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ACC AM 6/14

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Chemical Management News

(ACC Mentioned) Proposition 65 at 30—Time for a Different Approach
Jun 13, 2016 | Fox & Hounds
By David Fischer

This year is the 30th anniversary of California’s chemical warning law, Proposition 65. To mark the occasion, I published an article in the Journal of Business & Technology Law outlining the law’s biggest flaws—the lack of adequate information provided to consumers through Proposition 65 warnings and the abuse of the law by bounty hunters.
(ACC Mentioned) As Chemical Makers Balk at New Plants, Earnings Stand to Rise
Jun 14, 2016 | Bloomberg Businessweek
By Jack Kaskey

Royal Dutch Shell NA’s decision to build a major chemical plant in Pennsylvania boils down to a bet that North American shale gas in the next decade will remain cheaper than oil, the main petrochemical feedstock used in other regions. It’s a risk no one else has dared to take.
(ACC Mentioned) Report Cites Large Inventory of Carcinogens in Peoples’ Bodies
Jun 14, 2016 | Fair Warning
By Brian Joseph

As many as 420 known or suspected carcinogens have been found in human populations through monitoring studies conducted across the globe, according to a first-of-its-kind literature review released today by the Environmental Working Group.
TSCA Changes May Alter Pending Chemical Rules for Articles
Jun 14, 2016 | BNA Daily Environment Report
By Pat Rizzuto

Congress' changes to the Toxic Substances Control Act could alter proposed Environmental Protection Agency rules affecting chemicals in manufactured goods before they're issued as final, attorneys said June 13.
New Jersey's Two U.S. Senators are Touting a Bipartisan Chemical Safety Reform Bill and the Vital Role that a Late Colleague Played in Developing the Measure
Jun 13, 2016 | AP (In the Daily Journal)

New Jersey's two U.S. senators are touting a bipartisan chemical safety reform bill and the vital role that a late colleague played in developing the measure.
Chemical Safety Reform Law Named for Late N.J. Senator Lauded at Great Falls
Jun 13, 2016 | NJ.com
By Justin Zaremba

Both of New Jersey's U.S. senators were in Paterson on Monday afternoon taking a victory lap over the recent passage of a chemical safety reform bill and praising the late U.S. senator they credit with kickstarting reform efforts.
Editorial: New Chemical Regulation Law is Long Overdue
Jun 14, 2016 | Herald-Dispatch

It's really a shame that agreement by Republicans and Democrats in Congress on a piece of legislation is worthy of a special mention.
Hundreds of Cancer-Causing Chemicals in People: Report
Jun 14, 2016 | BNA Daily Environment Report
By Pat Rizzuto

Hundreds of cancer-causing commercial chemicals have been measured in people, according to an Environmental Working Group report slated for release June 14.
One Big List of All the Cancer-Causing Chemicals Inside Us
Jun 14, 2016 | Mother Jones
By Will Greenberg

An estimated 1.7 million people will be diagnosed with cancer in 2016. While some of this is rooted in sheer genetics, many of these cases may be sparked by substances in the air, soil, food, and materials around us.
Dupont on Trial over C8s Tied to Cancers. But is the Replacement C6 Safer?
Jun 13, 2016 | Environmental Leader
By Ken Silverstein

Right now, Dupont is involved in a civil trial over a chemical it had used to manufacture stain-resistant teflon, called C8. It’s a test case — one of six — that will determine how the remaining 3,500 are dealt with.

