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Industry and Association News

New Tariff Relief Law Will Benefit Chemical Manufacturers
May 24, 2016 | Chemical & Engineering News
By Glenn Hess

President Barack Obama on May 20 signed legislation that will provide tariff relief to U.S. chemical producers that import raw materials and intermediate products.

Chemical Management News

(ACC Mentioned) House Passes Sweeping Chemical Safety Bill
May 24, 2016 | The Wall Street Journal
By Alexandra Berzon and Amy Harder

The House on Tuesday overwhelmingly approved new chemical safety rules designed to overhaul federal regulation covering thousands of chemicals in daily use, a rare bipartisan action in a year when Congress is torn by presidential politics.
(ACC Mentioned) House Passes Chemical Safety Law Reform
May 24, 2016 | Environmental Leader
By Jessica Lyons Hardcastle

The US House of Representatives today approved new chemical safety rules that will overhaul the outdated Toxic Substances Control Act (TSCA). It passed 403 to 12.
House Passes Chemical Reform Bill on 403-12 Vote
May 25, 2016 | BNA Daily Environment Report
By Pat Rizzuto

On a 403-12 vote, the House approved legislation May 24 that would give the Environmental Protection Agency more authority to evaluate and control the nation's industrial chemicals.
TSCA Reform Bill Heads to Senate After Clearing House
May 24, 2016 | Chemical Watch

The US House of Representatives has passed a final negotiated bill to reform the Toxic Substances Control Act (TSCA).
House Passes Chemical Safety Overhaul
May 24, 2016 | The Hill - E2 Wire
By Timothy Cama

The House on Tuesday voted overwhelmingly to pass an overhaul to the nation’s chemical safety standards for the first time in four decades.
Overnight Energy: House Approves Chemical Reform Deal
May 25, 2016 | The Hill - E2 Wire
By Timothy Cama and Devin Henry

The House voted overwhelmingly Tuesday to pass a sweeping bipartisan compromise chemical reform measure after years of legislative work, negotiations and wrangling.
House Approves Compromise TSCA Bill
May 25, 2016 | PoliticoPro - Whiteboard
By Darren Goode

House lawmakers today passed compromise legislation to overhaul a 40-year-old chemical safety law, with the Senate expected to quickly follow suit this week.
House Passes TSCA Legislation; Senate Up Next
May 25, 2016 | E&E Daily
By Sam Pearson

House lawmakers easily passed bipartisan legislation to update the nation's chemical safety law by a vote of 403-12 yesterday, leaving the measure just days away from potentially reaching President Obama's desk.
Shimkus on ‘Historic' Agreement on Chemical Reform
May 25, 2016 | BNA Daily Environment Report

Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Subcommittee on Environment and the Economy, has taken the lead in ushering through Congress the first update of the Toxic Substances Control Act in 40 years.
The TSCA Amendments Simplified: Nine Key Features of the New Law and Three Compromises That Will Affect Business
May 25, 2016 | BNA Daily Environment Report
By Lawrence E. Culleen

Lawrence Culleen is a partner in the Washington, D.C., office of Arnold & Porter LLP. Prior to joining A&P, Culleen held several management positions at EPA including Chief of the New Chemicals Branch implementing Section 5 of TSCA.
Congress Must Pass Overhaul to Outdated Chemical Regulations
May 24, 2016 | The San Francisco Chronicle

Congress may not agree on much these days, but this week’s badly needed update to the Toxic Substances Control Act appears to be a rare exception.
House Sets Stage to Tighten Oversight of Household Chemicals
May 24, 2016 | US News & World Report
By Alan Neuhauser

The first major update to the nation's toxic chemicals law in four decades passed the House by a sweeping margin Tuesday.
New TSCA Bill Falls Short Of Protecting Americans From Toxic Chemicals
May 24, 2016 | Environmental Working Group
By Melanie Benesh and Scott Faber

While the new version of the Toxic Substance Control Act, or TSCA, that is likely headed to President Obama’s desk includes some important improvements, the bill falls short of adequately protecting Americans from exposure to hazardous chemicals.
Will Congress End the Era of Unlimited, Untested Chemicals and Reform TSCA?
May 24, 2016 | EcoWatch
By Elizabeth Thompson

Like all Americans of my generation, I came of age in a sea of industrial chemicals. From the stain-resistant carpeting under my feet and the plastics of the computer I’m typing on, to the clothes I’m wearing, industrial chemicals are used in most every consumer product you can think of.
One Step Forward and Two Steps Back on Toxic Chemicals
May 24, 2016 | Huffington Post
By Rena Steinzor

Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry.
Environmentalists: Toxic Substances Bill Would Hurt New York
May 24, 2016 | News 12 Long Island

Congress is considering legislation that some environmentalists say would seriously hamper New York state's efforts to protect public health, air, land and groundwater.

Energy News

House $32B Interior-EPA Bill Would Block Obama Initiatives
May 24, 2016 | E&E - Greenwire
By Sean Reilly, Amanda Reilly and Phil Taylor

Republican House appropriators today debuted a fiscal 2017 spending bill for the Interior Department, U.S. EPA and the Forest Service that would generally keep funding at close to this year's levels but again target key Obama administration regulatory initiatives.
House GOP FY17 Bill Blocks Major EPA Rules But Avoids Large Funding Cuts
May 24, 2016 | Inside EPA
By David LaRoss

House Republicans are floating a fiscal year 2017 funding bill for EPA that would block a host of major agency regulations including its climate rules for the power and oil and gas production sectors as well as its Clean Water Act (CWA) jurisdiction rule, but the legislation would make only slight cuts to EPA's overall funding levels.
House Bill Would Cut EPA Funds, Limit Rules
May 25, 2016 | BNA Daily Environment Report
By Brian Dabbs

The Environmental Protection Agency would receive close to $8 billion in fiscal year 2017 funding, about $164 million less than current levels, under a House Republican appropriations bill for Interior, Environment and Related Agencies released May 24.
Some Programs Would Grow Even as House GOP Seeks EPA Cuts
May 25, 2016 | E&E Daily
By Sean Reilly

Two U.S. EPA grant programs would double in size next year even as the agency's overall budget would shrink under the fiscal 2017 spending bill unveiled yesterday by House Republican appropriators.
House Rules Committee Votes to Expand Energy Bill
May 25, 2016 | BNA Daily Environment Report
By Ari Natter

The House Rules Committee voted May 24 to add drought legislation and a slew of other bills opposed by Democrats and the Obama administration to broad House-passed energy legislation that is headed to conference with the Senate.
Activist Groups Urge House to Reject Expanded Energy Bill
May 24, 2016 | BNA Daily Environment Report
By Ari Natter

The Sierra Club, Friends of the Earth and 30 other environmental groups are urging lawmakers to reject an expanded version of House energy legislation being considered by the House Rules Committee.
Challengers Seek to Delay Suit Over Carbon Rule for New Plants
May 24, 2016 | PoliticoPro - Whiteboard
By Alex Guillen

The states and groups challenging EPA's carbon rule for new power plants have asked the court to push back briefing, a delay that could add several months to the proceedings.
Foes of New Source Rule Plot Additional Line of Attack
May 24, 2016 | E&E News PM
By Robin Bravender

Groups challenging U.S. EPA's greenhouse gas rules for new power plants said today that they are planning to attack on another legal front.
Cantwell Underwhelmed by Revised House Bill
May 25, 2016 | E&E Daily
By Geof Koss

A key Senate Democrat is expressing a decidedly cool view of the House's revised energy reform bill, which lawmakers are likely to vote on this week ahead of a conference committee to merge versions from each chamber.
House Begins Consideration of Energy, Water Spending Bill
May 25, 2016 | BNA Daily Environment Report
By Ari Natter

The House began consideration of a $37.4 billion energy and water spending bill that would block the Clean Water Rule among other policy riders May 24 despite a looming veto threat by the Obama administration.
Partisan Amendments Surface to Energy and Water Bill
May 24, 2016 | E&E News PM
By George Cahlink

Amendments to remove policy riders and add limitations to administration dealings with Iran will emerge as the House begins work on its $37.4 billion fiscal 2017 energy and water spending bill later today.
Tuesday: Energy, Labor Rule
May 24, 2016 | The Hill - Floor Action
By Jordain Carney

The House will debate a package of energy bills Tuesday, including starting discussions on its energy and water appropriations legislation.

Chemical Security News

EPA Defends Facility Safety Rulemaking Process From Lawmakers' Attacks
May 24, 2016 | Inside EPA
By Dave Reynolds

EPA is defending from Republican lawmakers' attacks its process for developing a proposed overhaul of its facility safety program, rejecting GOP requests to delay the rulemaking in order to allow more time for critics to weigh in on the proposal and downplaying claims that the policy will impose unfunded mandates on emergency responders.

Transportation News

After Derailment, NTSB Blames the Engineer, Not Amtrak
May 25, 2016 | Roll Call
By Joshua Gotbaum

This week I learned that railroad barons still have power: they have successfully resisted safety measures that have for decades been standard for airlines and other transportation.

Environment News

Water Rule Challenge Stayed in North Dakota District Court
May 24, 2016 | BNA Daily Environment Report
By Amena H. Saiyid

A federal judge in North Dakota today stayed all proceedings in a lawsuit over the Clean Water Rule until the U.S. Circuit Court of Appeals for the Sixth Circuit finishes its review of challenges to the rule.
EPA Staff, Academics Weigh Role Of Ozone 'Exposure' In NAAQS Debate
May 24, 2016 | Inside EPA
By Stuart Parker

As EPA and states move to implement the agency's new, tougher ozone national ambient air quality standard (NAAQS), agency staff and air quality researchers are debating how to differentiate personal "exposure" to ozone which could be many times less than levels of the pollutant in ambient air would otherwise suggest.

Industry and Association News

New Tariff Relief Law Will Benefit Chemical Manufacturers

May 24, 2016 | Chemical & Engineering News

By Glenn Hess

President Barack Obama on May 20 signed legislation that will provide tariff relief to U.S. chemical producers that import raw materials and intermediate products.
“With 80% of specialty chemical manufacturers importing raw materials for which there is no domestic source, this bill is a huge deal,” says William E. Allmond IV, vice president of government and public relations at the Society of Chemical Manufacturers & Affiliates. This industry group represents mainly small and medium-size chemical companies.
The legislation, called the American Manufacturing Competitiveness Act, lays out a new process for compiling what is called a miscellaneous tariff bill, a massive duty-cutting measure.
In the past, lawmakers would combine hundreds of duty suspension bills they introduced at the request of home-state manufacturers to create a single miscellaneous tariff package. The noncontroversial legislation would routinely pass with little or no opposition.
But that practice ended when Republicans in the U.S. House of Representatives began a moratorium on earmarks in late 2010. Duty suspensions were treated as earmarks because they generally benefit only a few companies.
The last miscellaneous tariff bill passed by Congress expired at the end of 2012. Since then, many chemical makers, along with other U.S. manufacturers, have been paying substantially higher import tariffs on essential inputs.
“Right now, we would have more than $5 million in duty savings from expired and new duty suspensions,” says Steve Schmidt, vice president of Sun Chemical. Noting that his company competes against makers of imported pigments from China and India, Schmidt says tariff waivers “help us keep our raw material costs lower to be more competitive.”
The new law gets around the ban on earmarks by requiring companies to submit their waiver proposals to the U.S. International Trade Commission, rather than lobbying individual members of Congress for tariff relief.
The independent agency will vet the requests to ensure there is no domestic manufacturer of the imported product before sending its recommendations to Capitol Hill. Lawmakers will then draft a miscellaneous tariff bill, which can exclude ITC-recommended products but cannot add new ones.
The new process is expected to be in place by October, when ITC will begin accepting petitions.
http://cen.acs.org/articles/94/i22/New-tariff-relief-law-benefit.html

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Chemical Management News

(ACC Mentioned) House Passes Sweeping Chemical Safety Bill

May 24, 2016 | The Wall Street Journal

By Alexandra Berzon and Amy Harder

The House on Tuesday overwhelmingly approved new chemical safety rules designed to overhaul federal regulation covering thousands of chemicals in daily use, a rare bipartisan action in a year when Congress is torn by presidential politics.
Trade groups representing Dow Chemical Co., DuPont Co. and others pushed for the legislation as states, and even large retailers like Wal-Mart Stores Inc.,Lowe’s Cos., and Target Corp., were stepping in with their own, sometimes far-reaching rules over concerns about chemical safety.
The bill, the first significant update to federal chemicals safety law in 40 years, is expected to be passed by the Senate as soon as this week and signed into law by President Barack Obama. It passed 403 to 12.
It gives the Environmental Protection Agency authority to evaluate and impose restrictions on chemicals used in everything from dry-cleaning to grease removal to paint thinners. In most cases, that authority pre-empts states from passing laws to regulate a chemical while the EPA is making its determination.
The bill mandates only that the EPA begin with a review of 10 chemicals and eventually have 20 chemicals under review at a time. The reviews could take several years, according to policy experts.
Some environmental and chemical safety groups pushed for more chemicals to be reviewed at a time, arguing that it will take far too long for the EPA to get through a hefty backlog at the initial rate. Still, they say, the proposed law is significant because there have been essentially no new restrictions placed on existing chemicals in decades.
“The pace is something that is disappointing,” said Andy Igrejas, a chemical safety advocate leading a coalition of health, environmental and labor organizations. “But it is still meaningful because if 20 of the worst chemicals and their public exposure were really reduced, that’s millions and millions of people potentially protected. That’s something.”
The existing law, called the Toxic Substances Control Act, or TSCA, has made it almost impossible for the government to control certain substances. The law has directed the EPA to consider the financial cost of regulation when evaluating a chemical, making it hard to restrict even substances known to be dangerous at any level, such as asbestos.
The TSCA update passed the House overwhelmingly largely because it was supported by some environmentalists and the chemical industry, which is eager for a unified national regime rather than the current patchwork of state regulations.
“This critical legislation will strengthen and modernize the Toxic Substances Control Act, our nation’s primary means for regulating chemicals,” said Dow Chemical in a statement on Tuesday.
Cal Dooley, chief executive of the American Chemistry Council, said his group supports the new bill because it creates a nationwide regulatory system.
Mr. Dooley said consumers looked to the EPA to provide guidance on chemical safety, but the agency hasn’t had sufficient authority to do so.
“We were seeing an increasing decline in public confidence on the Environmental Protection Agency assessment on the safety of chemicals in the products that families use every day,” Mr. Dooley said.
Chemical manufacturers together will pay up to $25 million in fees or 25% of the program costs a year for the reviews, which also will be funded by mandated minimum appropriations from Congress. In addition, companies will pay for any reviews that they specifically request of the EPA, and will be charged for testing required by the EPA, which could cost anywhere from thousands of dollars a year to millions, said an ACC spokeswoman.
The trade group hasn’t done an economic analysis of the impact of the bill, said the spokeswoman. Companies were adversely impacted from not having the regulations in place, since retailers were refusing to stock certain chemicals, she said.
“Our hope is that by giving retailers and consumers greater confidence in the safety of chemicals they will feel more confident in the products,” the ACC spokeswoman said.
Retailers have been moving to restrict or bar products containing chemicals that are facing challenges by consumer advocates due to safety concerns or that are regulated in other countries. Nearly 30 states, led by California, have passed more than 100 laws regulating chemicals.
Target has been rating products based on the chemicals they contain and offered suppliers incentives, such as better display in its stores, for products it deemed safer. Toys “R” Us Inc. stopped selling bottles and other products containing bisphenol-A, a common ingredient in certain plastics that some studies linked to hormonal anomalies in animals. Studies funded by industry groups have found BPA in products to be safe.
The legislation is the product of months of negotiations across party lines and across the Capitol, with everyone from Sen. James Inhofe (R., Okla.), to House Minority Leader Nancy Pelosi (D., Calif.), backing the bill.
Mrs. Pelosi, in a statement with other Democratic leaders, said the bill “grants EPA with significant new authority to protect the public from unsafe toxic chemicals.” Rep. Steve Scalise (R., La.), the House majority whip, said the bill would strengthen domestic manufacturing.
The White House issued a statement Monday describing the bill as a “historic advancement for both chemical safety and environmental law.”
Some environmental and consumer advocates have also backed the bill, though others say they are still concerned that it will prevent states from taking tougher actions.
“It is fixing a terrible law that never really worked,” said Richard Denison, a chemical safety expert at the Environmental Defense Fund. “It’s being done in a pretty divided Congress with a lot of anti-EPA sentiment, and yet it is a strong bill. On every major metric it is a significant improvement over the current law.”
The EPA has already set a priority list of about 100 chemicals to be regulated, including those commonly found in dry-cleaning products, grease removal, paint strippers and flame retardants.
Although there was, in recent years, general agreement between Republicans and Democrats and between industry and environmental groups on the basic need for more chemical regulation, the issue of whether and how to pre-empt states from passing their own restrictions became a key sticking point.
Under a compromise measure announced last week, states will have some time to pass their own interim rules while the EPA is considering a chemical for regulation and will be able to apply for a waiver. Previous state chemical regulations would be grandfathered.
Some environmentalists and consumer advocates remain concerned that the bill puts too much burden on the EPA to justify restrictions, and that it removes too much authority from states that want to pass their own bills.
Ken Cook, president of the Environmental Working Group, indicated that some consumer campaigns will likely continue even after the law is passed.
“Because this law will not strongly and urgently address the problem of toxic chemical exposure, increasingly consumers will act to protect themselves,” Mr. Cook said in a statement.
http://www.wsj.com/articles/house-passes-sweeping-chemical-safety-bill-1464125287

