine—meant the children at age 7 had higher body fat masses and waist sizes.
Researchers did not see an association between body fat and BPA levels in the children themselves at ages three or five. That finding, the scientists said, suggests fetal exposure may be a time of heightened vulnerability to the chemical.
“The prenatal window is a time when there really should be caution exerted for unnecessary exposures,” said lead author Lori Hoepner, an investigator at the Columbia Center for Children’s Environmental Health and assistant professor at SUNY Downstate Medical Center.
Health officials for years have been warning about the child obesity crisis in the U.S. An estimated 17 percent of children and teens aged 2 to 19 years old are obese, according to the U.S. Centers for Disease Control and Prevention.
BPA can leach out of can linings and into the food and studies show that just about everyone has traces of the chemical in their body—researchers believe diet is the major exposure route. Ninety-four percent of the women in this study had the chemicals in their urine.
The study doesn’t prove prenatal exposure to the chemical causes obesity, but BPA—used to make plastic hard and shatterproof—mimics the hormone estrogen and acts as an endocrine disruptor. Properly functioning hormones are crucial to reproduction, as well as development, brain function and immune systems. “Our fat is an endocrine organ and hormonally active,” Harley said. “The fat in our body produces hormones, is regulated by hormones, and hormones tell our body how to lay down fat cells, and regulate our hunger and how we mobilize fat,” she said.
Animal studies have found prenatal BPA exposure linked to offspring obesity.
“When you dose pregnant rats, BPA is associated with increased fat mass in offspring, even later in life. As the offspring reach adulthood, there’s more fat tissue, heavier body weight, and insulin resistance in rats,” Harley said.
Other human studies have found a similar link between BPA exposure and signs of child obesity, but have focused on children’s exposure. The few studies looking at prenatal exposure and children’s body mass have been mixed.
“Some will say the human [research] isn’t completely consistent, but with human health science it often never is,” said said Dr. Leonardo Trasande, an associate professor and researcher at the NYU School of Medicine who was not involved in the study. “We have to decide whether we should act based on the evidence before us. The FDA consistently chooses to not act to limit BPA in food uses, despite bans in baby bottles and sippy cups.”
Trasande pointed to the crushing economic impact of obesity. In a series of papers over the past couple years, he and others have been slapping price tags on health issues due to exposures to endocrine disrupting compounds, including BPA, pesticides and phthalates.
In the U.S. alone, Trasande estimated BPA exposure was linked to more than 12,000 cases of childhood obesity in 2008, along with 33,800 cases of new heart disease, another suspected health impact from exposure. The total cost of that additional obesity and heart disease? An estimated $2.98 billion.
“The type of exposure-response relationship we used in those studies is similar to what they found in this study,” he said, adding that BPA replacements, such as bisphenol-S (BPS), are another area of emerging concern as many seem to have the same endocrine disrupting effects.
The American Chemistry Council, which represents chemical manufacturers, has repeatedly defended BPA's safety. In response to Hoepner's study, Steve Hentges, a representative from the council, said in an emailed response that "statistical associations are not the same as causation, in spite of cleverly-worded headlines designed to imply otherwise" referring to the study's press release.
Industry has long assured the public that BPA breaks down safely in the human body. But last year, in a study of mice, Health Canada researchers reported rather it seems the body transforms it into a compound that might spur obesity.
The exposure-body fat link was a bit stronger in girls than boys in Hoepner’s study, and she said more studies are needed to tease out whether there are different gender vulnerabilities.
Beginning in 1999, researchers have been studying this cohort of mothers and children since the mothers’ third trimester of pregnancy. Hoepner said they would follow the children up to age 18 to see if this effect persists into later childhood and adolescence.
Though the study is not definitive, mothers-to-be should take note, Hoepner said.
“This is one of potentially many exposures, and pregnant women should try to reduce their exposure to BPA,” Hoepner said. “Exposure could be a preventable factor potentially involved in childhood obesity.”
EHN welcomes republication of our stories, but we require that publications include the author's name and Environmental Health News at the top of the piece, along with a link back to EHN's version.
http://www.environmentalhealthnews.org/ehs/news/2016/may/more-bpa-exposure-as-a-fetus-leaves-kids-fatter-at-age-7-nyc-study
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(ACC Mentioned) The Clothes You're Wearing Could Be Made Out Of Plastic Bottles
May 17, 2016 | Newsy
By Katherine Biek
Traditional cotton or linen clothes are so last century. Some of the duds you're rocking right now might actually be made out of recycled bottles.
Yes, some of the plastic bottles you drink out of and recycle are reborn as polyester yarn.
The fiber is called Repreve, and it's made by textile manufacturer in North Carolina.
After recycling your plastic bottles, they're sorted and chopped into minuscule flakes.
The manufacturer turns those flakes into small pellets, which are then melted down and spun into a yarn, ultimately becoming a sustainable fabric.
CNN reports some Repreve fiber is made of 100 percent recycled bottles, while others are mixtures of fiber waste, used fabric and plastic bottles.
You only need five plastic bottles to make a T-shirt out of Repreve fabric, while just seven are required for a pair of pants.
And this year, around 400,000 college graduates received their diplomas in Oak Hall graduation gowns, each made up of 27 bottles.
But you'll need 42 bottles to make the car seats for the Ford Fusion. The automaker had Repreve fabric in five models as of March 2015.
For the past 25 years, Americans have recycled more plastic bottles each year, according to the American Chemistry Council. But consumers still usually just toss the majority of bottles produced.
http://www.newsy.com/team/katherine-biek/
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May 17, 2016 | The Hill - Congress Blog
By John Replogle, Jeanne Rizzo & Erin Switalski
Call it the dirty not-so-little secret in the cleaning cupboard: When conventional cleaning products are used, they can spread suspected carcinogens, endocrine disruptors, reproductive and developmental toxicants, and other harmful substances throughout your house thanks to the stunning variety of chemicals they typically contain.
Testing of the top 20 cleaning products, commissioned by Women’s Voices for the Earth, revealed hidden toxic chemicals such as toluene, 1,4-dioxane, phthalates, chloroform, asynthetic musk, and several known allergens. But because cleaning product companies are not required to disclose ingredients, consumers have no way to know that these chemicals are lurking in the products they use in their homes.
If that’s news to you, you’re in good company. The majority of consumers are blissfully unaware of just what is in their household cleaners because no laws require manufacturers to reveal the ingredients they contain – and under the guise of protecting “trade secrets,” most don’t. That is why the Breast Cancer Fund, Women’s Voices for the Earth, and our advocacy partners have been working for years to advocate for ingredient disclosure in the full range of consumer products and to educate our stakeholders on how to keep their homes toxic free.