Energy News

(ACC Blog) Spray Foam Gives Energy Efficient Boost to Award Winning Home Designs
Jun 13, 2016 | American Chemistry Council
By Justin Koscher

Homebuilders consider many factors when designing new homes and one of the most important is choosing energy efficient materials to control heating and cooling use in the home. https://blog.americanchemistry.com/2016/06/spray-foam-gives-energy-efficient-boost-to-award-winning-home-designs/
(ACC Mentioned) Energizing the Economy in Appalachian Basin
Jun 13, 2016 | Trib Live
By David Spigelmyer, Shaw Bennett, and Corkey Demarco

Experts agree: The United States has emerged as the world's leading oil and natural gas producer while reducing its carbon emissions more than any other nation.
House Republicans Take Aim at Regulations
Jun 14, 2016 | Poitico
By Bernie Becker

House Republicans are taking aim Tuesday at President Barack Obama’s regulatory regime, arguing that the White House has impeded the economic recovery by flooding businesses with new rules.
House GOP Unveiling Agenda to Boost Oil, Gas, Nuclear
Jun 14, 2016 | E&E Daily
By Hannah Hess

House Republicans will roll out a regulatory approach today that "enhances America's energy abundance," as part of a broader legislative agenda for the GOP to run on this fall and pursue under a Donald Trump White House.
Chamber Pushes Senate on Energy Bill
Jun 13, 2016 | The Hill - E2 Wire
By Devin Henry

The U.S. Chamber of Commerce is encouraging senators to join a conference committee with the House on an energy overhaul bill.
U.S. Chamber Makes Unusual Push for Conference Committee
Jun 13, 2016 | E&E News PM
By Geof Koss

The U.S. Chamber of Commerce today told senators it would "key vote" the upcoming roll call on going to conference with the House on energy reform legislation.
Energy Bill Talks to Feature Fight Over Permitting Reform
Jun 14, 2016 | E&E Daily
By Hannah Northey

When Rep. Jerry McNerney pushed House Republicans last year to advance hydropower reforms within the chamber's energy bill, the California Democrat didn't get everything he wanted.
EPA: Groups Can't Challenge Toxics Determination
Jun 14, 2016 | BNA Daily Environment Report
By Patrick Ambrosio

A federal appeals court should dismiss a lawsuit brought by environmental organizations because the petitioners have not brought a direct, timely challenge to an Environmental Protection Agency finding that it has met its obligations to limit hazardous air pollutants from various industrial sectors (Sierra Club v. EPA, D.C. Cir., No. 15-1246, brief filed 6/13/16).
High Court Won't Revisit EPA's Mercury Power Plant Rule
Jun 14, 2016 | BNA Daily Environment Report
By Patrick Ambrosio

The U.S. Supreme Court will not review a federal appeals court decision that left the Environmental Protection Agency's Mercury and Air Toxics Standards in place while the agency worked to address a legal flaw in the rulemaking process (Michigan v. EPA, U.S., No. 15-1152, cert. denied 6/13/16).
Supreme Court Rejects Case Challenging Key White House Air Pollution Regulation
Jun 13, 2016 | The Washington Post
By Brady Dennis

The Supreme Court on Monday left intact a key Obama administration environmental regulation, refusing to take up an appeal from 20 states to block rules that limit the emissions of mercury and other harmful pollutants that are byproducts of burning coal.
Supreme Court Rejects New Challenge to Obama Air Pollution Rule
Jun 13, 2016 | The Hill - E2 Wire
By Timothy Cama

The Supreme Court on Monday declined to consider a third request from a group of states to overturn a sweeping Obama administration air pollution rule.
ESPS Critics Seek To Assure States That Decline To Craft Compliance Plans
Jun 13, 2016 | Inside EPA
By Abby Smith

Opponents of EPA’s landmark power plant greenhouse gas rule are moving to reassure states that choose to halt compliance planning following the high court stay of the regulation that they will face no penalty if the rule is ultimately upheld, pushing back against arguments from advocates that states that do not continue compliance planning during the period of the stay will be left behind.

Chemical Security News

(ACC Mentioned) EPA Sends Final Hazardous Waste Rule To OMB
Jun 13, 2016 | Inside EPA

EPA has sent to the White House for review its final hazardous waste generator improvements rule, which includes dozens of changes to current Resource Conservation and Recovery Act (RCRA) regulations intended to to improve the effectiveness of, and compliance with, the agency's hazardous waste generator program.