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(ACC Mentioned) House Passes Chemical Safety Law Reform

May 24, 2016 | Environmental Leader

By Jessica Lyons Hardcastle

The US House of Representatives today approved new chemical safety rules that will overhaul the outdated Toxic Substances Control Act (TSCA). It passed 403 to 12.
The Senate is expected to approved the bill this week. President Barack Obama has said he will sign the chemical safety bill — called the Frank R. Lautenberg Chemical Safety for the 21st Century Act — which has won support from the chemical industry as well as some environmentalists. This is the first update to the US’ major chemical safety legislation in 40 years.
Late last week the House and Senate reached a deal to move forward with the legislation, which reconciled the two elected bodies’ chemical safety reform bills that they had approved last year. The House-Senate bill gives the EPA greater authority and funding to regulate chemicals. It also gives the industry newprotections against state regulations, which has earned it support from several trade organizations.
“This deal is a breakthrough that combines the strongest elements of the House and Senate bills, benefiting both manufacturers and consumers and eliminating regulatory uncertainty,” said National Association of Manufacturers senior vice president of policy and government relations Aric Newhouse in a statement. “Manufacturers have been calling for TSCA reform for years. As innovation and technology have propelled manufacturing into the 21st century, this outdated law not only has created bureaucratic burdens, but it also fails to reflect the state of current, modern manufacturing.”
American Chemistry Council CEO Cal Dooley called the bill “a true compromise that balances the interests of multiple stakeholders and has an almost-unprecedented level of bipartisan support… After years of inaction, we are confident 2016 will be the year U.S. chemical regulation steps into the 21st century.”
The Environmental Defense Fund called on the Senate to “immediately” pass the legislation.
“The Lautenberg Act fixes the biggest problems with our current law — by requiring safety reviews for chemicals in use today, mandating greater scrutiny of new chemicals before they can be sold, removing the barriers that prevented EPA from banning asbestos and other harmful chemicals, enhancing transparency, and much more,” said Dr. Richard Denison, EDF lead senior scientist. “While not perfect, this bill will be a dramatic improvement over current law.”
https://www.environmentalleader.com/2016/05/24/house-passes-chemical-safety-law-reform/

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House Passes Chemical Reform Bill on 403-12 Vote

May 25, 2016 | BNA Daily Environment Report

By Pat Rizzuto

On a 403-12 vote, the House approved legislation May 24 that would give the Environmental Protection Agency more authority to evaluate and control the nation's industrial chemicals.
The Senate is expected to quickly take up—and easily pass—the bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576). It may reach the Senate floor May 25 or 26 under unanimous consent, a procedure under which the measure is deemed approved unless a single senator objects.
The White House supports the legislation, which would give the EPA more authority to obtain toxicity, exposure and other information about chemicals, eliminate some of the Toxic Substances Control Act's requirements that make it hard for the EPA to regulate chemicals in commerce, and require the agency to assess the risks of the chemicals of greatest concern that are in commerce. In its current form, the law has no such mandate.
Bipartisan House Support
Rep. John Shimkus (R-Ill.), who spearheaded the House effort that led to the bill's adoption, described H.R. 2576 as “sweeping legislation,” “the culmination of a multiyear, multi-Congress effort,” and “the first consequential update of the Toxic Substances Control Act, or TSCA, in 40 years.”
“The end result of our work is a vast improvement over public law,” said Shimkus, chairman of the House Energy and Commerce Subcommittee on Environment and the Economy.
During the nearly four decades since TSCA became law, said Rep. Rob Woodall (R-Ga.), “science has changed, technology has changed, consumer demands have changed and yet the way that we regulate these chemicals has not.”
Rep. Frank Pallone (D-N.J.), ranking member of the House Committee on Energy and Commerce, supported the bill saying “reforming this law is about preventing injuries and saving lives. It's about protecting vulnerable populations.”
Had TSCA worked effectively, “we would not have Bisphenol-A in baby bottles or toxic flame retardants in our children's pajamas and in our living room couches and exposure to asbestos decades ago,” Pallone said.
He referred to the 1991 decision of the U.S. Court of Appeals for the Fifth Circuit, Corrosion Proof Fittings v. EPA, which overturned the agency's bid to ban asbestos.
“The court overturned it because of serious limitations on EPA's authority. That court decision came down 25 years ago. Imagine the lives that could have been saved and the injuries that could have been prevented if that ban had stood,” Pallone said.
Tonko Weighing Pros and Cons, Voted Against
Rep. Paul D. Tonko (D-N.Y.), who opposed the bill, acknowledged it would improve some aspects of managing chemicals in the U.S.
“EPA gains new authorities and resources. The regulatory bar to testing is lowered, allowing EPA to acquire more information about chemicals. And, the ‘least burdensome' standard that essentially has prevented EPA from regulating chemicals even when there was overwhelming evidence of harm has been removed,” Tonko said.
“One of our caucus’ top priorities—expediting the review of persistent, bioaccumulative, and toxic substances (PBTs) was largely retained. And the bill requires EPA to consider the most vulnerable populations,” Tonko said.
“But for every positive step to protect public health and the environment there are numerous steps back that undermine those goals,” he said.
Tonko opposed the bill because of provisions that would prevent states from regulating chemicals even though the EPA has not decided whether it would regulate them. That period, during which a chemical is unregulated by either states or the EPA, is called the “preemption pause.”
“Let us call the pause exactly what it is—unnecessary and precedent setting. It may be decades before we see the health benefits of this bill, but I fear it is only a matter of time before more and more bills come to the floor that prevent state regulation before a final federal agency action. It is a terrible policy, and we should not encourage it. It opens the door to unwelcome and dangerous precedent,” Tonko said.
Rep. Hank Johnson Jr. (D-Ga.) voted for the bill but shared Tonko's concerns about the preemption pause.
“This body has never passed a law that denied states the ability to act before there is a federal standard in place,” Johnson said.
“We will create an almost three-year limbo period where a chemical under review is essentially unregulated by either state or federal laws. Meanwhile the public is subjected to potentially dangerous chemicals. This is unheard of in our existing consumer protection legal standards and will be to the detriment of the American public,” Johnson said.
Pallone said H.R. 2576 was not the bill Democrats would have written.
The legislation would, however, make critical improvements to current law, he said.
“I'm happy to support this bill to move forward with more protection for public health, for the environment, for vulnerable populations and for vulnerable communities,” Pallone said. “While this is a compromised bill, it is a long overdue step forward in protecting families and communities from toxic chemicals.”
Senators Predict Easy Passage
On the other side of Capitol Hill, Senate Republican leaders said they were confident of quick passage even as they steered clear of discussing strategy, including whether they had enough support to pursue passage under unanimous consent.
“It looks very good,” Sen. John Cornyn (R-Texas), the Senate Majority Whip, told reporters May 24.
“I think we could have some news on that” floor strategy shortly, he said.
Sen. Charles Schumer (D-N.Y.), a member of the Senate Democratic leadership, told Bloomberg BNA May 24: “I think it's likely to pass and become law.”
Schumer said he has reservations about the way the bill would preempt certain state regulation of chemicals but is resigned to its passage.
Sen. Dick Durbin (D-Ill.), the Democratic whip, said Democrats discussed the prospect of quick Senate approval at the Senate policy lunch earlier in the day.
“It's moving,” Durbin told reporters. “There were good comments today in the [Democrats’] lunch and I think there's a very good chance we can bring that forward,” he said.
Key Test: Implementation
Shimkus said the real test of the legislation will be the EPA's implementation and finding out whether the law will do what legislators have said it will.
“We needed a new TSCA and we're getting one,” said EPA Administrator Gina McCarthy who spoke with Bloomberg BNA May 24. “It will be earth changing for EPA. We're going to be a player for first time in decades on toxics. It's going to be a risk-based standard for the first time. It's quite remarkable.”
“I keep my fingers crossed,” McCarthy said as she spoke with Bloomberg BNA before the House vote. “I'm excited. That's going to give us a lot more ability to look at what is in existing products.”
Looking Ahead: New Language to Block Rules?
One Republican highlighted a provision in the bill that may offer a means to block the EPA's ability to regulate chemicals.
Rep. Marsha Blackburn (R-Tenn.) said she understood H.R. 2576 adds a new provision to Section 9 of TSCA that would limit the EPA's ability to promulgate a rule that would restrict or ban a chemical if the agency already manages the risks of that chemical through a different statute. The provision also would apply, she said, if another agency already regulates that chemical in a way that sufficiently protects against its risks.
That provision, she said, could force the agency to explain why it would need any further regulation of methylene chloride or trichloroethylene, Blackburn said.
The EPA plans to propose rules, authorized under Section 6 of TSCA, to ban or restrict particular uses of trichloroethylene, n-methylpyrrolidone and methylene chloride (57 DEN A-2, 3/24/16).

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=90349380&vname=dennotallissues&fn=90349380&jd=90349380

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TSCA Reform Bill Heads to Senate After Clearing House

May 24, 2016 | Chemical Watch

The US House of Representatives has passed a final negotiated bill to reform the Toxic Substances Control Act (TSCA).
The bill passed by a 403-12 margin. It must now clear the Senate before heading to the president's desk to be considered for signing into law.
The compromise bill to reconcile TSCA reform bills passed each chamber last year, and came to the House with bipartisan, bicameralsupport. Dozens of trade groups and NGOs, the White House and the EPA have backed the measure.
Senator Tom Udall (D–New Mexico), a co-author of the Senate bill, called the House's vote "a major milestone that has taken years of negotiation and collaboration across both parties and both houses of Congress."
"We aren't done yet – the Senate still needs to pass this bill. But we are steps away from finally having a working chemical safety law that protects our children and our communities from dangerous chemicals," he added.
The Senate is expected to vote on the measure later this week. The White House has indicated it will sign it into law.Unanimous support eludes
Yet despite the overwhelming support for the bill, nine Democrat and three Republican Members voted against it.
Paul Tonko (D– New York) stood in opposition to the bill in Tuesday's floor debate, airing concerns that the measure would:weaken significant new use rules (Snurs) as compared to current TSCA, making it "more difficult to require notification and therefore to track chemicals being used in new ways or in imported products";limit reporting requirements for inorganic byproducts, "a concept that was not in either the House or Senate bills, but seems to have been stuck into this version somehow"; andintroduce "a number of seemingly benign provisions, that are included to create loopholes that undermine the public health and environmental protection goals of TSCA".
Regarding the bill's "pause preemption" – which would block a state from acting on a substance once the EPA begins reviewing it – Mr Tonko called the provision "unnecessary and precedent-setting".
"It may be decades before we see the health benefits of this bill, but I fear it is only a matter of time before more and more bills come to the floor that prevent state regulation before a final federal agency action," he said.NGOs protest
And, while NGOs such as the Environmental Defense Fund (EDF) and March of Dimes have come out in support of the bill, others continue to express opposition or concern with the advancing measure.
Ken Cook, president of the Environmental Working Group (EWG), issued a statement saying that passage of this bill would be cause for celebration for chemical manufacturers – but that other stakeholders "should be mad as hell".
According to analysis by the group, the shortcomings of the bill include:blocking states from regulating a chemical for up to three years while the EPA studies its safety;inadequate funding from the chemical industry to ensure expeditious review of chemicals of high concern; anda failure to remove from the bill "vague requirements that rules be 'cost-effective'", which it says could could "keep EPA tied in legal knots".
Mr Cook predicts that the law will fuel mistrust of the chemicals industry, and that chemicals of concern will continue to be "regulated by retail" and consumer demand.
The Breast Cancer Fund (BCF) also opposed the negotiated bill. Among its misgivings is that it will "continue to violate our right to know the identify of the chemicals we are exposed to, even when health and safety studies show potential harm from the chemical".
The Center for Environmental Health's executive director Michael Green, said that "the devil in these new rules will surely be in the details of EPA's implementation." CEH will "push for strong EPA action to protect Americans from risky chemicals", he added.
https://chemicalwatch.com/47609/tsca-reform-bill-heads-to-senate-after-clearing-house

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House Passes Chemical Safety Overhaul

May 24, 2016 | The Hill - E2 Wire

By Timothy Cama

The House on Tuesday voted overwhelmingly to pass an overhaul to the nation’s chemical safety standards for the first time in four decades.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act aims to answer years of complaints that the Environmental Protection Agency (EPA) lacks the necessary authority to oversee and control the thousands of chemicals being produced and sold in the United States.

It also significantly clamps down on states’ authorities in an effort to stop a nationwide patchwork of chemical laws that industry says is difficult to deal with.

The House passage by a 403-12 vote is a significant step for the bill after years of legislative work, negotiations and wrangling. Nine Democrats and three Republicans voted nay.

The Senate is expected to pass it later this week, and President Obama supports it as well.

“This is sweeping legislation, Mr. Speaker, with monumental benefits for virtually every man, woman and child in the United States,” Rep. John Shimkus (R-Ill.), the bill’s lead sponsor in the House and the chairman of the subcommittee with jurisdiction over the issue, said Tuesday on the House floor.

“There is a widespread acknowledgement and understanding that nobody is well-served by the current law,” Shimkus added, calling the Lautenberg bill “a vast improvement over current law, and a careful compromise that is good for consumers, good for jobs and good for the environment.”

Rep. Frank Pallone (D-N.J.), the top Democrat on the House Energy and Commerce Committee, said the bill is far from perfect, but a significant improvement over the Toxic Substances Control Act of 1976.

“Reforming this law is about preventing injuries and saving lives,” Pallone said. “It is about protecting vulnerable populations — infants, children, workers, the elderly, and communities that are disproportionately exposed to toxic chemicals. It is about getting dangerous chemicals like lead, mercury and asbestos out of consumer products, out of commerce, and out of the environment.”

Pallone was one of the last holdouts in the negotiations over the bill, having signed on as a supporter only Monday. He, along with Minority Leader Nancy Pelosi (D-Calif.) and Minority Whip Steny Hoyer (D-Md.), secured some additional changes at the last minute that they said beefed up states’ authority to keep regulating chemicals in some instances.

“While this is a compromise bill, it is a long-overdue step forward in protecting families and communities from toxic chemicals,” Pallone said.

Rep. Paul Tonko (D-N.Y.), the top Democrat on the subcommittee of authority, was not swayed by the negotiations and said he opposes the bill.

“In some ways, this bill will improve current law,” he said. “But for every positive step to protect public health and the environment, there are numerous steps back that undermine those goals.”
http://thehill.com/policy/energy-environment/281108-house-passes-chemical-safety-overhaul
Tonko highlighted numerous problems, but said state pre-emption was the biggest.

“Under this bill, states lose those rights to ban a chemical, and a waiver would be more difficult to obtain than under current law,” he said. “Without a working federal program, it has fallen upon states to lead the fight to get the most harmful chemicals out of commerce.”