Seventh Generation shows the business community that coming clean by disclosing ingredients in cleaning products is also good for business: it has been disclosing its ingredients for over 25 years, and its consumers have responded strongly to that transparency. In a secretive industry that relies on tepid voluntary disclosure programs to create a sense of transparency that’s murky at best, its business model proves that you can be transparent and profitable.
We are teaming up now as part of a coalition of businesses and organizations in environmental health and allied communities to make Congress aware of this problem. We are organizing in support of legislation just introduced by Congressman Steve Israel, the Cleaning Product Right to Know Act, which would require manufacturers to fully list the ingredients cleaning products contain on their label and online.
We believe that honoring the fundamental right to know is the right thing to do by any measure: it’s good for consumers, good for health and the environment, and good for the strength and credibility of business. With the passage of this legislation, consumers will know for the first time exactly what manufacturers put inside every cleaner and be able to make genuinely informed purchasing decisions. We support the Cleaning Product Right to Know Act, and urge every member of Congress to do the same.
John Replogle is CEO of Seventh Generation; Jeanne Rizzo, R.N. is President and CEO of Breast Cancer Fund and Erin Switalski is the Executive Director of Women’s Voices for the Earth
http://thehill.com/blogs/congress-blog/energy-environment/279897-whats-in-a-label-not-enough
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US EPA Consults on Toxicological Review of TBA
May 17, 2016 | Chemical Watch
The US EPA is seeking public comments on a draft toxicological assessment of tert-butyl alcohol (TBA) for the Integrated Risk Information System (IRIS) programme.
This indicates concerns of kidney and thyroid effects, following chronic oral exposure to TBA based on animal studies, and developmental effects observed from short-term exposure to high levels of the substance. The draft assessment also indicates “suggestive evidence” that TBA is carcinogenic to humans.
TBA has a variety of uses, including:
· as a solvent;
· in the manufacture of flotation agents, fruit essences and perfumes;
· as an octane booster in gasoline;
· as a dehydrating agent; and
· as a chemical intermediate in the manufacture of methyl methacrylate.
TBA is also the primary metabolite of methyl tert-butyl ether (MTBE) and ethyl tert-butyl ether (ETBE).
Probable routes of human exposure include inhalation, ingestion and skin or eye contact. Its production for industrial uses may result in releases to the environment.
The chemical will be discussed during a 29-30 June IRIS Public Science Meeting. Topics for discussion include:
· mode of action for thyroid follicular cell tumours; and
· disentangling mechanisms of kidney toxicity and carcinogenicity.
Following the public meeting and the end of the formal consultation – which closes on 15 July – the draft will undergo external peer review, and be revised, to address the latter and public comments. The assessment will then undergo a final EPA internal review and that of other federal agencies.
The final assessment will be posted to the IRIS database.
https://chemicalwatch.com/47416/us-epa-consults-on-toxicological-review-of-tba
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Essential Water Infrastructure
May 17, 2016 | The Hill - E2 Wire
By Sen. Ben Cardin (D-Md.)
Infrastructure is a technical-sounding word that describes so much that matters in our daily lives. It may sound like something that happens somewhere else, but infrastructure includes our homes and the pipes that bring water to our faucets; the roads, trains, buses and bike or pedestrian paths that take us where we need to go; the electricity that fuels our daily lives and our gadget addictions; the transit system that allows goods to move from one place to another and transactions to move at the speed of a click or swipe. Infrastructure matters to our public health and safety, to our families and our communities, to our economy and much more.
For something that is so integral to our daily lives, Americans tend to take their infrastructure for granted. The condition of our transit systems, dams, roads, and wastewater and drinking water infrastructure is nothing short of alarming. We cannot keep pushing off repairs until emergencies hit, whether water main breaks or bridge collapses or train derailments. We underfund and neglect our infrastructure at our own peril.
For years, I have been especially concerned about the deteriorating state of our water infrastructure. Long before Flint, Mich., was seared into the national consciousness, we have been fighting to upgrade our hidden water infrastructure, strengthen drinking water protections and get lead and other contaminants out of our communities.
Nationwide, we now regularly hear of communities facing similarly severe contaminations of their drinking water. In fact, lead has been found in tap water samples from nearly 2,000 water systems across the country.
In Washington, DC, in the early part of the last decade, lead leached into the water of possibly 42,000 children. Nearly a decade ago, every public school in Baltimore shut off their drinking fountains because of lead contamination. They have passed out bottled water ever since.
Though lead contamination in America’s cities is not an uncommon problem, it is a particularly expensive problem. Unfortunately, the amount we as a nation spend on our water infrastructure is woefully inadequate.
Baltimore City currently spends about $450,000 a year to supply bottled water to all but a few of Baltimore’s 180 schools — and it’s estimated that replacing all of the water pipes in a school would be millions of dollars per school.
According to the EPA’s most recent estimates, more than $655 billion is needed to repair and replace drinking water and wastewater infrastructure nationwide over the next 20 years. This comes to $32.75 billion per year, every year, for the next 20 years. Yet we only spend approximately $2 billion per year combined on the drinking water and waste water infrastructure state revolving funds.
It’s more important than ever that we come to an agreement as a nation that there needs to be a substantial increase in the amount of money appropriated for the Clean Water and Drinking Water State Revolving Funds, both of which form the bedrock of our nation’s water infrastructure funding in all 50 states. The stakes could not be higher. The health effects are so severe, our nation’s health experts have declared that there is no safe level of lead in a child’s blood. Zero.
In the Senate, we finally are reporting some progress. The Environment and Public Works Committee recently passed the bipartisan Water Resources Development Act, which contains a number of measures that will make improvements to our nation’s water infrastructure, address dangerous contaminants in our water supply, and strengthen the capabilities of municipalities and the federal government to reply to lead contamination crises.
At the end of the day, just as Americans expect roads and bridges to function safely, we have a right to expect that water coming from our taps is safe to drink and that Congress will do everything within its power to ensure that happens. Every community in America, whether urban, rural, or suburban, needs clean, safe water every day for every resident. Water infrastructure matters and we need to make long-term investments or risk our lives and the lives of our children.Sen. Cardin is a senior member of the Senate Environment and Public Works Committee and Honorary Co-Chair of National Infrastructure Week.
http://thehill.com/blogs/congress-blog/energy-environment/280113-essential-water-infrastructure
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Updated Proposal Issued on Prop 65 ‘Clear and Reasonable’ Warning
May 17, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has issued further revisions to its proposed reform of how “clear and reasonable” warning is provided under Proposition 65.
This third version of the proposal, originally published last November, comes following two comment periods and a public hearing. The November proposal had replaced aprevious rulemaking that had begun in January 2015.