Transportation News

Democrats Mount New Crude Train Safety Push After Derailment
Jun 14, 2016 | BNA Daily Environment Report
By Ari Natter

Senate Democrats are renewing a push for oil train safety legislation after a fiery crude-by-rail derailment resulting in a spill in Oregon's pristine Columbia River Gorge, but analysts say the incident isn't likely to be enough to spur congressional action anytime soon.
Senate Passes Pipeline Safety Bill, Sends It to Obama
Jun 14, 2016 | BNA Daily Environment Report
By Ari Natter

Legislation that would give the Pipeline and Hazardous Materials Safety Administration emergency authority in the event of an oil spill or other accident is headed to President Barack Obama's desk for signature after the Senate voted to approve it by voice vote June 13.
Senate Sends Pipeline Safety Bill to Obama
Jun 13, 2016 | The Hill - E2 Wire
By Devin Henry -

The Senate on Monday unanimously passed a bill to reauthorize the federal pipeline safety oversight board, sending the measure to President Obama for his signature.
Senate Sends Pipeline Safety Bill to Obama
Jun 13, 2016 | PoliticoPro - Whiteboard
By Andrew Resteccia

The Senate approved pipeline safety legislation by unanimous consent today, sending the bill to President Barack Obama's desk.

Environment News

California's Cap-and-Trade Program Faces Daunting Hurdles to Avoid Collapse
Jun 14, 2016 | Los Angeles Times
By Chris Megerian and Ralph Vartabedian

The linchpin of California’s climate change agenda, a program known as cap and trade, has become mired in legal, financial and political troubles that threaten to derail the state’s plans to curb greenhouse gas emissions.

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) Proposition 65 at 30—Time for a Different Approach

Jun 13, 2016 | Fox & Hounds

By David Fischer

This year is the 30th anniversary of California’s chemical warning law, Proposition 65. To mark the occasion, I published an article in the Journal of Business & Technology Law outlining the law’s biggest flaws—the lack of adequate information provided to consumers through Proposition 65 warnings and the abuse of the law by bounty hunters. My article offers alternative approaches to Proposition 65.
Since its overwhelming passage in 1986, it’s become nearly impossible in California to avoid seeing Proposition 65 warnings. Hotels, restaurants, ballparks, parking garages, office buildings, amusement parks, and pools, along with thousands of consumer products, warn Californians (and many outside California) of possible exposure to carcinogens or reproductive toxins.
Part of the reason for this warning explosion is the sheer number of chemicals identified by California as carcinogens or reproductive toxins. The list has grown to more than 800 chemicals with no end in sight, and more chemicals beget more ill-informed warning labels that provide little useful information to consumers.
These warnings aren’t required if businesses can show that exposure to a listed chemical is below a so-called safe harbor level. But the state of California’s penchant for adding chemicals to its warning list has far surpassed its ability to establish safe harbor levels for every chemical. Thus, businesses often opt to over-warn by providing a warning even when consumers are exposed to little if any of a Prop 65-listed chemical.
Businesses also over-warn to protect themselves from bounty hunter lawsuits. As many of those who opposed Prop 65’s passage in 1986 foretold, the law has become a “bonanza for private lawyers.” Bounty hunters filing lawsuits against businesses can collect a portion of the civil penalties, on top of attorney fees. Winning a Prop 65 lawsuit is difficult, costly, and time consuming for businesses—unlike most environmental and health statutes, Prop 65 shifts the burden onto businesses to prove that an exposure to a listed chemical is below the safe harbor level. Not surprisingly, businesses generally opt to settle with bounty hunters.
There has been a long string of attempts to reform Prop 65, but the state has yet to fix these key problems. The latest reform proposal does little to improve the usefulness of these warnings for consumers.
Warnings will come with a pictogram “hazard” symbol and name at least one listed chemical, but businesses would be barred from providing consumers with factual information that puts warning in context for consumers—even information from federal agencies like the U.S. Food and Drug Administration. Consumers looking for more information will be referred to a state-run website that offers very little helpful context about health risks. This website has already launched, and you can read more about the problems with the website here.
There are undoubtedly other approaches that could serve to redress Prop 65’s warnings and its other flaws, which I’ve highlighted in my journal paper, available for download here. Until significant changes are made, bounty hunters continue to thrive, benefits remain elusive, and the costs on businesses, consumers, and taxpayers continue to mount.
http://www.foxandhoundsdaily.com/2016/06/proposition-65-30-time-different-approach/