Senate leaders are trying to fast-track the bill’s consideration, which would likely have it passed by the end of the week and on Obama’s desk.
http://thehill.com/policy/energy-environment/281108-house-passes-chemical-safety-overhaul

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Overnight Energy: House Approves Chemical Reform Deal

May 25, 2016 | The Hill - E2 Wire

By Timothy Cama and Devin Henry

CHEMICAL SAFETY REFORM PASSES HOUSE: The House voted overwhelmingly Tuesday to pass a sweeping bipartisan compromise chemical reform measure after years of legislative work, negotiations and wrangling.
The 403-12 puts the Frank R. Lautenberg Chemical Safety for the 21st Century Act in the Senate's hands. It will likely breeze through the upper chamber, and President Obama supports it.
"This is sweeping legislation, Mr. Speaker, with monumental benefits for virtually every man, woman and child in the United States," Rep. John Shimkus (R-Ill.), the bill's lead sponsor in the House said on the House floor.
"There is a widespread acknowledgement and understanding that nobody is well-served by the current law," Shimkus added.
Rep. Frank Pallone (D-N.J.), the top Democrat in the House Energy and Commerce Committee, said the bill is far from perfect, but a significant improvement over the Toxic Substances Control Act of 1976.
"Reforming this law is about preventing injuries and saving lives," Pallone said. "It is about protecting vulnerable populations -- infants, children, workers, the elderly, and communities that are disproportionately exposed to toxic chemicals. It is about getting dangerous chemicals like lead, mercury and asbestos out of consumer products, out of commerce, and out of the environment."
Rep. Paul Tonko (D-N.Y.), the top Democrat on the subcommittee of authority, was not swayed by the negotiations, and said he opposes the bill.
"In some ways, this bill will improve current law," he said. "But for every positive step to protect public health and the environment, there are numerous steps back that undermine those goals."
Read more here.
HOUSE LOOKS TO BLOCK EPA RULES: Republicans on the House Appropriations Committee on Tuesday released their 2017 Interior environment spending bill, looking to cut funding for the Environmental Protection Agency (EPA) and block several Obama environmental rules.
The bill would cut $64 million in spending from current levels and offers $1 billion less than what President Obama requested in his budget.
Republicans are looking to cut the EPA's budget by $164 million, a smaller cut than they've pursued in the past.
But the committee is targeting the agency's regulatory agenda, saying it's seeking a 6 percent funding cut. A host of Obama environmental rules, including those setting carbon limits on power plants, regulating methane emissions and defining bodies of water under the agency's purview would also be blocked.
The committee has looked to cut funding further in years passed, including a proposed $718 million cut last year. But a December spending deal kept funding for the agency flat.
The Interior and Environment appropriations subcommittee will mark up the bill on Wednesday. Lawmakers have not passed the appropriations bill through the House for several years. It hit the House floor last year but faltered amid a debate over the display of the Confederate flag at national cemeteries.
Read more here.
SHELL REPAIRS LEAKING CALIF. PIPELINE: Shell has reportedly repaired a pipeline that spilled up to 21,000 gallons of oil in California.
A company spokesman told the Associated Press on Tuesday the leak has been repaired, and that the company is running some oil through the pipeline to test it.
The company's pipeline sprung a leak on Friday, and local officials say it spilled oil along a 250-by-40-foot area, according to the AP.
The spill happened in the city of Tracy, Calif., about 60 miles outside of San Francisco.
TOMORROW IN THE HILL: Donald Trump travels to North Dakota this week to continue his courtship of the energy industry.
A key constituency for Republicans, Trump is looking to lock down energy-state support now and use a mostly mainstream conservative platform to attract voters in the general election.
But so far, he's offered just a few hard energy positions, and those have been plagued with some of the inconsistency found elsewhere in his policy platform.
Trump's Thursday speech could change that. Read how tomorrow in The Hill.
ON TAP WEDNESDAY I: The House continues amendment debate on the 2017 energy and water spending bill.
The $37.4 billion package contains a host of environmental policy riders likely to turn off many Democrats, who will look to amend the legislation.
http://thehill.com/policy/energy-environment/overnights/281125-overnight-energy-house-approves-chemical-reform-deal

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House Approves Compromise TSCA Bill

May 25, 2016 | PoliticoPro - Whiteboard

By Darren Goode

House lawmakers today passed compromise legislation to overhaul a 40-year-old chemical safety law, with the Senate expected to quickly follow suit this week.
The 403-12 vote is another step toward Congress sending President Barack Obama the biggest change to environmental law in decades. The bill, H.R. 2576, updates the 1976 Toxic Substances Control Act to give EPA more tools to regulate chemicals while limiting states' ability to set their own laws. The Senate is expected to approve it before the end of the week, and the White House has signaled Obama will sign it.
“Folks said it could not be done especially with Republicans in Congress and a Democratic president,” House Energy and Commerce Chairman Fred Upton said ahead of the vote. “But we took the time, we did the hard work, we put in countless hours ... and it paid off.”
Top House Democratic negotiators threatened a revolt over concerns such as preempting state toxic laws. But House Minority Leader Nancy Pelosi, Minority Whip Steny Hoyer and Energy and Commerce ranking member Frank Pallone announced their support Monday after some late changes were made. Those changes were not enough for Rep. Paul Tonko, ranking member on the Environment and the Economy Subcommittee, who opposed the bill over provisions he said would "severely inhibit states’ ability to act."
Named after the late-Sen. Frank Lautenberg, the compromise bill emerged from years of negotiations among industry and environmental groups, lawmakers from both parties and the Obama administration.
https://www.politicopro.com/energy/whiteboard/2016/05/house-approves-bicameral-tsca-bill-072417

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House Passes TSCA Legislation; Senate Up Next

May 25, 2016 | E&E Daily

By Sam Pearson

House lawmakers easily passed bipartisan legislation to update the nation's chemical safety law by a vote of 403-12 yesterday, leaving the measure just days away from potentially reaching President Obama's desk.
With top Democrats and Republicans praising the agreement as an imperfect but needed step, House lawmakers cleared the way for overhaul of the nearly 40-year-old statute. The improbable agreement comes after years when lawmakers of both parties could not coalesce on a path forward.
Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Subcommittee on Environment and the Economy and a former high school government teacher, compared the process for crafting the bill to the show "Schoolhouse Rock!"
Shimkus said, "This is how the legislative process is supposed to work."
Senators have been working on making sure the agreement, the product of negotiations between leaders in both chambers, reaches the floor without delay.
Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) said a vote will happen tomorrow. "It's all pretty much arranged," Inhofe said. "We're going to be able to do it."
Voting against the House bill were nine Democrats -- Rep. Paul Tonko of New York, the ranking member on Shimkus' subcommittee, and Reps. Jared Huffman, Zoe Lofgren and Jackie Speier of California; Jan Schakowsky of Illinois; Chellie Pingree of Maine; John Sarbanes of Maryland; and Yvette Clarke and Louise Slaughter of New York.
Three Republicans -- Reps. Tom McClintock of California, Ken Buck of Colorado and John Duncan of Tennessee -- also spurned the legislation. McClintock was the sole House member to vote against an earlier version of the bill when it came to the House floor last year (Greenwire, June 24, 2015).
The legislation also serves as a tribute to the late Sen. Frank Lautenberg (D-N.J.), who worked on the issue for years before his death in 2013 just weeks after unveiling new legislation.
Energy and Commerce ranking member Rep. Frank Pallone (D-N.J.) said Lautenberg wanted to answer a fundamental question: What chemicals are dangerous?
For the first time, Pallone said, the bill would allow U.S. EPA increased authority to obtain information for chemical assessments to identify what substances the agency needs to restrict. Pallone and House Democratic leaders opposed the bill until securing new concessions over the weekend (Greenwire, May 23).
Rep. Gene Green (D-Texas) called the bill a "win-win" to protect workers and fence-line communities and to help chemical companies in his industry-heavy district.
Despite its flaws, the bill is "a good deal for the American people," House Minority Whip Steny Hoyer (D-Md.) said.Pre-emption, oversight discussed
Tonko said the bill's restriction on state action after EPA has begun but not completed a chemical review would set a harmful precedent for future laws.
The final language, said Tonko, also contains problematic sections to limit how EPA can issue significant new use rules for chemicals, sections to limit reporting requirements for inorganic byproducts, and other "seemingly benign loopholes" intended to tie the agency's hands.
"'Better than nothing' is a very low bar," Tonko said. "I think we can and should do better. The public deserves better."
Tonko warned that restrictions on states would come up again in other GOP-backed bills. He toldE&E Daily that the trend could include future legislation to regulate cosmetics or occupational health and safety.
"It may be decades before we see the health benefits of this bill, but I fear it is only a matter of time before more and more bills come to the floor that prevent state regulation before a final federal agency action," Tonko said on the House floor. "It is a terrible policy, and we should not encourage it."
Lawmakers and advocates on both sides have said the true test of the law's worth will come in the years ahead. EPA faces a series of procedural and implementation deadlines.
Shimkus said oversight of the law would be robust because its drafters will still be around to see what happens next.
"You've got to give them time to get going," Shimkus said of EPA. "This is going to take time to get up and running."Groups react
Industry groups and environmental organizations that have supported the process of crafting an agreement applauded House passage yesterday. Others were skeptical.
"With today's vote, Congress took another big step forward for public health," Environmental Defense Fund Lead Senior Scientist Richard Denison said in a statement.
American Chemistry Council President Cal Dooley said in a statement, "U.S. manufacturers and America's consumers can take heart that a 21st century approach to managing chemicals is just steps away."
Environmental Working Group President Ken Cook, in a statement, called the bill a win for the chemical industry but a setback for consumers. He said people "should be mad as hell."
"Chemical companies have long ago lost the confidence of the American people, and this law will only fuel that mistrust," Cook said. "Because this law will not strongly and urgently address the problem of toxic chemical exposure,increasingly consumers will act to protect themselves."
Reporters Sean Reilly and Geof Koss contributed.
http://www.eenews.net/eedaily/2016/05/25/stories/1060037834

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Shimkus on ‘Historic' Agreement on Chemical Reform

May 25, 2016 | BNA Daily Environment Report

Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Subcommittee on Environment and the Economy, has taken the lead in ushering through Congress the first update of the Toxic Substances Control Act in 40 years. Shortly before the House voted May 24 on the final bill (H.R. 2576), Shimkus spoke to a small group of reporters about the process and lessons learned.
Shimkus said it was a “perfect storm” of factors that led to Democrats and Republicans being able to come together and pass the chemicals law overhaul. He said “relationships matter” between lawmakers and that—as evidenced by TSCA reform—major legislation takes multiple years and multiple Congresses to be completed.
Though he indicated oversight of the new law—assuming it passes the Senate and is signed into law, as expected—will be a priority in the coming years, Shimkus said he would first give the EPA time to “get it up and running.” The interview here has been edited for length and clarity.
Reporters:
How does it feel to be so close to this becoming law?
Shimkus:
Well, it feels really good. This is really a commencement. It's really a beginning. We finished a lot of work but the proof is in the pudding. How does the law get enacted? How does the EPA do the processes? We'll continue to look at oversight once it gets cracking down the road.
This is really the beginning of, we hope, a better way to give the public more confidence.
Reporters:
If there are any causal observers of this process, might they ask why Republicans are doing a bill that shores up the EPA's authority?
Shimkus:
The public needs some confidence, not just for the individual consumers, but the industry does. You can't have a balkanized system of rules and regulations if you want the commerce to flow freely. And, it was mentioned on the floor during the debate: health and safety. What's the standard? Do we really want a system where we're not totally focused on the safety of our system and should there not be an agency who gives a thumbs up or thumbs down? We need to empower them [EPA], we need to make sure they do their own work, but we also in this bill want to encourage the industry to make sure they provide them with more information. More data is better than less data.
The bottom line is this is a better law than current law. [It's] amazing work that staff has done. They were doing stuff—sometimes around the clock—until the last minute.
Reporters:
Were there any particular things that hurt to give away in the final compromise to get some of the Democrats on board?
Shimkus:
There's no reason to open up old wounds. We're all partially one, happy family. We don't need to re-litigate how we got here. We just need to—for this short moment of time—kind of rejoice that we're there, mostly together.
Reporters:
This seemed like an issue where Democrats seemed to be fighting among themselves. You guys seemed largely on the same page with the Senate. There were problems, but you seemed to be largely on the same page here.
Shimkus:
This preemption debate was a key provision that they really fought and litigated on that [Senate] side. And they really solved it in that initial bill in December, because remember they had to get 60 votes. [They did it] without [Sen. Barbara] Boxer (D-Calif.). And then when Boxer came on—and in essence confirmed that decision, she made a few tweaks—it was kind of game over.
It's got to be a bicameral negotiation and we just had to, in essence, accept that provision of the bill.
Reporters:
Was there ever a moment where you said, ‘I don't think we're going to be able to get this done?'
Shimkus:
I've never been in this big [of] a bill, with this longevity—for me, five and a half years. I didn't even know what TSCA was when I became vice-chairman of the committee. In this cycle, I always felt pretty good.
The struggle for us was trying to make sure that the House Democrats were with us, and we didn't get them all. But we did make some substantial progress in the past week.
Reporters:
Did the obscurity of this law help?
Shimkus:
Yes, definitely. It's very difficult and I think I know about it.
Reporters:
It's not a talking point. People aren't going to bang their hand on the wall over TSCA?
Shimkus:
I think the other thing that kind of surprised me was, first of all, Chairman [Fred] Upton (R-Mich.) allowed me to be the guy. That was cool because in other things, he's taken the leadership. And then we offered some other members the chance to get involved in the room, but I think because of the complexity, they said, ‘no, go ahead, you take care of it,' which in the end was good for us. Because more people in the room doesn't always mean you get to a quicker solution.
Reporters:
What lessons do you take away from this in terms of how Democrats and Republicans can work together on energy policy?
Shimkus:
It is a fairly historic bill. It took a lot of compromise. And it was working with the Senate. There were relationships there. I kept thinking, ‘How could we not do better than the broken law?'
Not every major issue is going to be that way. But also we did work with compromise. It was good faith. There was tough discussions, emotional responses—not just between staff between members now and then—stand up for your position or be open and receptive. One of the other questions I got was, ‘Why are you fighting so hard [to get these Democrats on board]?'
Because they're really friends. [Rep.] Paul Tonko is (D-N.Y.) a friend. I would consider [Rep.] Frank Pallone (D-N.J.) [a friend]—definitely [Rep.] Gene [Green] (D-Texas) and [Rep.] Diana [DeGette] (D-Colo.). You don't want to jam friends, especially if you want to work with them in the future. This one worked. I can't say the next ones will work. But this does build some great confidence and trust. I think they know we went to the nth degree to try to get them on board. With the state preemption issues, Paul just couldn't get there. And that's fine. What can you do?
Reporters:
How do you see your oversight role on this going forward?
Shimkus:
You always do well if you follow the law. Our biggest problem is when we think the agencies aren't following the law or they're creating rules that are outside the purviews of the laws you've set up.
So, the health and safety standard. Industry is going to be involved, too. We'll have to see what's working, what's not. It's just oversight. I can't predict how it'll turn out. Let's hope they come and say “Hey, it's working.”
Reporters:
But it's something that will be a priority for your committee going forward?
Shimkus :
Keep in mind, you gotta give them time to get it up and running. But, yes.
Reporters:
Does this really create a template for doing environmental laws going forward or was this really a perfect storm?
Shimkus:
Oh, I clearly believe it's a perfect storm that these events came together. Really, it goes back to [Sen. David] Vitter (R-La.) coming into my office in 2011 when we took over the majority. Vitter was working with [the late Sen. Frank Lautenberg (D-N.J.)] on this bill. He came over to talk to me—I was a newly appointed vice-chairman. And I just said, ‘OK, just tell the senator it's got to move a little to the right if you're going to negotiate.'
That's really what started it. Eventually, they got a compromise. Unfortunately, [Lautenberg] passed. And then [Sen. Tom Udall (D-N.M.)] picked it up. Very courageous on his part—you know the arrows he took from his friends on his left. I give him a ton of credit. [Lautenberg's widow] Bonnie was involved.
We think our bill helped the Senate get closer to theirs in December. So, it's kind of like a living, breathing individual.
Reporters:
So, is that another takeaway? That doing something big like this may take multiple years or multiple Congresses to get done?
Shimkus:
I taught government history. I think there are more cases of bills taking a decade [to get done] than bills getting passed in a year or two. For major legislation, it's multi-year, multi-Congress.
We had hearings going back when I first became subcommittee chairman, we had legislation in the second cycle and we got to the finish line in the third. I would encourage members to realize Rome wasn't build in a day. You got to take time. You got to be persistent. Relationships are important. They matter.
Reporters:
But this doesn't mean it gets easier next time you want to do something in the environmental world?
Shimkus:
That's correct. A lot of this is us trying to move them further right than they want to go and them trying to move us further left than we want to go, and can you find that happy medium? We were fortunate to do that here. That's not always going to be the case.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=90349382&vname=dennotallissues&fn=90349382&jd=90349382

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The TSCA Amendments Simplified: Nine Key Features of the New Law and Three Compromises That Will Affect Business