Thirty-two comment letters were submitted in response to the agency’s March draft. In these, a coalition of close to 200 business and trade groups had called the proposal “unworkable” and requested that Oehha issue a new draft.
Changes in the newest version include:
· an amendment to the consumer product exposure warning content, from “this product can expose you to chemicals such as...” to “chemicals including...”;
· replacement of previously proposed text (“for which the person has determined a warning is required”) that commenters had said would introduce a new statutory requirement to “affirmatively demonstrate” that warning is needed;
· minor adjustments to the provision stipulating what supplemental information may be included with a statement;
· revised warning statements for environmental exposures;
· changes to definitions; and
· clarifications on retail sellers’ obligations.
Comments will be accepted until 6 June. The agency has said that it will address all those that are relevant, submitted throughout the rulemaking, in its Final Statement of Reasons.
The deadline for the rule’s adoption is 27 November.
https://chemicalwatch.com/47430/updated-proposal-issued-on-prop-65-clear-and-reasonable-warning
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REACH Committee to Dicuss Proposed DecaBDE Restriction
May 17, 2016 | Chemical Watch
The text of a draft Regulation, proposing the restriction of the brominated flame retardant decaBDE, is due to be discussed by the REACH Committee of member state officials on 3 June.
The proposal would restrict the use and marketing of decaBDE as a constituent of other substances, in mixtures or in articles, in a concentration equal to or greater than 0.1% by weight.
The draft Regulation follows Echa’s Socio-Economic Analysis Committee’s adoption of its final Opinion in September last year, which said the most appropriate way to address the risks posed by the substance was through restriction.
The Commission proposes exemptions for:
· the production and placing on the market of aircraft;
· the production and placing on the market of spare parts for aircraft, motor vehicles within the scope of Directive 2007/46/EC; agricultural and forestry vehicles within the scope of Regulation (EU) No 167/2013; and machinery within the scope of Directive 2006/42/EC;
· articles placed on the market for the first time, before the date of application of the Regulation; and
· electrical and electronic equipment within the scope of the Directive on the restriction of hazardous substances (RoHS) in electrical and electronic equipment because such equipment, containing decaBDE at a concentration about 0.1%, is already prohibited under that Directive.
The draft's proposed exemptions have elicited concern from NGOs. “The law should require labelling of all new articles that contain decaBDE as a result of any exemptions granted,” Joe DiGangi, senior science and technical adviser of the International POPs Environmental Network (Ipen), told Chemical Watch.
This, he said, was critical for the handling of these parts under the UN POPs Convention's obligations related to a product's end of life, and has precedent in the treaty’s listing of HBCD.
The proposed date of adoption is during the second half of 2016.
https://chemicalwatch.com/47426/reach-committee-to-dicuss-proposed-decabde-restriction
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Both Sides Claim Upper Hand After 'Complete Surprise' from Court
May 17, 2016 | E&E Climatewire
By Ellen M. Gilmer
Opposing sides in the monster litigation over the Obama administration's signature climate rule are busy gaming out any strategic advantage of a federal court's unexpected decision yesterday to delay oral arguments and arrange broader review.
The U.S. Court of Appeals for the District of Columbia Circuit yesterday announced that the battle over U.S. EPA's Clean Power Plan will skip customary review by a three-judge panel in June and instead go before the full court in September. Consideration by all active judges -- known as en banc review -- is extremely rare at the D.C. Circuit, and the announcement took many litigants by surprise.
"I think this came as a complete surprise to everybody," said coal industry attorney Jeff Holmstead, who said his phone was flooded with the news as he got off an airplane yesterday. "I can't think of another case where the full court has stepped in on its own before it even went to a panel. That's pretty extraordinary."
The court's move is another twist in a case that has defied the traditional legal track. With emergency requests streaming in from a swarm of states, utilities and other stakeholders, the Supreme Court made an unprecedented decision in February to step in and freeze the Clean Power Plan during D.C. Circuit review.
"When it comes to the Clean Power Plan, it is best to expect the unexpected," industry attorney Scott Segal said in an email.
Opponents of the plan to cut carbon emissions from the power sector say the court's decision is evidence of judicial skepticism toward the rule. Segal, of the Electric Reliability Coordinating Council -- an industry coalition that opposes the rule -- noted that the bar for en banc review is high, requiring that a case be "a question of exceptional importance." Segal says the court's move shows that the rule is well beyond EPA's traditional powers.
"Supporters of the Rule have portrayed the case as essentially a garden-variety administrative law case that can be disposed of by simply citing to agency deference," he said. "It would appear the D.C. Circuit sees it differently."
Holmstead echoed that point, adding that the judges "recognize that this case is about novel issues."
"EPA has argued that this is just another Clean Air Act case," he told EnergyWire. "We know now that the Supreme Court doesn't believe that and that the D.C. Circuit doesn't believe it."
West Virginia Attorney General Patrick Morrisey (R), who is leading more than two dozen states in the legal challenge, tallied the D.C. Circuit's announcement as another step toward victory, saying in a statement that it "confirms our long-held view that the Power Plan is an unprecedented and transformative rule of a kind the states have never seen from EPA.
"EPA advantage?
But supporters of the rule see advantages in the new timeline. The development delays oral arguments until Sept. 27 but may accelerate the case's path to the Supreme Court.
Attorney Sean Donahue, who is representing environmental groups supporting the Clean Power Plan, said the move reflected a pragmatic approach from the court, which likely would have been pressed to hear the case en banc after panel review anyway.
"Obviously we're surprised at this point, but there's a lot of logic to it given where and what the case is, and given the interest in resolving the whole case," he told EnergyWire. "This sort of skips a step, assuming that whoever did not prevail before the panel would at least try to get en banc review."
Natural Resources Defense Council attorney David Doniger agreed, noting that the court's order "may well speed up final resolution of the case." Environmental Defense Fund attorney Tomás Carbonell said in a statement that faster resolution would help address "the urgent threat of climate change to the health and security of communities and families across our nation."
EPA maintained confidence that the court will uphold the rule whenever it hears the case.
"The Clean Power Plan fits squarely within the four corners of the Clean Air Act," spokeswoman Liz Purchia said in a statement. "We are confident we will prevail when the CPP has its day in court."
Party lines
Some backers of the Clean Power Plan were eager to point out the potentially favorable political balance of the D.C. Circuit.
Seven of the 11 active judges on the appellate court were appointed by Democrats -- Presidents Obama and Clinton.
Two of those appointees did not take part in yesterday's decision. Chief Judge Merrick Garland is not handling cases while he is being considered for a seat on the Supreme Court. Judge Nina Pillard also sat out of the decision, though that does not necessarily mean she won't participate in the case this fall.
Even if both recuse themselves, the balance remains tilted toward the left, with five Democratic appointees and four Republican appointees.