May 25, 2016 | BNA Daily Environment Report

By Lawrence E. Culleen

Lawrence Culleen is a partner in the Washington, D.C., office of Arnold & Porter LLP. Prior to joining A&P, Culleen held several management positions at EPA including Chief of the New Chemicals Branch implementing Section 5 of TSCA.
Congress is enacting sweeping amendments to the nation's cornerstone chemicals control law, the 40-year-old Toxic Substances Control Act. The amendments are intended to empower and re-invigorate the Environmental Protection Agency's program for controlling risks to human health and the environment from chemical substances that are imported, manufactured, and processed in the United States. President Barack Obama is expected to sign the bill without hesitation. The recently agreed-upon amendments were achieved only after intense behind-the-scenes negotiations necessary to harmonize separate bills passed in the House of Representatives and Senate during 2015. The final bill represents the results of more than a decade of legislative initiatives that in more recent years prompted uncharacteristically collaborative and bipartisan efforts.
Although it may take years for EPA to fully implement the amended law's numerous new requirements, it is important that companies doing business in the U.S.: a) understand the key features of the final legislation; b) gain insight into the three compromises reached on the amended law that are most likely to affect them; and c) take certain simple steps to prepare.
Background
TSCA provides EPA broad authority to regulate importers, manufacturers, and processors of chemical substances, including authority to regulate commercial and consumer use products into which substances are blended. Since its enactment in 1976, TSCA has required EPA to be notified of, and to review (but not to specifically “approve”), “new” chemical substances before they enter U.S. commerce. EPA also must be notified of certain significant new uses of a chemical substance. EPA has been permitted to collect modest fees for processing such notifications. The law enables EPA to require through rulemaking that a chemical substance be tested for health or environmental effects, and has allowed EPA to regulate chemicals in commerce when the agency determines, by rule, that the chemical substance presents unreasonable risks of injury to human health or the environment (using the least burdensome requirements that adequately protect against such risks). Under the current law, EPA requires periodic reporting of certain information including the quantities of chemical substances that are imported and manufactured in the U.S. TSCA has required EPA to maintain confidentiality of information reported to the agency that is considered to be a trade secret. Such information generally could not, under the current law, be disclosed to the states or tribal authorities or to foreign governments. TSCA provides that violations can be punished through civil and criminal penalties. As enacted in 1976, TSCA did little to preempt the authority of the various states to regulate chemical substances except in limited circumstances.
2015 Brought Success
Parallel legislative efforts in the House and Senate finally culminated in both chambers passing amendments to TSCA that were overwhelmingly supported by members. Notwithstanding virtual unanimity with regard to the general problems in TSCA that needed fixing, protracted negotiations were necessary to arrive at a compromise bill. There was no clear path to reaching final agreement on which provisions should be retained from the Senate bill (which contained nearly 200 pages of amendments to virtually every section of Title 1 of TSCA) and the House bill (which reflected a considerably more modest approach and would have amended only those provisions of TSCA that most notoriously constrained EPA's ability to regulate).
Stakeholders from all spectrums who were actively engaged during development of the House and Senate bills advocated strongly for significantly different positions on important provisions of the legislation. Negotiations began in earnest shortly after the new year and, given the distractions of the presidential primaries, competing legislative initiatives, and the president's nomination of Judge Garland to succeed Justice Scalia, it is arguably remarkable that the major legislative players eventually reached agreement on a final bill. This advisory highlights some of the most important provisions of the new law and reviews several significant agreements reached along the way that were instrumental to achieving results.
Nine Key Features of the New Law
1. Revises the threshold for regulating chemical substances and separates consideration of costs and other non-risk factors from the risk assessment process. When performing risk assessments for chemical substances, EPA will be limited to considering human health and environmental effects, including risks to vulnerable population subgroups that may be uniquely susceptible. If EPA's risk evaluation determines that a substance will, under its intended or reasonably foreseeable conditions of use, present an unreasonable risk, the agency must issue a regulation to manage those risks. Costs, benefits, and other non-risk factors will be considered by EPA only in the context of reaching risk managementdeterminations. EPA's decisions will be expected to reflect the “best available” science and to be based on the “weight of the evidence.”
2. Requires EPA to make a determination for all new chemicals. New chemical substances will not be able to enter commerce until EPA makes an affirmative determination concerning whether the new chemical substance may present an unreasonable risk to human health or the environment, including risks to vulnerable subpopulations. The same standard which will apply to premanufacture notifications (PMNs) also will apply to EPA's review of notices it receives concerning proposed uses of a substance that EPA has defined to be significant new uses.
3. Expands EPA's authority to compel chemical testing. The agency gains authority to issue administrative orders to direct that test data be generated on certain substances, in addition to using its existing rulemaking authority.
4. Directs EPA to prioritize chemical substances in commerce for review and management and establishes deadlines. EPA will be required to prioritize chemical substances that are already in commerce for risk assessment and risk management determinations. EPA must establish its risk evaluation process by rule within one year of enactment of the final amendments. However, within six months of enactment, the agency is required to rapidly identify an initial cluster of 10 “high priority” chemical substances for risk evaluations and gradually to expand that list. 1 Three years later, EPA must have identified at least 20 substances as high priorities for assessment and 20 as “low-priority” substances—half of the prioritized chemicals must be drawn from EPA's roster of Work Plan chemicals issued in 2014. A manufacturer (but not a processor) of a chemical substance may request a risk evaluation provided the manufacturer pays a service fee to offset the agency's cost to perform the assessment. EPA will be expected to give preference in the risk evaluation process to chemicals listed on its Work Plan that are persistent and bioaccumulative as well as known human carcinogens with both acute and chronic toxicity. Persistent and bioaccumulative substances to which the general population is exposed will be subject to expedited regulatory actions for which no risk assessments are required and which are intended to reduce exposures to the “extent practicable.” Risk evaluations must be completed within three years of initiation, and if EPA determines that the substance “presents” an unreasonable risk, the agency must propose a risk management (Section 6) rule not later than one year from the determination, with the final rule to be issued a year later. If extensions to EPA's deadlines become necessary, they may not exceed two years in the aggregate.
5. Updates the TSCA Inventory. Pursuant to TSCA, EPA maintains an inventory of chemical substances that establishes the dividing line between “existing” and “new” chemicals. The amendments direct EPA to issue a new rule within one year to require reports to update the inventory to get a better understanding of which substances are currently being commercially manufactured, processed or imported into the U.S., and to designate other listed substances as “inactive.” EPA is to retain the chemical nomenclature conventions it followed when the initial inventory was created.
6. Improves transparency. The amendments require EPA to review existing confidential business information (CBI) claims masking the specific identities of chemical substances in commerce and a sampling of at least 25 percent of other CBI claims. Substantiated claims will be protected for an initial 10-year period, subject to renewals. EPA is granted authority to share CBI with state and tribal governments, health and environmental professionals, and first responders.
7. Increases fees. The amended law authorizes EPA to collect considerably higher fees than the current law authorizes. The fees are intended to defray up to 25 percent of EPA's costs of implementing the new chemical notification, risk evaluation, and confidential information review programs. When a manufacturer requests an EPA review of an existing chemical, it must pay as much as 100 percent, depending on the chemical, of EPA's costs for conducting the review.
8. Partial preemption of state chemical-regulatory actions. Final EPA regulatory actions on chemical substances will preempt state regulation of such substances, subject to various exceptions and opportunities for state requests for waivers. States will still be permitted to adopt regulations identical to federal standards issued pursuant to TSCA. Both EPA and the states will continue to enforce their respective regulations if the state rule is identical, but penalties will be capped at the federal statutory maximum. Preemption—albeit temporary—also will arise when EPA formally announces the scope of the risk evaluation the agency is undertaking for an existing chemical substance. Following such an announcement, the states may not impose new regulatory requirements that affect activities within the scope of the agency's assessment until EPA completes its review, or 30 months have elapsed (whichever is sooner). When this temporary preemption period concludes, a state may impose a new chemical-regulatory requirement unless EPA has determined that the substance does not present an unreasonable risk to human health or the environment (including to susceptible subpopulations) under the intended and foreseeable conditions of use. Moreover, if EPA issues a final risk management rule which limits or prohibits a chemical substance under certain intended or foreseeable uses, state actions would again be preempted. State statutory and regulatory actions taken prior to April 22, 2016, are not preempted and new actions taken under an existing state law that was in effect on August 31, 2003, are not preempted. States may seek waivers from the preemptive effect of an EPA decision under certain conditions. The compromise bill clarifies that common law rights of action are not affected.
9. “Hot Spots” to be identified. The legislation amends the Public Health Service Act to encourage the identification and investigation of potential cancer clusters.
1 High priority substances are those which “may present an unreasonable risk” because of a “potential hazard and a potential route of exposure under the conditions of use” including to any “potentially exposed or susceptible subpopulation” identified as relevant. In contrast, substances that do not meet this standard will be designated as “low priority” for risk evaluation.
Three Key Compromises
Likely to Affect Business
The following highlights important compromises reached during the negotiations on the final bill that are likely to affect chemical manufacturers, importers and processors.
• Compromise #1: Clarify the Regulatory Threshold; No New “Safety Standard”
As originally enacted, TSCA enabled EPA to take regulatory actions to limit or prohibit activities associated with a chemical substance when the agency could find that the substance “may present” (for a new chemical substance or significant new use) or “will present” (for an existing substance) “an unreasonable risk of injury to [human] health or the environment.” TSCA neither defines the term “unreasonable risk” nor elaborates on application of the “standard” for taking regulatory action. The lack of clarity concerning when a risk can be said to be “reasonable” proved vexing for nearly 40 years. Thus, a recurring theme in the discussions that informed drafting of the Senate and House bills concerned how to amend the regulatory “standard” for taking action. Stakeholders, including agency leaders, have argued that it has been difficult for EPA to demonstrate that the regulatory threshold has been met, especially in light of the requirement that risk management rules should apply the “least burdensome” methods. 2 Advocates for strengthening TSCA argued that the “fix” should be a new, strict “safety standard” that chemical substances entering commerce, and those already in commerce, must meet.
2 The unreasonable risk standard as applied in the context of Section 6 regulations for existing chemicals has been interpreted by the Fifth Circuit to require a balancing test. Thus, in its 1991 Corrosion Proof Fittings v. EPA decision, the court struck down significant features of EPA's rulemaking that would have effectively banned most uses of asbestos and stated that “[i]n evaluating what is ‘unreasonable,’ the EPA is required to consider the costs of any proposed actions and to ‘carry out this chapter in a reasonable and prudent manner [after considering] the environmental, economic, and social impact of any action.’” 947 F.2d 1201 (5th Cir. 1991).
The Senate bill would have inserted the term “safety standard” against which chemical substances would have been measured to ensure, “without taking into consideration cost or other non-risk factors,” that no “unreasonable risk” would occur, including to “potentially exposed or susceptible subpopulations.”
The drafters of the House bill elected to retain the basic “unreasonable risk” standard. However, in harmony with Senate drafters, the House bill would have required that when strictly assessing the risks of a chemical substance, EPA should not take into consideration “cost or other non-risk factors” and should specifically take into consideration risks to “potentially exposed subpopulations.”
The final bill aligns more closely with the House version in that it retains the existing regulatory standard of TSCA. More importantly, however, it captures the most significant feature of both bills: separating the processes and concepts involved in risk assessment and risk management. In so doing, the final bill clarifies that risks should be assessed without consideration of costs and other non-risk factors, and that the process should include consideration of exposures to certain populations that can be said to be “at risk,” because of their susceptibility (e.g., the young or the aged and infirm). Appropriately, the final bill permits EPA to consider costs and benefits when it is engaged in risk management and selecting from among alternative approaches for regulatory controls.
Potential Effects on Businesses: Although the “unreasonable risk” language was retained, submitters of new chemical and new use notifications and proponents of existing substances that will undergo risk evaluations under the clarified regulatory standard (e.g., those on the agency's 2014 Work Plan Chemicals List and those for which a business may request an EPA Risk Assessment be conducted) should be prepared for the expanding contours of what EPA will now be required to consider under the new regime. Specifically, proponents of a chemical substance that is undergoing review under the amended TSCA should be prepared to provide to EPA a reasonable and scientifically defensible basis for supporting the conclusion that a substance and its intended uses will not create exposures that present an unreasonable risk to any “susceptible subpopulation.” This might require defining and, if possible, quantifying all potential exposures that are likely to occur from intended uses of the chemical substance as well as any reasonably foreseeable uses that EPA might imagine could occur. It is worth noting that the new law permits third parties, including non-governmental organizations (NGOs), to submit information for EPA consideration during risk assessment proceedings. Business entities that might be considering paying potentially exorbitant fees to have a valuable commodity voluntarily undergo an EPA risk evaluation (and get a potentially preemptive determination) will need to challenge themselves to consider and anticipate potential exposures to populations that may be at greater risk than the general population, such as infants, pregnant women, and workers, as well as individuals living in disadvantaged communities that might experience exposures due to greater proximity to facilities at which manufacturing, processing and even use of the chemical substance might occur. It will not serve business entities well if they ignore such potential exposures from foreseeable uses only to find themselves ill-prepared to respond to agency assessments that take such exposures into account.
• Compromise #2: Require EPA to Make Determinations on All New Chemical Substances/ New Uses
Under Section 5 of TSCA, EPA is authorized to evaluate new chemical substances and “significant new uses” of chemical substances to determine whether regulation may be warranted prior to new substances entering commerce or the new uses commencing. Under the current law, EPA is authorized to issue an administrative order prohibiting or limiting manufacture (or commencement of a new use) if the activity “may present an unreasonable risk” to human health or the environment pending the development of additional information necessary to make a more reasoned evaluation. Significantly, if EPA fails to take affirmative action to prohibit or to limit the new chemical or significant new use, the notice submitter may commence the proposed activity without further restriction.
The Senate bill would have materially rewritten Section 5 to require that EPA issue a determination whether the proposed activities are “likely to meet” or “not likely to meet” the Senate's so-called “safety standard.” Alternatively, the Senate bill provided that EPA could require additional information before making a determination.
The House bill did not amend Section 5, viewing that program to be working effectively.
Negotiators took much of the Senate bill's approach on new chemicals and new uses but wisely liberated EPA from having to specifically label a new chemical or significant new use as “safe.” Thus, EPA will now be required within 90 days to make an affirmative risk determination on each new chemical or significant use. The final bill specifies three categories of risk determinations. First, EPA may determine that a new chemical substance “presents” an unreasonable risk (without considering cost or other non-risk factors) to human health and the environment (including risks to potentially exposed or susceptible subpopulations) under the conditions of use. Second, EPA may determine that insufficient information is available to make the “unreasonable risk” determination, that the substance or use “may present” an unreasonable risk, or that the substance will be made in substantial quantities. Further, EPA must take regulatory action to limit risks if it makes any of the foregoing determinations, and production may only commence in compliance with the restrictions.
Alternatively, the submitter of a new chemical or a new use notice is free to commence production as soon as EPA has found that the new substance or significant new use is “not likely” to present an unreasonable risk (the third category of risk determination).
The Section 5 findings were the subject of considerable discussion up to the very end of the negotiations, perhaps in recognition of the difficulty EPA might face in needing to make a specific risk finding with respect to each new chemical and significant new use, especially in the absence of robust data and in the limited time permitted .
Potential Effects on Businesses: The compromise on Section 5 is likely to give stakeholders on both ends of the legislative debate what they wanted: the ability to say EPA is now required to carefully review and make a “finding” prior to allowing new chemicals and new uses to enter the market. Unfortunately, it is hard to imagine that this new requirement will not significantly slow the “speed to market” interval for new chemical substances given how few people EPA has working in the new chemicals program, and how overwhelmed they are already. Whether the additional requirements will unduly inhibit EPA decision making in the new chemicals program over time remains to be seen. No matter how one interprets the new Section 5 findings requirement, the changes will require some getting used to for EPA staff and notice submitters alike—and the bill does not contain a phase-in period for these particular new features. Manufacturers and importers who have new substances in the research and development lane should be prepared to encounter significant delays and requests for “voluntary” suspensions of the 90-day review period since (at least initially) EPA may struggle to get through the new chemical and new use review process for the foreseeable future. An important and very valuable window may exist now for getting TSCA premanufacture notifications (PMNs) and significant new use notifications (SNUNs) into EPA before the currently-modest PMN fee of $2,500 per substance jumps ups considerably after a new “user fee” fee structure is devised.
• Compromise #3: Preemption of State Chemical Regulatory Actions
Conventional wisdom held that commercial interests would only become overtly supportive of amending TSCA when they had reason to believe the quid pro quo for providing more regulatory authority to EPA would be federal preemption of the growing patchwork of state legislative efforts to regulate and restrict chemical substances. After years of partisan efforts, a gift from the legislative gods emerged unexpectedly in May of 2013 when Senator Frank Lautenberg (D-N.J.) teamed with Senator David Vitter (R-La.) to introduce bipartisan TSCA reform legislation. The bill embraced a middle ground and would have granted the fulsome state preemption the business community sought. Almost as unexpectedly, and fueled by the advocacy of Senator Barbara Boxer (D-Calif.), opposing preemption became a cause celeb for the original proponents of TSCA reform, and delayed a final bill for three full years.
At the end of the day, the amendment's terms on preemption curiously (given Senator Boxer's very vocal support for the House version of the legislation) reflect the most important features of the Senate bill, with modifications reported to have been agreed to only due to personal efforts of Senator (and Environment and Public Works Committee Chair) James Inhofe (R-Okla.) to reach an accord with Senator Boxer.
The compromise language ensures that state actions may continue to be taken pursuant to existingstate laws enacted before August 31, 2003, (not surprisingly, a date targeted to ensure the continued viability of California's Proposition 65), and that other state actions taken prior to April 22, 2016, (Earth Day) may remain in place. Subject to these exceptions, new state actions will be preempted during the period commencing when EPA announces, pursuant to Section 6, the scope of the risk evaluation for a particular chemical substance and use combinations. This “pause” will conclude after 30 months or when EPA has completed its risk evaluation (whichever is sooner). If EPA has determined following its risk evaluation that the substance does not present an unreasonable risk to human health or the environment in the context of certain uses, then new state actions limiting or prohibiting those uses are effectively preempted. Final regulatory actions issued by EPA will preempt new state requirements if the state requirements are intended to address the same risks addressed in EPA's risk determinations and regulatory actions.
Numerous opportunities will continue to exist for activist states to work around the final, very limited preemption language. For example, state requirements for reporting, monitoring, and other “information obligations” that are not otherwise required under TSCA are not preempted. Moreover, states may seek complete or partial waivers of federal preemption, and of the temporary preemption phase as well. Of course, a state may simply initiate a new action under a legislative authority not considered to be preempted (e.g., state water or air pollution laws and state waste management authorities). In addition, the TSCA amendments permit states to issue requirements that are identical to an EPA requirement issued under TSCA.
Potential Effects on Businesses: Ironically, state enthusiasm for taking legislative action on certain chemicals might be further encouraged by provisions in the final bill. First, the temporary preemption provisions might cause especially eager state legislatures to seek to issue new actions in advance of EPA's initial prioritization announcements to be issued not later than 180 days following enactment. Second, the final bill provides that a state's chemical-regulatory requirement is not preempted if the state enacts a requirement that is identical to an EPA requirement. This has enabled the concept of state and federal “co-enforcement” of TSCA to emerge in the context of the debate and find its way into the final terms on preemption. Under the amendments, states are able to independently assess penalties for violations of state requirements if the requirement is identical to one issued by EPA under TSCA (provided EPA has not already issued an “adequate” penalty). EPA would not be permitted to issue a separate penalty for the same violation in addition to a state penalty if the aggregate fine would exceed the statutory limit under TSCA. Regulated entities could also face penalties under TSCA's provision that authorizes third parties to bring civil actions in federal court alleging violations of certain provisions of TSCA (after providing notice to EPA).
The amended law should serve as a reminder to entities having even recordkeeping obligations under TSCA to be mindful that a state could enact legislation adopting existing TSCA recordkeeping and reporting rules (e.g., Sections 8(c) and 8(e)) hoping that state inspectors (having little if any TSCA experience) might visit facilities and corporate headquarters located in the state to search for lucrative penalty opportunities. Perhaps an even greater concern emerges because the amended law permits EPA to share with state regulatory agencies, for purposes of implementing and enforcing environmental programs, confidential business information provided to EPA by entities subject to TSCA. If they are not doing so already, businesses in the U.S. will need to keep an eye on new and developing state chemical control legislation and regulations.
Near-Term Prognosis:
Simple Steps to Prepare
It is difficult to predict how readily EPA will be able to implement the amended law. EPA's TSCA program continues to struggle with resource issues. Moreover, the impending presidential election, coupled with a possible change in leadership (and potentially a change in temperament) at the agency, could present further challenges and delays. EPA likely will have a difficult time simply meeting the largely procedural and administrative obligations that must be met within the first two years of enactment, including: a) identifying initial lists of high (and low) priority substances; b) promulgating various policies, procedures, and guidance to implement the prioritization and risk evaluation processes, and new CBI review procedures; c) establishing a revised and expanded fee structure before new and increased user fees can be selected.
Nevertheless, there are certain steps businesses that are subject to EPA requirements can take now to prepare for changes to come under a revamped TSCA.
• Review your product lines now. Identify product lines that are of greatest value, and determine which ones are likely to become “high priority” targets for EPA risk evaluations. Ascertain whether the product lines have or depend upon component chemicals that are among the “Work Plan” chemicals. Flag those which have characteristics of persistence and bioaccumulation and those which are carcinogens, and commit to collating and reviewing all health, safety and environmental fate and effects data you can gather. Begin to identify all ongoing and foreseeable uses for the substance(s)—whether or not they are engaged in by your business. Fully assess whether any of those uses can lead to exposures to consumers, the general population and susceptible subpopulations. Do some business planning now, because customers and users of your products may begin de-selecting them if they learn of an EPA decision to commence a risk evaluation that includes your chemical.
• Confirm the chemical nomenclature for all substances in your product lines.When EPA begins to re-establish the inventory and to classify the active and inactive substances, the process for confirming an “active” inventory listing for your chemical substances will result in new scrutiny being given to your use of chemical names and CAS numbers. The TSCA Inventory is the dividing line between “existing” and “new” chemicals. Being on the wrong side of a nomenclature debate with EPA can result in an important product being erroneously treated as “new” or not listed.
• Continue to keep ahead of state chemical-regulatory actions. As discussed above, preemption under the amended TSCA will be limited, and the desire among certain states to be involved in the regulatory arena is unlikely to diminish soon.
• Review existing claims of confidentiality for information in EPA's possession.New CBI claims will be subject to scrutiny and existing claims will undergo another review eventually. Be prepared to re-substantiate confidentiality claims previously asserted and to carefully substantiate initial claims.