John Hanger, an energy policy expert who supported Clean Power Plan compliance while working in the Gov. Tom Wolf (D) administration in Pennsylvania, said he is confident the case will break down on party lines.
"This issue unfortunately is politicized in two ways: It's politicized on global warming, which has been politicized even in the judiciary," he said. "And EPA cases have become politicized within the judiciary."
Given that background, he said, the en banc review likely works in EPA's favor.
"In terms of the full court, this is going to cement the likelihood that the Democratic appointees will carry the day," he said. "In that light, I think this is good news for the Clean Power Plan."
Dorsey & Whitney attorney James Rubin noted that the left wing of the court may present an advantage but that EPA will still have to make a convincing case.
"You could start gaming this out to try to figure out what's better and what's worse," he said. "Now, there's still a distinct majority of Democrat-appointed judges on the court. At the same time, you still have to get a majority of them."
Coal industry lawyer Holmstead argued that, on party lines, the switch to en banc review still works out in the challengers' favor. The panel assigned to hear the case included two Democratic appointees and one Republican. While the object then may have been to win over one of the two liberal-leaning judges, the object now is to bring over one of the five or more Democratic appointees expected to hear the full case -- increasing challengers' odds of success.
But both sides signaled confidence that their arguments would transcend political lines.
"I'm not sure it advantages one side or the other," Holmstead said. "I'm not convinced that it will break down on party lines."
Donahue, the environmental lawyer, made the same argument for his side.
"We think the rule is lawful, and we think the court will reach that result when they review the merits brief and the extensive record," he said. "We don't think that will turn on party lines."
This story also appears in EnergyWire.
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‘Expect the Unexpected': Obama’s Climate Agenda Hits Another Legal Surprise
May 17, 2016 | Washington Post
By Steven Mufson
The U.S. Court of Appeals for the D.C. Circuit on Monday surprised both sides in the closely watched Clean Power Plan case by deciding to have a full panel of the active circuit judges hear the case — and to postpone the hearing to Sept. 27.
Though the circuit court move delays an initial hearing for another four months, in the end a decision by the entire panel of active judges could speed up the appellate process, exclude some of the most conservative judges who are on senior status, and guard against the possibility of gridlock at the Supreme Court where a tie 4-4 vote would leave the appellate court decision intact.
The court’s move is extremely unusual, but is permitted under its procedural rules when a case “involves a question of exceptional importance.”
It is also a recognition of the political sensitivity of the case, in which about two dozen state attorneys general are asking the court to throw out one of President Obama’s main tools in his fight against greenhouse gas emissions.
The plan, proposed by the Environmental Protection Agency, would set guidelines for states to reduce greenhouse gas emissions and would reduce carbon pollution from existing power plants by 32 percent below 2005 levels by 2030.
The lawsuit, which pits a host of states and industry groups against the government and its own dense coterie of state and environmentalist supporters, was scheduled to be heard by a three judge panel on June 2. Even if the D.C. Circuit court had stuck with that plan, it would have been possible for the losing side to ask for a full panel of judges, known as en banc, to hear and reconsider the case.
David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said that “the court’s order may well speed up final resolution of the case. We look forward to our day in court.”
earings by the full circuit include only active judges. Judges who have taken senior status in the case include conservatives like David B. Sentelle and Lawrence H. Silberman. Two judges appointed by Democrats, Cornelia T.L. Pillard and Obama’s Supreme Court nominee Merrick B. Garland, also recused themselves from the case. Garland is trying to win a confirmation hearing in the Senate and Pillard gave no reason. The remaining panel will include five judges appointed by Democrats and four appointed by Republicans.
Tomas Carbonell, director of regulatory policy at the Environmental Defense Fund, which is a party to the case, said that the order for an en banc hearing “will enable the full D.C. Circuit to resolve the legal challenges to the Clean Power Plan immediately and without delay – an especially important development given the urgent threat of climate change to the health and security of communities and families across our nation.”
The circuit court’s order for a full panel of active judges is the latest in a series of unusual steps regarding the case. The Supreme Court issued a stay, freezing implementation of the plan until the courts decide. Such measures are rarely taken before the case even reaches the Supreme Court.
“When it comes to the Clean Power Plan, it is best to expect the unexpected,” said Scott Segal, director of the Electric Reliability Coordinating Council, an industry group. Segal is also a partner at the law firm Bracewell where he has represented utilities and coal companies.
Segal interpreted the order to have a full panel hear the case as a setback for EPA defenders who say the plan falls squarely within the agency’s regulatory power. He said they “have portrayed the case as essentially a garden-variety administrative law case that can be disposed of by simply citing to agency deference. It would appear the D.C. Circuit sees it differently.”
https://www.washingtonpost.com/news/energy-environment/wp/2016/05/17/expect-the-unexpected-obamas-climate-agenda-hits-another-legal-surprise/
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EIA Models Show Clean Power Plan Would Drive Emissions Cuts
May 17, 2016 | PoliticoPro -Whiteboard
By Alex Guillen
EPA's Clean Power Plan would drive U.S. electricity-related greenhouse gas emissions well below levels the power sector would reach without the carbon rule, according to an early release of two scenarios in the Energy Information Administration's forthcoming Annual Energy Outlook 2016.
Using a mass-based strategy to comply with the CPP will take power sector emissions as low as 1,550 million metric tons per year in the 2030s, the decade after the final compliance deadlines, according to EIA. That's lower than the 2005 peak of 2,416 MMT in 2005 and 2015's emissions of 1,891 MMT. Under this scenario, EIA says, coal's share of the fuel mix would fall from 33 percent in 2015 to 18 percent in 2040.
Without the CPP, EIA estimates that emissions in 2030 will total 1,942 MMT, slightly above 2015 levels, but still below 2005 levels. Those emissions reductions are driven by the recent extension of wind and solar tax credits, as well as lower solar and natural gas costs.
In addition to factoring in the CPP and the wind and solar tax credits, EIA's update to its 2015 model incorporates lower near-term oil prices and cheaper renewable energy than it had previously projected.
The full 2016 report, expected this summer, will offer more comprehensive projections that consider a variety of CPP implementation strategies, along with factors such as changes in oil prices and EPA's second phase efficiency rule for heavy-duty trucks.
https://www.politicopro.com/energy/whiteboard
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(ACC Mentioned) DHS Promotes Industry Standards, Cyber Framework to Boost Chemical Sector's Posture
May 17, 2016 | Inside Cybersecurity
By Joshua Higgins
The Department of Homeland Security has stepped up efforts to help the chemical sector implement the federal framework of cybersecurity standards, while also promoting out new guidance created by the sector’s trade association to help companies comply with industry-set standards, according to a source closely involved in the sector's cyber efforts.
DHS has been circulating a guidance document to the chemical sector mapping the National Institute of Standards and Technology cybersecurity framework to the chemical sector, the industry source told Inside Cybersecurity. The DHS mapping document also promotes other industry and government guidelines, including a new guide from the American Chemistry Council integrating the cybersecurity framework to existing self-regulatory standards.
Companies across the chemical sector are using the DHS guidance document, in addition to the NIST framework and ACC guide, to design their own cybersecurity programs and engage board executives on cyber issues, according to the industry source. So far, the industry source said, chemical companies have found the guidance “extremely helpful,” as companies have assessed whether their cybersecurity controls are compliant with the standards set by the ACC “Responsible Care” Security Code.
“ACC members have used the guidance document and the framework to design their own cyber programs,” the source told Inside Cybersecurity. “I know that, even within the chemical industry at the board of directors level, they’ve also adopted the framework to be used as a basis for auditing their own programs.” The new industry guidance, the source said, crosswalks the industry-set Security Code standards – which are a requirement for membership in the ACC – with the NIST framework standards, helping companies better understand and build on their cyber risk management approaches.
The ACC Security Code was established after the 9/11 terrorist attacks and to some extent address chemical sector cybersecurity as well as physical security, the source said. However, the new guide provides chemical companies greater detail and clarity into how they can better assess and manage their cyber risks. The industry guide, completed by the ACC last year, has been distributed to industry as well as officials at DHS and NIST, the source said.
In meetings this month, DHS informed industry stakeholders about the department's own sector-specific framework mapping document and promoted the new industry guide. The new guide adds to industry efforts to streamline cybersecurity standards across the sector. In February, Inside Cybersecurity reported that the sector was working to map the NIST cybersecurity standards with DHS’ Chemical Facility Anti-Terrorism Standards, which are the regulatory requirements for the sector.
http://insidecybersecurity.com/daily-news/dhs-promotes-industry-standards-cyber-framework-boost-chemical-sectors-posture
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Deadly Fertilizer Plant Blast Was Criminal. What Does This Mean for Chemical EHS Rules?
May 17, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
A fertilizer plant explosion in Texas that killed 15 people and injured 300 in April 2013 prompted a series of environment, health and safety responses intended to protect people and the environment from future chemical disasters.
It turns out the blast was intentional.
Despite the numerous EHS violations at the West Fertilizer plant before the deadly ammonium nitrate fire and explosion, a Bureau of Alcohol, Tobacco, Firearms and Explosives investigation last week ruled the fire was a “criminal act” and is offering a $50,000 reward for information leading to the arrest of whomever is responsible. “All viable accidental and natural fire scenarios were hypothesized, tested, and eliminated,” according to an ATF press release.
Probably the most far-reaching response to the West, Texas disaster are the proposed changes to the EPA’s Risk Management Program, which affect facilities that use and distribute hazardous chemicals. The proposed changes would require some facilities to: Consider safer technologies and alternatives by including the assessment of Inherently Safer Technologies and Designs in the Process Hazard Assessment; Conduct third-party audits and root cause analysis to identify process safety improvements for accident prevention; Enhance emergency planning and preparedness requirements to help ensure coordination between facilities and local communities; Strength emergency response planning to help ensure emergency response capabilities are available to mitigate the effect of a chemical accident; Improve the ability of LEPCs (Local Emergency Planning Committees) and local emergency response officials to better prepare for emergencies both individually and with one another; and Improve access to information to help the public understand the risks at RMP facilities.
The public comment period on the proposed changes ended Friday. All of these proposed revisions will beef up chemical process safety, the EPA says. They will also cost companies more time and money. So now the question becomes: will the AFT report, which ruled out accidental and natural causes in the fertilizer plant explosion, have any impact on the final rule?
Judah Prero, an attorney in the environmental group at Sidley Austin LLP, says no. “I personally think it is unlikely that EPA will pull back anything due to the ATF’s findings,” he told Environmental Leader.
Prero says the EPA’s proposed changes will require more time and more money, with no quantifiable return on the investment as far as increased safety goes. He says some of the proposals, such as the third party audits and increased information sharing, actually add security vulnerabilities: bringing in outside auditors who do not necessarily have intimate familiarity with a facility may present a hazard to the inspectors and they might miss something, and sharing sensitive information could present a security risk. The amount of new information that must be generated and then shared also creates a huge potential legal vulnerability if an accident does occur as it provides potential.
“The one area where the ATF report might give EPA some pause is in the area of security and how some of the new information sharing provisions have a security impact,” Prero said.
And, Prero adds, regulatory changes are unlikely to stop with the Risk Management Program. Two other chemical facility safety programs — OSHA’s process safety management standard and the Department of Homeland Security’s Chemical Facility Antiterrorism Standards — are likely to undergo similar changes in the near future, he says. “This means a huge new compliance challenge, in terms of just having personnel be aware of the new requirements, and then with actual implementation and the associated costs.”
Industry should also expect to see an uptick in enforcement activities. New documentation and reporting requirements under the Risk Management Program will make the EPA’s job of finding violations easier, Prero says.
“What will be most important for facilities is for them to be vigilant with safety protocols and measures, and ensuring that all actions taken to ensure safety and to comply with the Risk Management Program are well documented,” he said. “The statistics indicate that since the Risk Management Program was first implemented, accidents have decreased. It is impossible to eliminate all accidents, and clearly most facilities are trying hard to ensure a safe and secure facility is maintained. If and when an accident does occur, the facility must be able to demonstrate that it indeed was an accident, and that proper protocol were in place and followed, the right equipment was used, and employees were appropriately trained. If a culture focused on safety and security is maintained, that will help with Risk Management Program compliance and help the facility should any enforcement issues arise.”
http://www.environmentalleader.com/2016/05/17/deadly-fertilizer-plant-blast-was-criminal-what-does-this-mean-for-chemical-ehs-rules/#ixzz48uvSHNLO
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Oil and Gas Slips Through Cracks of New OSHA Rule
May 17, 2016 | E&E Energywire
By Pamela King
A federal regulation aiming to increase reporting of on-the-job injuries and illnesses could be expanded to include oil and gas fields, where workplace death rates are among the highest in the nation.
The Labor Department's Occupational Safety and Health Administration has changed a rule that directed employers to document injuries and illnesses but didn't require them to send those logs to OSHA. The new rule addresses the record-keeping loophole that made it nearly impossible to accurately assess the day-to-day hazards.
Under the new rule, employers with 250 or more workers or smaller employers in certain industries will electronically submit to OSHA the injury and illness data that they are already required to collect. Still, the new rule doesn't apply to oil and gas drilling, which OSHA hasn't designated as a "high-hazard" industry, according to an agency list of the kinds of work OSHA considers extremely dangerous.