• Submit new chemical and new use notifications now before higher user fees kick in and new findings must be made.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=90349361&vname=dennotallissues&fn=90349361&jd=90349361

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Congress Must Pass Overhaul to Outdated Chemical Regulations

May 24, 2016 | The San Francisco Chronicle

Congress may not agree on much these days, but this week’s badly needed update to the Toxic Substances Control Act appears to be a rare exception. The House of Representatives passed this crucial update on Tuesday, and the Senate needs to do the same.
The current act, which regulates chemical safety, hasn’t been updated since it was signed into law in 1976. It has major flaws that have prevented the Environmental Protection Agency from doing a thorough job of vetting the thousands of chemicals that surround us daily. The EPA has to prove that a chemical poses a potential risk before it demands testing. The 1976 act also assumed that most chemicals already on the market were safe.
After many agonizing years, disagreements and delays, everyone from liberal Democrats to Republicans in Congress has agreed on a compromise. The new act will affect nearly every product you use on a regular basis.
“Even where the hazards are recognized, the EPA has lacked the authority to do anything about them,” said Richard Denison, lead senior scientist at the Environmental Defense Fund. “That’s why we believe it’s so important to get a new law, even if it’s not perfect.”
The measure is also a final victory for California’s outgoing Democratic Sen. Barbara Boxer. Boxer, the top Democrat on the Senate Environment and Public Works Committee, fought to strengthen the bill after one of its original sponors, Sen. Frank Lautenberg, D-N.J., died in 2013.
Both sides of the aisle have been searching for an update to the 40-year-old act since President Obama’s first term. There was an understanding on both sides that Americans needed more information about the thousands of older chemicals that remained untested. The EPA has required testing for only about 200 chemicals over the past 40 years.
The chemical industry has lobbied hard against stringent federal regulations, but it, too, had reasons to desire a new plan. Many states — including California — had placed their own restrictions on some chemicals out of impatience with federal delay.
The compromise bill is still, well, a compromise.
It limits the ability of states to set their own chemical regulations, a key concession to the industry. (It does, fortunately, allow states to seek waivers allowing them to regulate a chemical for compelling conditions.) Some of its provisions allowing for imported products, which often contain dangerous chemicals, are concerning.
But there’s very good news in the bill, too.
It allows the EPA to start reviewing some of the most toxic chemicals that permeate our daily lives — the likely suspects include asbestos, formaldehyde and flame retardants.
It allows the EPA to start charging industry user fees for the cost of data collection and testing. It also requires the EPA to determine whether new chemicals meet a risk-based safety standard before they’re allowed on the U.S. market.
These are changes that will finally allow the EPA to do its job as the nation’s chemical regulator. It may not be perfect, but it deserves to be the new law of the land.
The worst chemicals
When Congress passes the Toxic Substances Control Act overhaul, it will expand the Environmental Protection Agency’s ability to regulate chemicals. Here are some of the top priorities.
Asbestos: The EPA banned all new uses of asbestos in 1989, but uses developed before then are still allowed. The U.S. Department of Health and Human Services classifies it as a known human carcinogen. Studies have linked asbestos exposure to an increased risk of lung cancer, mesothelioma, pleural disorders and other inflammatory diseases.
Formaldehyde: Formaldehyde is a respiratory irritant. At certain levels, it’s known to cause cancer, especially cancers of the nose and throat. It has been linked to asthma and allergies in children, and chest pains, shortness of breath and nausea in adults.
Flame retardants: Some flame retardants are hormone disruptors and have been linked to neurodevelopmental delays in children. Many are also “persistent” chemicals, which means they persist in the environment and accumulate in the body.
Styrene: Styrene is used in plastics and rubber manufacturing. It affects the nervous system and has been listed by the U.S. Department of Health and Human Services as being reasonably anticipated to be a human carcinogen. In laboratory animals, it has been linked to impaired learning and sperm damage.
Cancer clusters: Communities experiencing elevated rates of cancer will be able to ask the federal government for a coordinated response.
http://www.sfchronicle.com/opinion/editorials/article/Congress-must-pass-overhaul-to-outdated-chemical-7943367.php

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House Sets Stage to Tighten Oversight of Household Chemicals

May 24, 2016 | US News & World Report

By Alan Neuhauser

The first major update to the nation's toxic chemicals law in four decades passed the House by a sweeping margin Tuesday.
The bill applies to harmful chemicals ranging from home cleaning products to paint thinner, furniture and clothing. It requires the Environmental Protection Agency to review up to 20 chemicals a year against new safety standards, and it makes it more difficult for industry to avoid public scrutiny by claiming their chemicals are proprietary.
The measure, an update to the 1976 Toxic Substances Control Act, passed 403-12. In the works for three years, it's expected to pass the Senate, and President Obama has said he will sign it.
[READ: Feds Finalize First-Ever Methane Rules, Targeting Leaks From Fracking, Pipelines]
"While not perfect, the bill meets the high goals set by the administration for meaningful reform," the White House said in a statement Monday. "The bill is a clear improvement over the current TSCA and represents a historic advancement for both chemical safety and environmental law."
Some environmental and Democratic lawmakers remain critical of the bill. It broadly prevents states from implementing new standards for chemicals in most cases, forcing state regulators to instead wait for the chemicals to undergo EPA review, a process that can take more than three years. Rep. Paul Tonko, D-N.Y., termed it a "regulatory pause," which he said amounted to "a core flaw in reform that cannot be ignored." He voted against the bill Tuesday.
The bill does not pre-empt state chemical laws in place by April. In a letter to lawmakers last summer, the National Association of Manufacturers said "a patchwork of confusing, often contradictory, regulations for manufacturers and consumers" had created a need to update federal toxic chemicals standards.
http://www.usnews.com/news/articles/2016-05-24/house-sets-stage-to-tighten-oversight-of-household-chemicals

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New TSCA Bill Falls Short Of Protecting Americans From Toxic Chemicals

May 24, 2016 | Environmental Working Group

By Melanie Benesh and Scott Faber

While the new version of the Toxic Substance Control Act, or TSCA, that is likely headed to President Obama’s desk includes some important improvements, the bill falls short of adequately protecting Americans from exposure to hazardous chemicals.
Is the bill better than current law? It’s a low bar, because TSCA is widely considered the least effective environmental law on the books.
Here’s what Congress got right:TSCA will now require the Environmental Protection Agency to determine whether a chemical is likely to meet the safety standard (albeit an untested standard) before it enters the market.TSCA will now require EPA to consider the most vulnerable populations, such as pregnant women and children.TSCA will now give the EPA new tools to collect data on chemicals.TSCA will now require EPA to quickly regulate (or ban if needed) the chemicals that build up in our bodies and persist in the environment.TSCA will now require EPA to quickly review and regulate other “high priority” chemicals, including chemicals stored near drinking water sources, and sets deadlines for companies to comply with new EPA rules.TSCA now limits the ability of companies to keep data secret by requiring regular substantiation of confidentiality claims, including old “trade secret” claims.TSCA will not include a list of “low hazard” chemicals that could shield dangerous chemicals.
Here’s what Congress got wrong:The compromise bill to be voted on today by the House would continue to tie the hands of the states by suspending state action while the EPA studies a chemical’s safety. It would grandfather existing state laws and allow states to quickly act to regulate a chemical that EPA might deem a “high priority” chemical. But if a state fails to act quickly, state action would be suspended for up to three years while EPA completes its review. Second, the bill doesn’t require adequate funding from the chemical industry. Even the best law will be meaningless if EPA doesn’t have the resources needed to review the hundreds of dangerous chemicals already on the market. Up to half of the chemicals could be chosen by the chemical industry. To make TSCA better than the status quo, Congress should have provided enough funding to review the most dangerous chemicals in a generation – not a century. Here’s what it would take to get the job done. The compromise bill only provides about half of what’s needed.Third, the bill fails to fully eliminate cost from EPA’s consideration of how to regulate a chemical. Both bills purport to end the current requirement to consider the cost of regulation, but each included “poison pill” provisions that could keep EPA tied in legal knots. Using the same tough safety standard already applied to pesticides and food chemicals makes more sense, but negotiators should have at least removed vague requirements that rules be "cost-effective.”
Will the new safety standard crafted by negotiators give EPA the power to restrict or ban the most dangerous chemicals? We'll see.
The failure to include a bulletproof safety standard or sufficient resources, along with the uncertain effects of new restrictions on state action, could ultimately result in less regulatory action than supporters claim. Under the best-case scenario, scores of chemicals could be regulated within a decade. Under the worst-case scenario, chemical companies use litigation to limit EPA’s authority – which is exactly what happened 25 years ago, when the courts overturned EPA’s attempt to ban asbestos.
Ultimately, the right question is not whether this rewrite is better than current law. The right question is whether this version meets the expectations of reasonable Americans who are increasingly concerned about exposure to hazardous chemicals.
Most consumers expect EPA has the power to quickly review the most dangerous chemicals and that the chemicals in their cleaners are at least as safe as chemicals in their food. The new bill fails to meet that expectation.
http://www.ewg.org/enviroblog/2016/05/new-tsca-bill-falls-short-protecting-americans-toxic-chemicals

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Will Congress End the Era of Unlimited, Untested Chemicals and Reform TSCA?

May 24, 2016 | EcoWatch

By Elizabeth Thompson

Like all Americans of my generation, I came of age in a sea of industrial chemicals. From the stain-resistant carpeting under my feet and the plastics of the computer I’m typing on, to the clothes I’m wearing, industrial chemicals are used in most every consumer product you can think of. While we all appreciate and rely on many of these products, they’ve introduced hundreds of toxic chemicals into our homes, workplaces, schools and our bodies.
Consider that 10 trillion of pounds of chemicals are produced annually in America—including billions of pounds of certain toxic chemicals like formaldehyde, benzene and bisphenol-A (better known as BPA). Most Americans assume that the government requires that chemicals be shown safe before coming onto the market and into our homes, but that couldn’t be further from the truth.
But the era of unlimited, untested chemicals may be about to come to end.
Congress is about to vote on a major reform of America’s main chemical safety law, the Toxic Substances Control Act (TSCA). Passed nearly 40 years ago, TSCA was weak to begin with and is now badly broken. It allowed the 62,000 chemicals in use at the time to remain on the market, simply assumed to be safe. The law set the bar for regulating a chemical so high that the U.S. Environmental Protection Agency (EPA) can’t restrict even well-established hazards like asbestos—which remains legal in America—or ensure the safety of hundreds of new chemicals coming onto the market each year. The result is that in nearly 40 years, the EPA has required testing on fewer than 300 chemicals and regulated only five chemicals under TSCA.
As we learned more about the health risks posed by certain chemicals—including cancer, reproductive problems and developmental issues—people around the country started to demand action on harmful chemicals. And in recent years, state legislatures and major companies have responded by banning a number of high profile chemicals in some products.
The result was not only stepped-up attention on toxic chemicals, but also a kick in the pants for an industry that had previously relished the lack of federal regulation. Thanks to activist pressure, companies found themselves at risk of losing hundreds of millions of dollars if a chemical in one of their products were targeted by a state or retailer. Many companies decided they could accept more federal regulation if it resulted in a predictable system that restores consumer confidence in the safety of their products.
That presented a political opportunity for savvy legislators: a rare, but powerful alignment of interests that could benefit both bottom lines and public health. Progressive champion Sen. Tom Udall found an opportunity to work with staunch conservative Sen. David Vitter. The powerful environmental advocate Sen. Sheldon Whitehouse found himself aligned with climate skeptic Sen. Jim Inhofe.
The result is a strong bipartisan compromise now before Congress, the Lautenberg Act. The bill would require review of chemicals in use today and improve scrutiny before new ones are allowed on the market. It requires protection for vulnerable populations like children, pregnant women, workers and those living in highly polluted communities. It would provide the EPA with greater ability to require testing of chemicals and to restrict known dangers like asbestos.
Progress required legislators to harken back to an earlier era, to take some political risk and work to find agreement with Members with opposing views.
The bill certainly remains a compromise and the new law won’t fix the problem of toxic chemicals overnight. We’ve dug ourselves a deep hole and there are thousands of chemicals that need review. But we have to start and the first step is passing this important reform.
https://ecowatch.com/2016/05/24/congress-reform-tsca/

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One Step Forward and Two Steps Back on Toxic Chemicals

May 24, 2016 | Huffington Post

By Rena Steinzor

Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry. The deal places burdens on the Environmental Protection Agency (EPA) that will undermine public health and environmental protections for many years to come.
A well-funded, politically empowered EPA that employed the best and the brightest of American scientists might be able to make lemonade out of the lemons scattered throughout this unfortunate legislation. But it’s far more likely that the agency we have today will soon become mired in “paralysis-by-analysis” before it takes action and a flood of litigation after it - only occasionally - acts.
Toxic chemical exposures are so loosely regulated that the Government Accountability Office, the top-flight auditor of the federal government, has placed EPA’s regulatory efforts on its select list of “high risk” programs that are vulnerable to mismanagement and ineffectiveness. In contrast to what many Americans believe, new chemicals are not required to undergo any testing before they are sold in large volumes in the marketplace unless EPA puts its foot down and are rarely subject to regulatory controls until some entity or person throws them out. The old TSCA, enacted in 1976 and never amended, was too weak to give the agency the power it needed to resist chemical industry efforts to over-complicate simple testing and control requirements. Among other shortcomings, the statute as interpreted by the courts demanded that EPA demonstrate that controls were feasible - translated as not too expensive in relationship to their benefits - and that the agency explain how it had considered all of the less expensive regulatory alternatives.
Citizens of Charleston, West Virginia got a grim reminder of these unfortunate circumstances when an untested chemical (4-methylcyclohexanemethanol) used to “wash” raw coal to remove impurities spilled into their water supply. Stymied by a vacuum of information on the chemical, regulators were at a loss in advising residents whether and for what purposes to use the water. Governor Earl Ray Tomblin told citizens that they were on their own in deciding what to do, giving a foreboding glimpse of what life without government could become if the delicate balance in American politics erodes existing protections any further.
The current TSCA revision bill gives EPA greater authority to require testing of new chemicals, but it does not give the agency anywhere near the resources it will need to do a decent job. The domestic chemical industry brags that it sells $800 billionworth of chemicals annually, accounts for 25 percent of Gross Domestic Product, and “directly touches” 96 percent of all manufactured goods. Yet industry fees needed to support EPA’s vital work to prevent toxic chemical exposures - a Herculean task that includes the backlog produced by 40 years of weak oversight - are capped at $25 million annually. In fact, the legislation would cancel these fees in any year that Congress does not maintain general taxpayer revenues devoted to the revival of this vital program at the levels appropriated in Fiscal Year 2014. Or, in other words, the legislation would cancel what industry must pay if Congress cuts the revenues you and I spend to support this weak program below what we paid a few years ago, perpetuating the resource gap that has confounded EPA’s efforts to get a grip on toxics.
Congress could have created a more effective incentive for EPA to bridge the yawning data gap regarding the nation’s most dangerous chemicals had it established a robust schedule for evaluating them, but once again it ducked that responsibility. Instead, the agency is only required to begin work on “risk evaluations” for ten chemicals within six months after the date of enactment. Three and one-half years after the bill becomes law, EPA must ensure that it has begun evaluations of 40 more chemicals but, incredibly, only 20 of those must be high priorities from a public health and environmental perspective. In a telling recognition of the legislation’s true agenda, the other 20 must be “low-hazard” chemicals for which manufacturers seek the government’s seal of approval. This approach runs the risk of transforming TSCA into a parody of a self-respecting statute by placing public health, the environment, and industry self-interest on the same plane.
But perhaps the most corrosive, long-term effect of this compromise is hidden deep within its 181 pages. Supporters tout the legislation’s new prohibition on considering costs in evaluating a chemical’s risks, and this approach is definitely the one step forward that some environmentalists fought hard to win. But evaluations don’t curb toxic exposures.
Before EPA can actually issue any rule controlling the uses of a toxic chemical product, it must conduct a virulent form of cost-benefit analysis. Those analyses must determine not just whether the public health and environmental benefits of such controls outweigh the costs the controls will impose on the chemical industry, as is typically done today under presidential executive order. Instead, the agency must determine the “reasonably ascertainable economic consequences of the rule,” including its “likely effect on the national economy,” phrasing that parrots the worst language of existing law. But existing law only required a “statement” regarding those impacts because it was passed years before extensive cost-benefit calculations became de rigueur. Walking purposefully back two steps, the compromise legislation thrusts those considerations into the context of a formal analysis that must also quantify the impact of “one or more primary alternative regulatory actions” that EPA considered.
Cost-benefit analyses limited to benefits for the public and costs for the specific industry are already hundreds of pages long. An analysis of their effects on the entire country’s economy could increase this frantic and frequently erroneous number crunching by a significant amount. Certainly, a courageous and well-funded EPA could make manageable this requirement. It’s far more likely, though, that the agency will slow down even more as it wrings its hands under the bright spotlight of industry scrutiny. Worse, it’s unlikely that any environmental statute will ever survive amendment again without industry demands that comparable language be added.
Rena Steinzor is a University of Maryland Law Professor and a Member Scholar of the Center for Progressive Reform (CPR).
http://www.huffingtonpost.com/rena-steinzor/crossing-the-rubicon-on-t_b_10110578.html

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Environmentalists: Toxic Substances Bill Would Hurt New York

May 24, 2016 | News 12 Long Island

Congress is considering legislation that some environmentalists say would seriously hamper New York state's efforts to protect public health, air, land and groundwater.
The bill would update the Toxic Substances Control Act of 1976 - a law aimed at regulating chemicals found in everyday products.
Federal lawmakers have been negotiating this new measure for months, but Adrienne Esposito, of the Citizens Campaign for the Environment, says it would prevent states from having stricter laws than the federal government regarding toxic substances.
"We're very nervous that this will pass. This would change everything in New York and really make us weaker and more vulnerable to toxic exposure and that's the last thing we need," Esposito tells News 12 Long Island.
http://longisland.news12.com/news/environmentalists-update-to-the-toxic-substances-control-act-of-1976-would-hurt-new-york-1.11836565

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Energy News

House $32B Interior-EPA Bill Would Block Obama Initiatives

May 24, 2016 | E&E - Greenwire

By Sean Reilly, Amanda Reilly and Phil Taylor

Republican House appropriators today debuted a fiscal 2017 spending bill for the Interior Department, U.S. EPA and the Forest Service that would generally keep funding at close to this year's levels but again target key Obama administration regulatory initiatives.
The bill, which also covers organizations like the Smithsonian Institution and White House Council on Environmental Quality, would set aside about $32.1 billion in funding, almost equal to this year's threshold but $1 billion below the White House's request.
EPA would absorb a relatively small cut, while the legislation contains modest increases for Forest Service firefighting efforts and for the National Park Service on the 100th anniversary of its founding.
The 154-page draft would once again use the appropriations process to attack administration efforts to limit greenhouse gas emissions, tighten water regulations, and raise fees on some oil and gas operations and grazing permittees.
"The EPA's overreach continues to cause economic harm, and this bill denies funding for more job-killing regulators while providing necessary resources to effective programs that actually improve the environment and protect our natural resources," Rep. Ken Calvert (R-Calif.), chairman of the Interior, Environment and Related Agencies Appropriations Subcommittee, said in a statement.
The subcommittee has scheduled a markup on the bill for tomorrow morning (E&E Daily, May 23). Even though action by the full Appropriations Committee would typically soon follow, the panel has yet to announce a date.
"I think the working assumption is tomorrow they're just going to kind of rubber-stamp this, and wait until the full committee [markup] to dig into the amendment process," Cameron Witten, government relations and budget specialist at the Wilderness Society, said in a phone interview this morning.
Tomorrow's markup will kick off a pitched partisan battle over spending levels and policy provisions likely to last well past the Oct. 1 start of fiscal 2017. The Senate Appropriations Committee has yet to unveil its version of the bill.EPA
EPA's overall budget would take a hit under House Republicans' proposed spending legislation.
EPA would receive $7.98 billion, about $164 million less than the agency's current funding level. The bill's proposed spending would also fall far below the president's fiscal 2017 budget request of $8.26 billion for the agency.
As part of those spending cuts, House Republicans say they are targeting EPA's regulatory programs, reducing them by $43 million under the agency's current funding level, or $187 million below the president's budget plan.
Staffing at EPA, too, would be pared back under the House GOP appropriations bill. The legislation would hold the agency's number of full-time employees to 15,000, short of the president's request of 15,416 workers in fiscal 2017. President Obama's budget plan outlined an increase of 40 employees from fiscal 2016 EPA staffing levels.
Still, the overall proposed cut is less severe than what House Republicans sought last year, when they unsuccessfully attempted to chop EPA funding by 9 percent.
As in the past, the GOP is hoping to use the bill to undercut the administration's climate agenda.
A rider in the bill would bar EPA from implementing or enforcing the Clean Power Plan, which is aimed at cutting carbon dioxide emissions from existing coal-fired power plants, or the agency's CO2 limits for new and modified power plants.
The bill would prohibit EPA from using any funds to propose, finalize, implement or enforce its methane limits for the oil and gas industry, as well as prevent the agency from regulating or requiring reporting of greenhouse gas emissions from livestock production.
EPA would likewise be prohibited from phasing out certain short-lived heat-trapping chemicals known as hydrofluorocarbons or from approving acceptable alternatives under the Significant New Alternatives Policy, or SNAP, program.
The Obama administration this year has proposed to replace a host of the chemicals that are used domestically as refrigerants and foam-blowing agents and is working with nations to adopt a new Montreal Protocol amendment aimed at phasing down global HFC use.
The spending bill would carve out $3.37 billion for state and tribal assistance grants, down about 4 percent from $3.52 billion this year but slightly more than the administration's $3.28 billion proposal.
Another rider would bar EPA from incorporating the social cost of carbon, a federal estimate of the damage climate change causes, into any new rulemaking or guidance document until a new interagency working group revises current cost estimates.
The bill would require the president to submit a report to congressional appropriators on all federal funding for climate change programs, projects and activities in fiscal 2016 and 2017.
In what is likely to be a source of controversy between bioenergy boosters and environmentalists, the bill also includes a rider to require EPA to base policies on the principle that forest biomass energy does not "increase overall carbon dioxide accumulations in the atmosphere" if data show that U.S. forest stocks are stable or increasing.
Pro-bioenergy senators attached a similar biomass carbon-neutrality provision to the Senate energy bill earlier this year.
House Republicans are similarly hoping to use the Financial Services and General Government fiscal 2017 spending bill to undermine Obama's climate goals.
A draft of the bill released today and also scheduled for a subcommittee markup tomorrow would bar funding for a presidential energy and climate change assistant or for "any substantially similar position."
House Republicans have previously attempted to add language to appropriations bills to defund the post, which is currently held by Dan Utech.
The financial services bill would also weaken a 2013 Treasury Department guidance to limit American support for multilateral development banks' funding for overseas coal projects.
The Obama administration issued the guidance to "level the playing field" for alternative energy.Water
The 2017 Interior EPA spending bill would set aside $2.07 billion for the Clean Water and Drinking Water state revolving funds, slightly more than the president's request.
The Clean Water SRF -- which funds stormwater and sewage treatment systems -- would get $1 billion, slightly more than the $979.5 million in Obama's budget request and just under the $1.018 billion lawmakers appropriated for fiscal 2016.
The drinking water fund -- which is reserved for water treatment facilities and drinking water systems -- would receive $1.07 billion, a 24 percent increase from the $863 million in current spending levels.
The ongoing lead contamination crisis in Flint, Mich., in which corroded lead pipes leached the powerful neurotoxin into household tap water, shined a light on the nation's crumbling water infrastructure.
The EPA spending bill would provide legal authority to states to relieve debt in areas of the country with high lead levels in the drinking water.
House appropriators would set aside $50 million for loans under the Water Infrastructure Finance and Innovation Act (WIFIA), marking the first time the loan program would be funded since it was passed into law in 2014.
A pilot program that leverages Treasury bonds for water projects costing more than $20 million, WIFIA would be authorized to receive $35 million in fiscal 2017 under the bill.
The president's budget requested only $20 million -- $15 million for loans and $5 million to administer the program.
In addition, the spending bill would allocate $109.7 million for state grants to improve operations and oversight of drinking water programs, a $7.7 million increase above the current level.
It would also set aside $6.5 million for integrated planning activities, steps that communities must take to become compliant with the Clean Water Act.
House appropriators added a number of water policy riders, similar to provisions in the fiscal 2017 energy and water spending bill. The most prominent one would block EPA from making changes to the definition of "navigable waters" under the Clean Water Act.
The U.S. Chemical Safety Board's budget would remain flat at $11 million, short of the $12.436 million the agency requested. The board said it wanted to launch a new safety conference and complete more investigations into industrial accidents (E&ENews PM, Feb. 9).Interior
The bill would block a major Bureau of Land Management rule to curb the escape of natural gas from drilling operations on federal lands in the West and would prevent the agency from hiking royalty rates for oil, gas or coal.
The measure would also reject an Obama administration proposal to impose new inspection fees on onshore oil and gas drillers and to raise fees on thousands of grazing permittees.
The bill would require the Fish and Wildlife Service to reissue rules removing Endangered Species Act protections for wolves in Wyoming and the Great Lakes.
FWS delisted the predators in those areas in 2011 and 2012, but the decisions were overturned in federal court.
The wolf provision also appeared in both the House and Senate spending bills last fiscal year but was nixed from the final omnibus package.
The bill would also prevent the National Park Service from imposing a ban on bottled water sales at national parks.
The bill includes $3.9 billion for Interior and Forest Service wildfire programs, which would fully fund the 10-year average cost of wildland fire suppression, the committee said. It also has $575 million for hazardous fuels management, which is $30 million above the enacted level.
The bill would provide $322 million for the Land and Water Conservation Fund, the government's main program for acquiring new lands, preserving private lands and helping states fund local recreation projects.
That's a major tumble from the $450 million enacted level, though it is a slight bump over the fiscal 2015 level of roughly $300 million.
Funding within LWCF would be shifted to state and local recreation and battlefield preservation and away from federal land acquisition, the committee said.
Within Interior, $1.2 billion would be spent on BLM, a decrease of $10 million from the current level.
FWS would receive $1.5 billion, $17 million below the enacted level.
NPS would get $2.9 billion, an increase of $71 million from the current level. That includes $65 million in "targeted increases for park operations and maintenance to help reduce the maintenance backlog," the committee said.
The bill would also double funding to $30 million for the Centennial Challenge, a program that leverages non-federal funding to support key projects associated with the NPS centennial.Forest Service
The spending legislation would increase the share of the Forest Service budget devoted to fires from 52 percent to 55 percent.
The bill would provide $3.9 billion for wildfire programs at the Interior Department and Forest Service, enough to cover the 10-year average cost of suppression. While the bill would keep pace with the rising cost of fighting fires, it falls short of the 2016 omnibus bill, which contained a one-time $600 million boost above the 10-year average cost of suppression to prevent the agency from having to borrow money from non-fire accounts (E&E Daily, Dec. 17, 2015).
Lawmakers didn't include a change in how firefighting is funded, brushing aside repeated requests from Agriculture Secretary Tom Vilsack, whose department oversees the Forest Service. Vilsack has asked for a disaster fund devoted to fire management and said he'll no longer transfer funds out of non-fire accounts to cover wildland fires.
Lawmakers and Vilsack agree that fire budget borrowing takes money away from activities that could make forests less fire-prone, but the disaster funding idea hasn't advanced in Congress.
The spending bill also would block further closures of Forest Service lands to hunting and recreational shooting, with an exception for public safety.Coal and mining
The bill aims to kill the Office of Surface Mining Reclamation and Enforcement stream protection rule due out in July.
With Indiana lawmakers the latest to protest the rule on behalf of state regulators with a letter to OSMRE, the committee added its own provision to stop "potentially job-killing" changes.
Environmentalists argue the rule is necessary to protect ecosystem and public health (Greenwire, May 13).
Under the spending bill, OSMRE would receive $119.3 million, a slight decrease from last year's $123 million and less than the Obama administration's 2017 request of $128 million.
The bill would maintain state regulatory grants at $68 million but would not increase oversight as Obama requested.
The legislation would allocate $90 million to continue a pilot program for abandoned mine reclamation work that also helps hard-hit coal communities in Appalachia stimulate economic growth.
Appropriations Chairman Hal Rogers (R-Ky.) and the Obama administration have separate proposals for speeding up $1 billion from the abandoned coal mine reclamation fund.
Another provision would block EPA from continuing work on regulations to add financial assurance requirements for hardrock mines under the Superfund program.
The bill, as in years before, includes a prohibition on the administration changing the definition of fill material under the Clean Water Act, which could affect mining permits.
It also requires the administration to provide lawmakers with reports on coal mine permits to prevent backlogs.
Reporters Kevin Bogardus, Dylan Brown, Marc Heller, Sam Pearson and Tiffany Stecker contributed.
http://www.eenews.net/greenwire/2016/05/24/stories/1060037787

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House GOP FY17 Bill Blocks Major EPA Rules But Avoids Large Funding Cuts