That could change, according to OSHA officials, who acknowledge the industry's high fatality rate suggests the public needs to know more about injuries and illnesses occuring in oil and gas fields.
"[W]e missed them," Mandy Kraft, a spokeswoman in Labor's Office of Public Affairs, wrote in an email. "We are further investigating this at the moment."
To be included on the list, an industry must have a high injury rate, said OSHA chief David Michaels. He has raised concerns that the injury rate for oil and gas appears to be below the rate for most other industries, even though its death rate is "far higher than the national average."
Michaels has attributed the disconnect to a "culture" of oil and gas companies failing to report injuries (EnergyWire, Dec. 3, 2014). In an email yesterday, Michaels said his assessment was based on conversations with oil and gas employers and workers, as well as the contrast between high rates of fatalities and severe injuries and the low rate of injuries recorded on employer logs.
American Exploration & Production Council (AXPC) President Bruce Thompson said he wasn't familiar with Michaels' previous comments on the industry's reporting culture but would take "great issue" with the characterization. Council members -- which include Anadarko Petroleum Corp., Chesapeake Energy Corp. and Occidental Petroleum Corp. -- are dedicated to tracking accidents on their worksites, he said.
"We take the culture of reporting safety and accidents very, very seriously," Thompson said. "This is a critically important element for us."
AXPC submitted a comment on OSHA's proposed requirement in August 2014. The council said certain amendments to the proposed rule only added "complexity to a relatively straightforward well-defined process."
Thompson said yesterday that he was "pleased and surprised" to see that AXPC's members would not be significantly affected by the rule.
"It's nice to have a win occasionally," he said.
OSHA's exclusion of oil and gas from its high-hazard industries list is a symptom of a deeper problem with health and safety data collection, said Peter Dooley, a consultant to the National Council for Occupational Safety and Health.
"The whole trying to characterize high-hazard industries by using available injury data can be a pretty blunt tool in the sense of there's a lot of problems with the current reporting systems and the ways that industries often under-report and complicated by the whole issue of the severity of some injuries in some industries versus others," Dooley said. "This is an example of where often OSHA's attempt to be targeting may not have the best information available to it in order to make those distinctions."
Dooley drew a comparison to OSHA's inspection targeting programs, which rely on self-reported injury and illness rates. If those data are not reliable, he said, they skew the targeting system so that certain hazards never rise to regulatory attention.
OSHA's new reporting requirement is an "important step forward" in addressing that problem, Dooley said.
http://www.eenews.net/energywire/2016/05/17/stories/1060037351
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Rail Regulator Swamped with Comments on Oil Train Rule
May 17, 2016 | E&E Energywire
By Blake Sobczak
The Federal Railroad Administration will host a public hearing on a rule to require two-person crews for trains hauling crude oil and ethanol, following a request from industry groups and a deluge of comments.
The rail safety regulator also announced yesterday it would extend the comment period on the rule, which would make it more difficult for railroads to rely on just one railroad worker to operate a train.
Current federal guidelines don't set any minimum for staffing trains. Two-person crews are most common, and freight railroads have said they will keep at least two employees on "key" trains hauling hazardous materials such as crude.
Nevertheless, new technologies such as positive train control have chipped away at the two-person standard, leading some major railroads such as BNSF Railway Co. to propose using one operator under certain conditions.
The notion has raised hackles among rail workers and their families. In the past two months, hundreds of current and former railroad conductors, brake workers and engineers urged FRA to move forward with its plan to require two-person crews in most circumstances.
The Association of American Railroads joined another rail industry group, the American Short Line and Regional Railroad Association, in requesting a hearing on the subject last month.
In contrast to rail unions, the trade organizations were skeptical of FRA's efforts to regulate a matter that they suggested should be left to collective bargaining between railroads and employees.
"FRA has never before regulated crew consist size ... and as the [notice of proposed rulemaking] acknowledges, there is no empirical basis for starting regulation now," they said.
An AAR spokesman added that the comment period extension would give the group more time to review federal data for a "thoughtful and comprehensive submission" on the subject.
'Common sense'
Rail workers from New York to North Dakota have weighed in on the rulemaking, recounting grueling shifts, snoozing colleagues, heart attacks and near-collisions that all could have played out differently with only one person around to operate the train.
"I don't see how anyone could possibly think one man crews are safe on any railroad except possibly someone that has never worked the road," wrote one commenter, an engineer named Cheryl Huber, who later added, "I don't consider one person a crew."
EnergyWire could not confirm the veracity of anecdotes in the rule's comment section. The lack of concrete data on the safety of one-person train crews has frustrated FRA's attempts to discourage their use, based on edits to rulemaking documents.
Proponents of a one-worker approach have argued that a second employee can be distracting. There's little evidence to back that up in the field -- but there's also scant safety data to the contrary.
In the latest version of its regulatory impact analysis, FRA said railroads have "shown a willingness" to staff trains with just one crew member. But the regulator added that it "does not have a mechanism to collect detailed information about one-person train operations that may be risky," concluding that "there are no safety data available to account for the safety record of one-person crews."
Multiple commenters in favor of two-person crews appealed to what they called "common sense."
"Airlines have two people in the cockpit, so why should railroads be any different[?]" said commenter David Gacek.
He cited a July 2013 oil train derailment and explosion in Lac-Mégantic, Quebec, that killed 47 people just months after the railroad earned approval to use one person aboard its trains.
"The train that blew up in Canada was with a one-man crew and we cannot allow something like this to happen here in the United States," Gacek said.
Canada has since passed its own rule to make two-person crews mandatory for trains hauling hazardous goods.
http://www.eenews.net/energywire/2016/05/17/stories/1060037345
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'Preventable Tragedy': Amtrak 188 and the Case for Positive Train Control
May 17, 2016 | The Atlantic
By David A. Graham
In the aftermath of Amtrak 188’s deadly derailment one year ago, investigators, journalists, passengers, and the public all sought some explanation for how Brandon Bostian, an experienced, skilled, and meticulous engineer, crashed his train in Philadelphia. Had there been a mechanical failure? Was Bostian too tired, or impaired for some reason, to concentrate? Had he been speaking on a cellphone? Was the locomotive hit by rocks?
But the National Transportation Safety Board, in findings revealed Tuesday morning, has concluded the cause of the crash was far simpler: Investigators believe Bostian was distracted by radio traffic about rocks striking another train at the worst possible moment, leading him to run the train far too fast through a curve and derail. NTSB Chairman Christopher Hart used that conclusion to make an impassioned call for full implementation of Positive Train Control, a technological fail-safe that’s intended to prevent collisions and derailments.