May 24, 2016 | Inside EPA

By David LaRoss

House Republicans are floating a fiscal year 2017 funding bill for EPA that would block a host of major agency regulations including its climate rules for the power and oil and gas production sectors as well as its Clean Water Act (CWA) jurisdiction rule, but the legislation would make only slight cuts to EPA's overall funding levels.
The bill, unveiled May 24 ahead of a May 25 House Appropriations Committee interior panel markup, would fund EPA at $7.98 billion in FY17. That would be $164 million less than its currently enacted $8.14 billion funding level and also $291 million less than President Obama's proposal to fund EPA at $8.27 billion in FY17.
Spending bills in prior years have drawn significant Democratic opposition for pursuing much larger funding cuts, but it appears that debate over this year's measure is more likely to focus on the slew of policy provisions.
Despite threats from congressional Democrats that they and President Obama will block any funding bill that includes environmental policy riders, the House proposal includes provisions to halt a raft of major EPA rules that cover air emissions, climate change, the CWA, pesticides and the Superfund program.
“To stop the EPA’s anti-growth agenda that includes various harmful, costly, and potentially job-killing regulations, the bill contains a number of legislative provisions,” says a May 24 statement from the GOP majority on the House Appropriations Committee's interior, environment and related agencies panel that oversees EPA's budget.
On climate change, the bill would block funding to implement EPA's final GHG standards for existing power plants, known as the Clean Power Plan -- though the rule has already been stayed by the Supreme Court pending the outcome of the challenge to its legality.
The agency's final standards for new and modified plants, which are also being litigated, would be halted as well under the funding bill, as would use of the Obama administration's contentious social cost of carbon, used to calculate the benefits of many climate rules.
Similarly, other riders would forbid EPA from crafting any new rule or guideline for reducing methane emissions from oil and gas extraction operations -- halting its recently finalized new source performance standards for the sector to curb the potent GHG from the sector. It would also halt EPA from pursuing any work on a similar rule for existing sources, for which EPA recently launched a data collection request.
Another rider would block EPA's final rule on when to combine, or “aggregate,” air permits for oil and gas sector sources that it issued alongside the methane rule and data collection.
The agency's rules limiting use of existing hydrofluorocarbon (HFC) refrigerants and foam blowing agents based on their global warming potential under the Significant New Alternatives Policy program would also be halted under the appropriations bill, although it would not affect regulation of new chemicals.
Policy Restrictions
Beyond climate issues, the proposed bill includes a measure the GOP has long sought that would end funding to implement EPA's CWA jurisdiction rule, another contentious policy that has been stayed until courts rule on its legality.
Another rider would allow the agency's 2015 tightening of the air standard for ozone to stand but would extend implementation deadlines, giving states until 2026 to craft their compliance plans compared to their current 2018 deadline. The provision would also extend attainment designation timeframes to 2024 for state decisions and 2025 for EPA's judgments, compared to the current 2016 and 2017 deadlines respectively.
The bill would stop funding for development of EPA's upcoming Superfund financial assurance rule for the hardrock mining industry, which the GOP has argued in past years would be duplicative and burdensome for the sector but the agency has signaled it continues to develop.
On pesticides, the spending bill targets one provision of EPA's 2015 worker protection standards, removing funding to enforce a requirement that employers make pesticide hazard information such as safety data sheets and pesticide application information available to a “designated representative,” though requirements to provide that data to workers and pesticide handlers would be unchanged.
Along with those provisions, the bill continues riders from prior years that bar changes to the CWA definition of “fill material”; requirements for air permits or GHG reporting on emissions from livestock; and Toxic Substances Control Act regulation of lead ammunition or fishing tackle.
A requirement for recipients of loans under the water infrastructure state revolving funds (SRFs) to use American iron and steel products where practicable would also continue from past years.
Funding levels
The proposed $7.98 billion FY17 budget for EPA is a cut from current levels but significantly higher than the House GOP has proposed for the agency in past years -- such as its FY16 bill that would have reduced EPA's appropriations to $7.43 billion. The difference is largely due to the SRFs, which are slated for a cut of $183 million in total, while in FY15 and FY16 legislators sought much larger reductions to those funds.
In particular, the drinking water SRF would see a boost to $1.07 billion, $207 million above its current level and $50 million above the White House's $1.02 billion request. The clean water SRF would be funded at exactly $1 billion, $390 million below current levels but $21 million above the requested $979 million.
The boost to drinking water funding is part of a push from the committee to support communities dealing with lead contamination, such as the high-profile case of Flint, MI.
Other measures in the bill include a boost of $7.7 million for state drinking water grants, up to $109.7 million, and new legal authority for states to provide debt relief for communities with high lead levels in their water supply.
Under the bill, EPA's nascent Water Infrastructure Finance and Innovation Act (WIFIA) loan program is targeted for $45 million to begin making loans to municipalities, in contrast to the president's request of $15 million for loan subsidies and $5 million for administrative costs in the program's first year of full activity.
Overall, the State and Tribal Assistance Grants account that includes the SRFs, categorical grants and other pollution control assistance would drop $150 million from $3.52 billion to $3.37 billion -- a figure $90 million above the president's $3.28 billion request.
The Environmental Programs and Management account, which supports most agency rulemaking activity, would drop from $2.69 billion by $140 million to $2.52 billion, while the president's budget would have boosted the account by $230 million to $2.92 billion. The subcommittee says that reduction “denies funding for more job-killing regulators” as part of holding the agency's overall staffing level at 15,000 full-time equivalent positions.
EPA's science and technology account would receive $720 million in FY17, down $53 million from its current $773 million and $62 million less than the White House's proposed $782 million.
The Superfund program would receive $1.12 billion from appropriations -- an increase of $110 million from its current $1.01 billion, and only $10 million less than the requested $1.13 billion.
Finally, EPA's Office of Inspector General would see a funding cut from $53 million to $50 million, rather than the boost to $60 million sought by the Obama administration.
http://insideepa.com/daily-news/house-gop-fy17-bill-blocks-major-epa-rules-avoids-large-funding-cuts

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House Bill Would Cut EPA Funds, Limit Rules

May 25, 2016 | BNA Daily Environment Report

By Brian Dabbs

The Environmental Protection Agency would receive close to $8 billion in fiscal year 2017 funding, about $164 million less than current levels, under a House Republican appropriations bill for Interior, Environment and Related Agencies released May 24.
The bill would undercut regulatory program allocations in President Barack Obama's FY17 budget by more than 20 percent, a figure that equates to a 6 percent, or $43 million, cut from FY16 funding levels, the committee said.
Funding in the bill is nearly $300 million less than the amount proposed by the White House in February. House Republican appropriators also tacked on a set of policy riders that would cut funding for key regulations, such as the Clean Water Rule and the Clean Power Plan.
“The EPA's overreach continues to cause economic harm, and this bill denies funding for more job-killing regulators while providing necessary resources to effective programs that actually improve the environment and protect our natural resources,” Ken Calvert (R-Calif.), the chief of the Appropriations environment subcommittee, said in a statement following the release of the text.
Contested Appropriations
Republican lawmakers on both sides of the Capitol lambasted EPA Administrator Gina McCarthy for several days of budget testimony in April over what they said was regulatory overreach (77 DEN A-21, 4/21/16).
The House funding bill would allocate roughly $3.18 million for the hazardous waste e-Manifest fund, a decrease of nearly $500,000 from the FY16 omnibus.
The e-Manifest rule (RIN:2050-AG20), promulgated in early 2014, authorized the use of electronic manifests as a means to track shipments of hazardous waste from generation to receipt and disposal under the Resource Conservation and Recovery Act in order to decrease illegal disposal.
The House legislation decreases overall EPA science and technology funds from $735 million to $720 million.
Despite top-level cuts, the bill would allocate $33 million above FY16 levels for Superfund, the remediation program put into law through the Comprehensive Environmental Response, Compensation, and Liability Act.
The House legislation also would boost funding for the leaking underground storage tank trust fund program by nearly $3 million, while state and tribal assistance grants would receive more than $180 million.
Rulemaking Riders
House Republican appropriators took a broad swipe at EPA rulemaking, much of which is currently under litigation.
The legislation would bar the agency from using funds to implement the Clean Water Rule, also known as the waters of the U.S. rule.
That rulemaking, which clarifies which waterways are subject to federal Clean Water Act requirements, is currently stayed at the U.S. Court of Appeals for the Sixth Circuit (96 DEN A-18, 5/18/16).
The bill would also block funding for new Superfund financial assurances. The EPA is currently rolling out sector-by-sector regulations (98 DEN A-2, 5/20/16).
The legislation also would prohibit funding for another rule currently stayed by the Supreme Court: the contentious Clean Power Plan that affects power plant emissions nationwide.
Meanwhile, the bill would authorize the EPA to push forward with implementation of final regulations on the 2015 coal ash rule (RIN:2050-AE81).
State Revolving Funds
The House legislation would boost the drinking water state revolving fund by $207 million, $50 million above the White House request, the committee said. Those funds help finance repairs, upgrades and construction of new drinking water infrastructure.
Meanwhile, the legislation would cut allocations to the clean water state revolving fund by nearly $400 million, which builds out sewer and other public works projects.
Senate lawmakers lashed out at the Obama administration for requesting a clean water state revolving fund decrease (77 DEN A-21, 4/21/16).
The Senate environment and interior counterpart bill has not yet been introduced.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=90349368&vname=dennotallissues&fn=90349368&jd=90349368

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Some Programs Would Grow Even as House GOP Seeks EPA Cuts

May 25, 2016 | E&E Daily

By Sean Reilly

Two U.S. EPA grant programs would double in size next year even as the agency's overall budget would shrink under the fiscal 2017 spending bill unveiled yesterday by House Republican appropriators.
Under the bill, scheduled for a markup this morning by the House Interior, Environment and Related Agencies Appropriations Subcommittee, the amount of money set aside for Diesel Emissions Reduction Act (DERA) grants would soar from $50 million this year to $100 million in 2017. Funding for "targeted airshed" grants would increase from $20 million to $40 million.
The DERA program doles out money to replace or retool older, more heavily polluting diesel engines used in buses, locomotives and other equipment with newer, cleaner models. The amount proposed in the House bill would be 10 times the $10 million sought by the Obama administration for the program next year, although the White House also wants to create a climate infrastructure fund to replace and retrofit diesel equipment that could supply up to $300 million in mandatory DERA spending in 2017.
The existing program, created by the Energy Policy Act of 2005, is up for reauthorization this year. Last week, the Senate Environment and Public Works Committee approved S. 2816, sponsored by Sen. Tom Carper (D-Del.), which would keep DERA on the books through 2021; a similar provision is also part of S. 2012, the Senate-passed energy package. The House has so far not approved a reauthorization measure.
This year, the $20 million in targeted airshed grants is aimed at helping state, local and tribal regulators improve air quality in what EPA determines are the nation's five most polluted areas for ozone and soot, according to an agency grant application announcement released last month.
For next year, the $40 million in proposed spending would be governed by "terms and conditions" to be spelled out in a bill report that will be released shortly before the full Appropriations Committee takes up the House spending measure. A date for that markup has not yet been scheduled.
While the two grant programs constitute a tiny fraction of total EPA spending, the generous increases proposed in the House bill contrast with the legislation's treatment of the agency's overall budget. For 2017, EPA would receive $7.98 billion under the measure, or about a 2 percent cut from this year's level.
http://www.eenews.net/eedaily/2016/05/25/stories/1060037831

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House Rules Committee Votes to Expand Energy Bill

May 25, 2016 | BNA Daily Environment Report

By Ari Natter

The House Rules Committee voted May 24 to add drought legislation and a slew of other bills opposed by Democrats and the Obama administration to broad House-passed energy legislation that is headed to conference with the Senate.
The 806-page amendment to S. 2012, incorporated as part of a rule approved by the committee by voice vote, includes the text of the House-passed energy bill (H.R. 8) and portions of more than three dozen bills.
In addition to the California drought legislation (H.R. 2898), which address drought in the West through changes in federal water management and planning for more water storage, the amendment includes legislation (H.R. 1806) that would slash Energy Department research funds for clean energy while increasing money for nuclear energy and fossil fuel research. It also includes a bill (H.R. 1937) that would streamline the permitting process for mines, all of which either faced a veto threat or opposition from the White House (100 DEN A-6, 5/24/16).
The full House is expected to vote on the measure, which includes procedural language setting up a conference with the Senate to work out the differences between the two chambers' bills, as soon as May 25.
The underlying House energy bill, which passed by a vote of 249-174 in December amidst a veto threat and opposition from Democrats, would expedite the DOE's consideration of licenses to export liquefied natural gas, increase security of the nation's electric grid and speed up the review time for federal permitting of natural gas pipelines.

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Activist Groups Urge House to Reject Expanded Energy Bill

May 24, 2016 | BNA Daily Environment Report

By Ari Natter

The Sierra Club, Friends of the Earth and 30 other environmental groups are urging lawmakers to reject an expanded version of House energy legislation being considered by the House Rules Committee.
The 806-page amendment to S. 2012 incorporates the text of House-passed energy legislation (H.R. 8) and portions of more than three-dozen bills including California drought legislation (H.R. 2898) opposed by Democrats and those that would slash Energy Department research funds for clean energy, while increasing money for nuclear energy and fossil fuel research as well as a bill that would streamline the permitting process for mines.
“With these additions this bill has become more controversial and more harmful to the environment,” said the letter. “The 800-plus pages of legislation are packed with ideological proposals.”
http://news.bna.com/deln/lpages/lpages.adp?pg=breaking_news&bn_product=deln#urn:bna:a0j4y1y3e9

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Challengers Seek to Delay Suit Over Carbon Rule for New Plants

May 24, 2016 | PoliticoPro - Whiteboard

By Alex Guillen

The states and groups challenging EPA's carbon rule for new power plants have asked the court to push back briefing, a delay that could add several months to the proceedings.
The challengers argue their case should be combined with likely lawsuits over EPA's rejection of petitions asking it to reconsider parts of the rule. Folding those potential lawsuits, which are due by early July, into the main suit “will serve the interest of judicial economy by allowing the parties to brief and argue at one time the merits of all issues," they wrote in a brief filed today.
Though the lawsuits over the Clean Power Plan were put on a fast track, the suit over the new plant rule was moving at a more typical pace, with briefing set to begin on July 15. Briefing was to wrap up Nov. 14, with arguments coming within one to two months and a ruling sometime in 2017.
The challengers tell the D.C. Circuit Court of Appeals that, if their delay request is approved, by Aug. 4 they would propose a uniform delay of the briefing schedule, but they say there would be no other major changes aside from the delay and slightly longer word limits. That would allow them to consult any new groups challenging the petition rejections.
EPA opposes delaying the briefing schedule, according to the challengers.
https://www.politicopro.com/energy/whiteboard#

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Foes of New Source Rule Plot Additional Line of Attack

May 24, 2016 | E&E News PM

By Robin Bravender

Groups challenging U.S. EPA's greenhouse gas rules for new power plants said today that they are planning to attack on another legal front.
Several of the groups already suing the agency over those regulations are also planning to challenge EPA's refusal to reconsider the rules administratively. Earlier this month, EPA denied five petitions asking the agency to take another look at its rules in light of complaints. The agency said it would wait to decide how to handle a sixth petition that raises concerns with the rule's treatment of biomass emissions (E&ENews PM, May 2).
Three of those five rejected petitions were filed by parties already suing EPA in the U.S. Court of Appeals for the District of Columbia Circuit -- Wisconsin, the Energy & Environmental Legal Institute and the Utility Air Regulatory Group. "Those petitioners will file petitions for review challenging the reconsideration denial, and it is possible that other entities (which may or may not be parties to this case) will file petitions for review as well," lawyers representing EPA's challengers told the appeals court today.
Parties have until July 5 to challenge the reconsideration denials in the D.C. Circuit.
Opening briefs in the lawsuit challenging the rule are now due on July 15, and petitioners in the case asked the appeals court to push that deadline back. A suspension, they said, would allow time for challenges to the reconsideration denials be filed with the court and to be consolidated with the pending lawsuit. They proposed to suggest a new briefing schedule to the court by Aug. 4.
The delay would "promote judicial economy," the lawyers said, and won't cause harm to EPA or its supporters in the case. EPA, however, opposes their plan, the agency's challengers told the judges.
Click here to read the motion filed today.
http://www.eenews.net/eenewspm/2016/05/24/stories/1060037799

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Cantwell Underwhelmed by Revised House Bill

May 25, 2016 | E&E Daily

By Geof Koss

A key Senate Democrat is expressing a decidedly cool view of the House's revised energy reform bill, which lawmakers are likely to vote on this week ahead of a conference committee to merge versions from each chamber.
Sen. Maria Cantwell (D-Wash.), ranking member on the Energy and Natural Resources Committee, said yesterday she was concerned about House leaders adding a number of controversial bills to their energy reform package, H.R. 8.
"I wish they could do something besides legislation that has been already circled for veto pen action by the president," Cantwell told E&E Daily yesterday. "I don't know who wants to discuss those."
The revised House package, cleared for floor debate by the Rules Committee yesterday, includes provisions addressing wildfire, critical minerals, the California drought, the America COMPETES Act and a sportmen's package -- all of which the White House has threatened to veto (E&E Daily, May 23).
The administration had also vowed to veto the earlier version of H.R. 8 should it reach the president's desk. Cantwell called the developments "not a good way to start business."
She asked, "How does that help us get us energy policy that the House and Senate can agree on in bipartisan fashion? I'm pretty sure most of those things came out pretty partisan over there, whereas our's came out bipartisan, so we did the work of working together."
The House is expected to pass the new package, cobbled together from nearly three-dozen House measures, today, clearing the way for Speaker Paul Ryan (R-Wis.) to name conferees to negotiate with senators.
The chamber will consider the measure under a closed rule with no amendments. Rules Committee Republicans yesterday rejected a Democratic proposal for an open amendment process.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said she was not surprised by the House's additions, which were meant to match corresponding provisions in the much broader Senate bill, S. 2012.
Murkowski downplayed the multiple veto threats pending against the revised House bill. "They're going to veto the way that the House constructed them," she said of the White House, noting that the Senate's critical minerals bill and sportsmen's package did not encounter strong White House opposition.
"We ran similar initiatives, didn't see a veto threat," she said. "I think our job is how we marry these up in a constructive way."
Once the House names conferees, Murkowski said the Senate would have to vote to go to conference. She said 60 votes would be necessary to overcome opposition.
The chairwoman said she was already talking to senators about supporting the move to conference, noting that the Senate's bill contains contributions from many members from both parties.
Murkowski argues that a vote to go to conference is an opportunity to improve the final product. "I'd say give this a fair shot," she said.
The Alaskan Republican, who huddled with Majority Leader Mitch McConnell (R-Ky.) in his office before votes yesterday afternoon, said the timing of a Senate vote to go to conference was not yet clear.
The chamber is expected to take up the fiscal 2017 defense authorization bill today, a debate that may stretch out past next week's Memorial Day recess. To detour for a vote on going to conference with the House on energy would require consent from all 100 senators, Murkowski noted.
Murkowski acknowledged that the conference would be a tough slog but said she expected the Senate to rise to the occasion of the first formal energy legislation conference since 2005.
"Sometimes it's hard and it takes a long time but that's the way it is when you're dealing with issues that are not necessarily black and white in terms of where people are coming from," she said.
http://www.eenews.net/eedaily/2016/05/25/stories/1060037828

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House Begins Consideration of Energy, Water Spending Bill

May 25, 2016 | BNA Daily Environment Report

By Ari Natter

The House began consideration of a $37.4 billion energy and water spending bill that would block the Clean Water Rule among other policy riders May 24 despite a looming veto threat by the Obama administration.
The bill (H.R. 5055), which would provide nearly $30 billion for the Energy Department, is being considered under a modified open rule, which allows members to offer germane amendments on the floor.
The legislation, which would also provide $6 billion for the Army Corps of Engineers and $1.1 billion for the Department of Interior in fiscal 2017, drew a White House veto threat May 23 on grounds it would underfund energy research and development programs and contains policy provisions that the Obama administration opposes (100 DEN A-3, 5/24/16).
Bill Would Block Clean Water Rule
In addition to prohibiting funds for being used for implementation of the Clean Water Rule (RIN:2040-AF30), which seeks to clarify which tributaries and wetlands are subject to Clean Water Act requirements, the bill also prohibits any changes to the definition of “fill material” and “discharge of fill material” for the purposes of the Clean Water Act, a move supported by organizations representing mining companies such as Peabody Energy Corp. and Alpha Natural Resources Inc. Mining groups fear a revised definition could force mountaintop removal mining to be permitted under the Clean Water Act's Section 402, which governs discharge of pollutants, rather than the act's less stringent Section 404, which governs “fill material.”
The bill also includes language that would block components of the National Oceans Policy and prohibit the Energy Department and Army Corps from participating in marine and coastal planning efforts that would improve stewardship of the nation's oceans, coasts and Great Lakes, the administration said in its Statement of Administration Policy.
Within the DOE, the underlying legislation would appropriate $1.8 billion for the Office of Energy Efficiency and Renewable Energy, more than $1 billion for nuclear energy, $645 million for fossil energy research and development programs, and nearly $306 million for the Advanced Research Projects Agency–Energy, according to a committee bill summary.
The legislation also would provide $150 million to the Department of Energy and $20 million for the Nuclear Regulatory Commission to continue work on the Yucca Mountain nuclear waste repository opposed by the Obama administration.
The Senate passed its $37.5 billion version of the bill on a 90-8 vote May 12 (93 DEN A-2, 5/13/16).