“An engineer who is not fatigued, distracted, or impaired is not infallible on their best day,” Hart said. “Our investigation is to see whether the engineer was backstopped by safety technology such as PTC, or positive train control. At the time of the accident, PTC was not implemented on the portion of track where the derailment occurred. If a PTC system has been active, this treatment not have derailed. Close to 200 passengers would not have been injured and 8 other passengers would still be alive today.”
The NTSB released a huge tranche of documents in the public docket for the case in February, but offered little in the way of conclusions about the cause of the accident.
The theory that Bostian might have been affected by rocks hitting the train emerged early on. There’s a logic to it: Trains are often struck by rocks, especially in the urbanized corridors of the Northeast. Besides, another train—a regional Philadelphia SEPTA train—had been “rocked” the same evening, and Amtrak 188 passed that train where it had pulled off, in part because the engineer had been injured by glass after being struck. NTSB concluded that though the windshield of Amtrak 188’s locomotive was cracked, the train had not been rocked.
Instead, Bostian was distracted by the radio traffic concerning the SEPTA train, which apparently prevented him from throttling down at a crucial moment. The area where Amtrak 188 derailed features several stretches where a train speeds up and slows down, but instead of slowing down when it should have, the train sped up to 106 miles per hour just before derailing. Investigators speculated that though Bostian knew the route well, his distraction might have led him to believe he had already passed the curve, so that he sped up too soon.
Bostian remains an enigma—the tragic figure at the center of the disaster. He cooperated with investigators, and reported having no memory of the time leading up to the crash, though the NTSB reported that the engineer had been moving the throttle during that stretch. He was concussed in the accident. Obsessed with trains since his childhood, Bostian had worked to achieve his dream job as engineer. Colleagues interviewed after the crash recalled him as an excellent engineer, toxicology tests came back negative, and his phone was turned off at the time of the derailment. The train was on time, and there was no indication that Bostian was trying to make up for lateness, a factor in some legendary train wrecks.
While the NTSB ruled out mechanical failure as a cause for the crash, it also found that windows on the train popped out, and that if the windows had remained in place, some passengers would not have been ejected, and might not have been as badly injured.
The fact that an engineer like Bostian could be at the controls for a horrific accident is chilling, but as Hart noted, it’s not the only case. There were deadly rail crashes in California in September 2008 and the Bronx in December 2013, both of which would likely have been avoided by PTC. In total, NTSB has calculated that PTC would have prevented 145 accidents since 1969, in which 288 people were killed and nearly 6,600 were injured.
Amtrak has since implemented PTC on the stretch in Philadelphia where the crash occurred, as well as throughout most of the Northeast Corridor. Generally, however, the United States has been slow to adopt the technology. In 2008, Congress mandated that every railroad with intercity passenger service, commuter service, or hazardous materials install PTC by the end of 2015. But railroads have pushed back on the mandate. Amtrak, which is perpetually strapped for cash, said it could not afford to meet the deadline. Commercial railroads have lobbied aggressively against the deadline as well, and late last year Congress agreed to extend the timetable by at least three years, to the end of 2018.
“As we discussed our findings regarding this preventable tragedy, let us keep in mind the deadline that matters is not 2018. It is not some later date made possible by a conditional extension,” Hart warned on Tuesday. “The deadline that really matters is the date of the next PTC-preventable tragedy.”
As the board voted on conclusions, in fact, Vice Chair Bella Dinh-Zarr, citing the importance of PTC, suggested relegating engineer error from the probable cause of the accident to contributing cause, while naming the lack of PTC as the probable cause. NTSB staff, however, opposed the switch, as did Hart, noting that the engineer is still responsible for following rules and that PTC is a safety net; Dinh-Zarr’s attempt was defeated.
That minor disagreement aside, the takeaway from the NTSB hearing was the importance of the new technology. But as Dinh-Zarr pointed out, NTSB has been advocating for PTC since 1970. So far, neither railroads nor regulators are listening closely.
http://www.theatlantic.com/national/archive/2016/05/amtrak-188-and-the-case-for-positive-train-control/483102/
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D.C. Circuit Sets Briefing in Suit Over CSAPR as Haze Control
May 17, 2016 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has set a briefing schedule in long-delayed litigation over EPA's 2012 rule allowing states to use their participation in EPA's Cross-State Air Pollution Rule (CSAPR) emissions trading program for power plants as an alternative to plant-specific pollution controls to curb regional haze.
In Utility Air Regulatory Group (UARG) v. EPA, industry groups and conservationists are challenging EPA's determination that emissions trading under CSAPR is environmentally better than applying best available retrofit technology (BART) to power plants.
The D.C. Circuit recently moved the case out of abeyance, following the conclusion of litigation against CSAPR that resulted in the rule being largely upheld by both the appeals court and the Supreme Court, with the exception of some specific state emissions caps, or “budgets,” which EPA must reconsider.
Under the court's May 17 order, opening briefs in the case are now due Aug. 30, with EPA's response due Nov. 28, and final briefs due Feb. 24.
EPA's regional haze program aims to restore visibility in national parks and wilderness areas to natural conditions by 2064. The first phase of the program, now coming to a conclusion, required states to submit state implementation plans (SIPs) showing, among other requirements, which facilities qualify for BART and setting BART according to an EPA-approved “five-step” formula.
As part of the regional haze program, EPA said that states in crafting SIPs could avoid imposing specific pollution controls on power plants by instead citing their participation in CSAPR. The original CSAPR air trading program was intended to help states meet the less-stringent 1997 ozone NAAQS expressed as 84 ppb, in addition to particulate matter (PM) standards, but EPA has proposed no update to the PM components of the rule.
The agency has since proposed a CSAPR “update” rule, released Nov. 16, to both satisfy the D.C. Circuit's remand of budgets and to gear the rule to meet the more-recent 2008 ozone national ambient air quality standard (NAAQS) set at 75 parts per billion (ppb).
Industry groups in public comments on EPA's 2012 rule argued that EPA's “better than BART” rule makes pollution cuts that go deeper than required to meet haze program goals, and wrongly invalidated existing SIPs based on the earlier trading program, the Clean Air Interstate Rule, which was then remanded by the D.C. Circuit pending the issuance of CSAPR as a replacement.
However, environmentalists say that offering any emissions trading program as an alternative to site-specific controls is unlawful and risks creating pollution hot-spots that harm visibility in national parks.
The National Parks Conservation Association, intervening in the UARG case, has said emissions trading is not an acceptable choice, because plants can comply by buying credits rather than reducing pollution.
http://insideepa.com/news-briefs/dc-circuit-sets-briefing-suit-over-csapr-haze-control
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States Seek to Bolster Influence On CASAC As Suit Alleges Panel's Bias
May 17, 2016 | InsideEPA
By Stuart Parker
Some state air regulators are criticizing what they see as a lack of state representation on EPA's Clean Air Scientific Advisory Committee (CASAC) that offers input on the agency's ambient air standards, and plan on pushing to add more state officials to the panel while conservative groups pursue a new suit claiming bias on a CASAC panel.
The push-back from states and the conservative groups highlights increasing attacks on the independence of CASAC, which includes non-EPA scientists, engineers, academics, industry, federal, state and other representatives appointed by the agency administrator for a term of three years that can be extended another three years.
“EPA chooses them for their demonstrated ability to examine and analyze environmental issues with objectivity and integrity and for their interpersonal, oral and written communication, and consensus-building skills,” says the agency's website. Current members of the chartered CASAC include representatives from universities, the Electric Power Research Institute, the Northeast States for Coordinated Air Use Management (NESCAUM), and elsewhere.
The Association of Air Pollution Control Agencies (AAPCA), representing several states, is now claiming that CASAC's membership should place greater emphasis on states that have to implement EPA's national ambient air quality standards (NAAQS) such as its particulate matter (PM) limit and recently tightened ozone standard.
AAPCA research fellow Cassandra Yannelli at an April 28 meeting in Columbia, SC, released results of a survey that said states feel underrepresented on the CASAC historically, despite a Clean Air Act requirement that the committee include at least one state representative. AAPCA's members are Alabama, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Nevada, North Carolina, North Dakota, Ohio, South Carolina, Tennessee, Texas, Virginia, West Virginia and Wyoming. But Yannelli contacted all states for her survey, not just AAPCA members.
From 2009 to the present, the chartered CASAC has contained only one representative of a state air regulatory organization, George Allen of NESCAUM, a Northeast regional regulators' body, Yannelli found. Allen has also been the only state representative on the influential CASAC ozone panel, she said.
CASAC forms panels larger than its seven-member federally-chartered group to formulate policy advice on how EPA should set NAAQS for the six “criteria” pollutants, such as a panel for the PM NAAQS that conservative groups are suing over. While EPA does not have to precisely follow the committee's advice, it must justify a departure from the advice in its NAAQS rules should it choose to set standards at odds with the panel's guidance.
Under the air law, EPA must review NAAQS every five years, and CASAC must offer advice on the agency's science underpinning decisions on the health protectiveness and environmental benefits of NAAQS.
Yannelli found that 69 percent of survey respondents disagreed that CASAC is “fairly balanced in terms of the points of view represented and the functions performed by the advisory committee,” and that 65 percent found the committee and its subpanels to be unbalanced in its geographic representation. EPA's detractors have long argued that CASAC mostly represents the coasts and not more conservative states in the South and Midwest.
CASAC Nominations
Both AAPCA and Senate Environment & Public Works Committee Chairman Sen. James Inhofe (R-OK) have written to EPA asking the agency to extend its existing deadline for nominations to the chartered CASAC beyond May 6, saying more time is necessary for submitting nominations that would reduce the panel's alleged bias.
Critics of EPA's selection process for CASAC say that it lacks transparency, and that EPA tends to select experts who reflect its policy preferences.
But an AAPCA source says that to date, EPA has not said it will extend or reopen the nominations process, and the process therefore appears closed. “EPA has indicated that they are still waiting to make a decision on our request to extend the comment period, although, as of today, the nomination process has been closed on the CASAC [website] since the original deadline of May 6,” the source says.
AAPCA still wants more input on the nomination process, the AAPCA source says, adding that states can offer invaluable expertise on setting the NAAQS.
“We are intending to argue that experts nominated from our state agencies represent the high levels of competence, knowledge, and expertise necessary to provide advice to the [EPA] Administrator on scientific and technical aspects of air quality criteria and the NAAQS. Furthermore, we believe that these experts possess key on-the-ground Clean Air Act experience that would benefit CASAC and satisfy EPA’s interest in geographic, educational, and professional diversity,” the source says.
“In addition to weighing in on the nomination process, AAPCA is also developing a series of resources to help state and local environmental agencies engage with CASAC and other EPA advisory committees in the future and remove some of the barriers to active participation,” the source says. Yannelli's survey lists “lack of time to serve,” “lack of expertise” and “low likelihood of being selected” as such barriers.
Sources say that among the nominees EPA is currently considering are Michael Honeycutt, director of toxicology with the Texas Commission on Environmental Quality (TCEQ), a frequent critic of EPA's ozone science who was nominated by TCEQ Chairman Bryan Shaw; Jim Boylan, program manager at the Georgia Department of Natural Resources' Air Protection Branch; and Craig Butler, director of Ohio EPA.
EPW sources say that the agency is still considering its response to Inhofe, who in an April 29 letter to EPA requested a 30-day extension of the deadline.
An EPA spokesman did not return a request for comment by press time.
Pending Lawsuit
Meanwhile, in a lawsuit filed May 13 in the U.S. District Court for the District of Columbia, conservative groups Energy and Environment Legal Institute and Western States Trucking Association challenge EPA's Nov. 17 appointment of members to its CASAC PM review panel.
The groups claim EPA has violated Administrative Procedure Act and Clean Air Act requirements, asking the court to make a finding that the panel is unlawfully constituted and “to further enjoin the EPA from holding the scheduled May 23, 2016 meeting of the CASAC PM Panel with its current composition.”
The lawsuit alleges that the panel is not independent of EPA, as required by statute, because 22 of the 26 members were “principle investigators” in scientific research funded by the agency. Further, some of these scientists would have to at some point review their own research, which the conservative groups say is a clear conflict of interest that would result in biased NAAQS reviews.
“The vast majority of appointees cannot undertake an independent analysis of the data because they are authors of some of the data and are naturally going to place greater importance on their own work or work that is consonant with their own work,” the groups say in their lawsuit.
Although the conservative groups are pursuing litigation alleging bias on the CASAC panel, the AAPCA source says that the state group -- for now -- is not considering similar legal challenges over states' representation on the committee.
“We are not currently planning additional letters or legal action, although the responsibilities of CASAC in the NAAQS-setting process has been an issue raised by state petitioners on the 2015 ozone NAAQS,” the source says, referring to the challenge by industry and environmentalists to EPA's Oct. 1 ozone NAAQS, set at 70 parts per billion (ppb), tougher than the prior limit of 75 ppb.
In Murray Energy Corporation v. EPA, now pending before the U.S. Court of Appeals for the District of Columbia Circuit, industry and some states are challenging the new NAAQS as being too tough, while environmentalists say it is too weak.
http://insideepa.com/daily-news/states-seek-bolster-influence-casac-suit-alleges-panels-bias
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