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=90349371&vname=dennotallissues&fn=90349371&jd=90349371

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Partisan Amendments Surface to Energy and Water Bill

May 24, 2016 | E&E News PM

By George Cahlink

Amendments to remove policy riders and add limitations to administration dealings with Iran will emerge as the House begins work on its $37.4 billion fiscal 2017 energy and water spending bill later today.
The measure, H.R. 5055, will hit the floor this evening, but House leaders are not holding votes until tomorrow, and final passage might not come until Thursday.
"There are a number of poison pill amendments in this bill we don't like," said House Minority Whip Steny Hoyer (D-Md.), who suggested Democrats would try to strip them out. The open rule process allows for any lawmaker to offer germane amendments.
Democrats could seek to block GOP riders that would prevent the administration from carrying out its Clean Water Rule and from changing the definition of a fill material, a step that could restrict certain mining.
Other amendments could target six separate provisions related to the California drought that Democrats say do not adequately take into account environmental concerns.
Rep. Sam Farr (D-Calif.) has already filed an amendment to block a GOP bid to deny the administration funding for enforcing its new ocean policy. In past years, the measure has typically fallen out during bicameral talks over the spending bill.
Republican Rep. Brian Babin of Texas has filed multiple amendments to restrict federal agencies from using nuclear nonproliferation funds to forge new contracts or agreements with Iran. One provision would, in effect, prevent the United States from buying heavy water from Iran, a material used in nuclear reactors.
The broader goal of the amendment is to take aim at the recent nuclear deal with that country. GOP lawmakers have been highly critical of the accord, while the White House has signaled it would veto any bill that seeks to hamstring the hard-won agreement.
Democrats are not expected to propose new funding to help Flint, Mich., respond to its water crisis amid concerns the proposal might not be germane.
A House aide suggested a Flint funding amendment could emerge during debate on the Interior Department and U.S. EPA spending bill or when the House takes up its Water Resources Development Act.
Rep. Dan Kildee (D-Mich.) instead sought this afternoon to force a vote on his nearly $800 million emergency aid package for Flint, H.R. 4479. The House defeated his bid in a party-line vote, 174-233.
"Congress needs to take action to ensure safe drinking water and provide the critical resources necessary so that the city can begin to recover from this terrible man-made crisis," said Kildee, who represents Flint.
Hoyer also said to expect Democrats to offer an amendment related to lesbian, gay, bisexual and transgender rights on the energy and water funding bill. Last week, a Democratic proposal to provide protections for federal contractors nearly derailed a House military spending bill.
http://www.eenews.net/eenewspm/2016/05/24/stories/1060037805

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Tuesday: Energy, Labor Rule

May 24, 2016 | The Hill - Floor Action

By Jordain Carney

The House will debate a package of energy bills Tuesday, including starting discussions on its energy and water appropriations legislation. House lawmakers are scheduled to take up a bill to reform the Toxic Substance Control Act after decades of complaints that it is ineffective. The legislation would also allow the Environmental Protection Agency new oversight for thousands of potentially harmful chemicals. House Democratic leaders signaled their support for the legislation Monday, smoothing its path to final passage. The House is also expected to start debate on an energy and water appropriations bill Tuesday and take a postponed vote on a separate Intelligence Authorization Act. Votes in the House are expected between 2:15 p.m. to 3:15 p.m. and 5:30 p.m. to 6:30 p.m. Meanwhile, the Senate is expected to take up a resolution repealing a Labor Department rule on retirement savings. The resolution passed the House earlier this year, despite staunch opposition from Democrats and a veto threat from the White House. Votes in the Senate are expected but currently not scheduled. Senators will also recess from 12:30 p.m. to 2:15 p.m. for weekly policy lunches.
http://thehill.com/blogs/floor-action/scheduling/281016-tuesday-energy-labor-rule

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Chemical Security News

EPA Defends Facility Safety Rulemaking Process From Lawmakers' Attacks

May 24, 2016 | Inside EPA

By Dave Reynolds

EPA is defending from Republican lawmakers' attacks its process for developing a proposed overhaul of its facility safety program, rejecting GOP requests to delay the rulemaking in order to allow more time for critics to weigh in on the proposal and downplaying claims that the policy will impose unfunded mandates on emergency responders.
In May 18 letters to lawmakers, agency waste chief Mathy Stanislaus says the agency conducted extensive public outreach on the Feb. 25 proposed update to the Clean Air Act Risk Management Plan (RMP) safety program. He says that the two-plus years of EPA work on the proposal means there is no need to grant the lawmakers' request to extend the now-elapsed May 13 deadline for states, industry groups and others to comment on it.
Stanislaus says EPA's public outreach went further than necessary, noting agency policy only requires consultation with states and municipalities on rules that impose greater costs than EPA's proposal will create.
“EPA's policy for implementing Executive Order 13132 [on] formal Federalism consultation is triggered only
if a rule is projected to reach $25 million in state and local implementation costs, nationally, in any given year, or if current or future state or local law/regulation is preempted,” he writes. “While neither of these conditions was determined to exist for the RMP proposal, the EPA actively sought input from state and local governments.”
Stanislaus sent identical letters to House Energy & Commerce Committee Chairman Fred Upton (R-MI), as well as to Senate Environment & Public Works Committee Chairman James Inhofe (R-OK) and House Small Business Committee Chairman Steve Chabot (R-OH).
The RMP revisions are part of a broad federal effort to implement President Obama's Aug. 1, 2013, Executive Order (EO) 13650 on improving the safety and security of the nation's industrial facilities.
Obama issued the order in response to the April 2013 explosion at a fertilizer facility in West, TX, that killed 15 people, including first responders, and wounded 200 others. Federal investigators recently ruled the fire that sparked the explosion was intentionally set and offered a reward for information in the case. Critics of EPA's proposal have said the arson designation undermines the basis for the rulemaking, but doubt EPA will soften it.
EPA officials have said they are seeking to finalize the rule by the end of the year, and have rebuffed industry calls to extend the deadline for comment, arguing they have allowed numerous opportunities for public input.
Early this month, House and Senate Republicans, in separate letters, urged EPA to extend the May 13 comment deadline. The lawmakers, with support from Senate Democrat Joe Manchin (WV), argued that EPA failed to adequately consult with small entities, including facilities and local governments, as required by the Regulatory Flexibility Act, and appears to be advancing the rule on an accelerated schedule.
Critics' Concerns
The congressmen also argued that EPA had failed to adequately consult with the Occupational Safety and Health Administration's overhaul of its Process Safety Management program, which could result in duplicative or contradictory facility accident prevention rules.
EPA also has received push back from the North Carolina State Emergency Response Commission that argued in comments on the rule that a proposed increase in mandatory emergency response exercises "appears to impose an unfunded mandate" on local first responders and emergency management officials.
In the May 18 letters, posted to the RMP rulemaking docket May 23, Stanislaus rejects the request for more time and argues that the agency's public outreach in support of the rulemaking went beyond what is necessary. Prior to the proposal, EPA sought comment through public meetings and in a July 2014 request for information, he says.
Additionally, Stanislaus says interested parties had more than the 60-comment period to provide input, given that the agency posted a pre-publication version of the rule on its web site 18 days before the comment period officially opened.
“Given the significant outreach efforts, we believe that EPA's RMP proposal reflects substantial input
from state and local governments, as well as stakeholders, on the elements of the proposed rule to improve chemical process safety,” Stanislaus says in denying the requests for an extension.
Currently, the RMP program requires companies to craft a plan to submit to EPA that outlines how the facility will reduce risks from releases.
EPA's proposed revisions would strengthen hazard analysis and facility inspections, and also require certain facilities to conduct exercises with local authorities to ensure they are prepared to respond to an accident. The proposal includes language requiring companies to be prepared to respond to emergencies if local emergency responders are unwilling.
http://insideepa.com/daily-news/epa-defends-facility-safety-rulemaking-process-lawmakers-attacks

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Transportation News

After Derailment, NTSB Blames the Engineer, Not Amtrak

May 25, 2016 | Roll Call

By Joshua Gotbaum

This week I learned that railroad barons still have power: they have successfully resisted safety measures that have for decades been standard for airlines and other transportation. I also learned that, by focusing on the wrong questions, federal safety agencies help keep railroads unsafe.
After a year of careful study, the National Transportation Safety Board announced that the likely cause of the Amtrak 188 derailment in May 2015 that killed eight people and injured over 100 more was the engineer. The Board noted repeatedly that, had Amtrak turned on a safety system it had already installed, there would have been no accident at all. Nonetheless, the NTSB just couldn’t bring itself to blame Amtrak – even though the railroad has itself already admitted legal liability and agreed to pay compensation for damages. The NTSB spent most of its meeting talking about the engineer, Brandon Bostian, saying that he'd lost track of where he was and was speeding up when he should have been slowing down. They noted that Bostian hadn’t been drinking or talking on his cell, hadn’t been sleep deprived, hadn’t taken drugs and had a record of good behavior. They concluded that he was likely distracted by listening to radio reports about another train incident nearby. Faced with the fact that he’d made a mistake, but hadn’t done anything obviously wrong, they nonetheless continued to focus on him. They ended up recommending new training courses for engineers in multitasking (even though there’s plenty of evidence that such courses are ineffective).
If lack of attention can be a “cause,” why can’t lack of safety systems? The NTSB and staff repeatedly noted that Amtrak hadn’t turned on its positive train control (PTC) safety system — which was already set up, but not required to be turned on until the end of the year — and that, had Amtrak done so, there wouldn’t have been an accident at all.
They also noted that NTSB had recommended adoption of PTC safety systems for over 45 years. Nonetheless, NTSB shied away from saying that the lack of proper safety systems caused the accident. When one of the board members recommended listing both lack of a functioning PTC and engineer distraction as primary causes, the staff and the three other board members opposed the idea. The staff said, in effect, “Amtrak is doing more than other carriers, so we don’t want to criticize them”— even though it wouldn’t have been hard to have turned on the system immediately, rather than waiting until it was required at year-end.
[ Shaken by Amtrak Derailment, Carper Plans Hospital Visit ]
It’s worth noting that NTSB has traditionally focused on human error rather than safety systems. For example, when the plane’s electrical system failed and members of the Oklahoma State University basketball team died in a 2001 crash, the NTSB said the cause was pilot error, that he could still have flown the plane using other instruments. Fortunately, the Federal Aviation Administration recognizes the shortcomings of human pilots and requires multiple backup safety systems. Unfortunately, the Federal Railroad Administration does not; it repeatedly failed to require PTC. Dozens have died in fatal rail accidents as a result, 37 since 2008 on Amtrak alone.
Since the purpose of the NTSB is to improve safety, one must wonder whether downplaying the failures of organizations to implement safe systems and focusing overwhelmingly on the poor engineer isn’t a missed safety opportunity. At a minimum, it was a missed educational opportunity, since virtually all the news reports headlined the engineer and buried the lack of safety systems in the text, if they mentioned it at all.
Former NTSB member Kathryn (Kitty) Higgins agrees. She said, “We put a man on the moon in far less time than it has taken to make progress on PTC. … It is outrageous and inexcusable that this technology hasn't been and won't be installed by the original congressional deadline. At a time when the auto industry is moving ahead with smart cars, driverless cars and other advanced technology to advance safety, it is ridiculous that we don't have smart trains and rail systems.”
NTSB is an exceedingly knowledgeable and professional agency. Both the board and staff clearly care about safety and safety systems, but after 45 years maybe they’d be more successful if they started recognizing that the lack of such systems kills, too.
http://www.rollcall.com/news/opinion/derailment-ntsb-blames-engineer-not-amtrak

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Environment News

Water Rule Challenge Stayed in North Dakota District Court

May 24, 2016 | BNA Daily Environment Report

By Amena H. Saiyid

A federal judge in North Dakota today stayed all proceedings in a lawsuit over the Clean Water Rule until the U.S. Circuit Court of Appeals for the Sixth Circuit finishes its review of challenges to the rule.
In an order, Judge Ralph Erickson said the stay would prevent the district court from duplicating a review of the rule.
The Sixth Circuit is charged with reviewing 22 petitions challenging the water rule (RIN: 2040-AF30), which the Environmental Protection Agency and the U.S. Army Corps of Engineers jointly promulgated almost a year ago to clarify the regulatory reach of the Clean Water Act over waters and wetlands.
While staying the proceedings, Erickson denied motions sought by the EPA and the corps to dismiss the lawsuit completely, and to lift the injunction on the rule that the district court had issued last August.
http://news.bna.com/deln/lpages/lpages.adp?pg=breaking_news&bn_product=deln#urn:bna:a0j4y1y3e9

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EPA Staff, Academics Weigh Role Of Ozone 'Exposure' In NAAQS Debate

May 24, 2016 | Inside EPA

By Stuart Parker

As EPA and states move to implement the agency's new, tougher ozone national ambient air quality standard (NAAQS), agency staff and air quality researchers are debating how to differentiate personal "exposure" to ozone which could be many times less than levels of the pollutant in ambient air would otherwise suggest.
At a recent conference hosted by the Electric Power Research Institute (EPRI) in Washington, D.C., researcher Helen Suh of Northeastern University, an expert in the health effects of air pollution, argued that there is still a strong correlation between ambient levels of ozone and the personal exposures that actually trigger illness, at least in most areas in summer.
However, it is equally clear that personal exposures vary widely according to individual circumstances, making it difficult to make sweeping assumptions about ozone's real-world health effects, Suh said.
EPA set its ozone NAAQS Oct. 1 at 70 parts per billion (ppb) measured over eight hours, using a "form" that averages the fourth-highest ozone readings in a given area over three years. This is tougher than the prior standard, set in 2008, of 75 ppb that uses the same averaging time and form.
During the standard-setting process, opponents of a tougher NAAQS pointed to differences between ambient levels and actual exposures to argue against making the standard tougher, saying such a move would not result in discernible health benefits.
For example, Michael Honeycutt, director of toxicology with the Texas Commission On Environmental Quality, the state's air regulator, made this case in public comments on ozone NAAQS.
Speaking at the May 11 EPRI event, Suh said, "it is clear that personal exposures are much, much lower than ambient concentrations," yet NAAQS are based on the health risks of prolonged exposure to ambient levels.
Suh said ambient ozone is "a much poorer proxy" for personal exposure than ambient levels of other pollutants, such as fine particulate matter.
Ozone Exposures
Personal ozone exposures depend on a range of factors such as time spent outdoors and type of activity outdoors, where vigorous exercise or heavy work results in higher respired amounts of ozone and hence higher risk of adverse health effects.
In addition, Suh noted, indoor exposures differ according to ventilation of buildings, where buildings with doors and windows open experience ozone levels much closer to elevated ambient levels than those with windows closed and air conditioning running.
This ventilation factor can create regional differences in exposure, where some inhabitants of some regions that experience high summertime ozone generally stay indoors in air conditioning, hence avoiding high ozone exposures, while those living in other climates may receive higher ozone doses with the windows open.
Other factors include time of day, with high ozone levels typically associated with hot afternoons -- however, high wintertime ozone levels, such as those seen in high-altitude Western areas, may result in different exposure patterns, Suh noted.
Suh said her comments echoed similar observations by Lisa Baxter, an EPA research scientist.
NAAQS Attainment
Meanwhile, EPA Region 1 officials met with Connecticut meteorologists and air officials April 29 in Hartford, CT, to discuss how to attain the 70 ppb ozone NAAQS.
At the meeting, which included Region 1 Administrator H. Curtis Spalding and Rob Klee, commissioner of the state's Department of Energy and Environmental Protection, officials discussed the state's ongoing ozone problem. Region 1 represents several Northeast states.
Even as ozone levels have fallen in other parts of the East Coast in recent years, Connecticut and metropolitan New York City appear to have more intractable ozone problems, and will struggle to meet the 70 ppb standard, Eastern air regulators have said.
Local weather patterns and transport of pollution from other states are factors in this problem, sources say, although others, such as the Midwest Ozone Group of Midwestern power utilities, say locally-sourced ozone is a significant factor in Connecticut.
http://insideepa.com/daily-news/epa-staff-academics-weigh-role-ozone-exposure-naaqs-debate

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