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(ACC Mentioned) As Chemical Makers Balk at New Plants, Earnings Stand to Rise

Jun 14, 2016 | Bloomberg Businessweek

By Jack Kaskey

Royal Dutch Shell NA’s decision to build a major chemical plant in Pennsylvania boils down to a bet that North American shale gas in the next decade will remain cheaper than oil, the main petrochemical feedstock used in other regions. It’s a risk no one else has dared to take.
A barrel of Brent crude now costs about 20 times more than a million British thermal units of U.S., a ratio that has shrunk from 60 times in 2012. As the continent’s cost advantage erodes, producers from Braskem SA to Chevron Phillips Chemical Co. are reluctant to commit to fresh investments after they complete a wave of new plants in the next couple years.
The hesitancy leaves few major projects in the pipeline after 2020 even as demand is expected to rise for such products as ethylene and polyethylene, which are used in plastic bags and bottles.
That’s contributing to a potential supply shortfall at the start of the next decade since chemical plants take five to seven years to complete, said Hassan Ahmed, an analyst at Alembic Global Advisors. Prices should rise without more production, boosting earnings -- and potentially doubling stock prices -- at chemical makers such as Dow Chemical Co. and LyondellBasell Industries NV, he said in a note Monday.
“After this first wave comes, people are paranoid about further additions because of all the volatility in energy,” Ahmed said in an interview. “We could see major under-investment, and that will keep markets tight.”‘Not Comfortable’
Shell’s ethane cracker and polyethylene plants outside Pittsburgh would begin production after 2020, following a half dozen similar projects on the U.S. Gulf Coast starting up through 2018. Shell said the factories will be built by about 6,000 construction workers and will employ 600 people when completed.
The company, which didn’t release an estimate of its investment, may spend $3.5 billion on the project, Ahmed said. The U.S. chemical industry has announced $161 billion of investments since 2010, said Kevin Swift, chief economist at the American Chemistry Council. The new plants will produce more than local markets need, sending excess supply abroad.
Shell’s announcement last week won’t push Braskem SA to pull the trigger on a similar project in nearby West Virginia, CEO Fernando Musa said in an interview at the chemistry council’s annual meeting in Colorado Springs, Colorado. The plant, as well as a planned polypropylene factory in Texas, remains under consideration, he said.
Any decision requires the company to try to guess the future spread between oil and gas prices, Musa said. “Right now we are not comfortable on making that bet.”Shale Wager
Braskem already has taken a $5 billion wager on North American shale gas: It is starting up new ethylene and polyethylene plants in Mexico whose ethane feedstock price is linked to the benchmark at Mont Belvieu, Texas.
Chevron Phillips plans to start production next year at an ethylene and plastics complex outside Houston that will cost $6 billion. The company isn’t ready to commit to a planned second “megaproject,” Chief Executive Officer Pete Cella said in an interview at the industry conference in Colorado last week.
“The folks that are running light feeds like us have seen some compression in our margins,” Cella said. “That has to give people some reason to step back and think much harder about where supply and demand for all the energy constituents are going before you move forward on a major investment.”
BASF SE, the world’s largest chemical company, this month postponed a decision on whether to build a 1 billion-euro ($1.13 billion) plant in Texas that would convert methane to propylene, its biggest ever investment in a single facility, partly in response to volatile raw-material prices.‘Ticking Along’
North American profit margins for making ethylene and polyethylene plastics are still among the the best in the world, albeit off their peaks. The first wave of new North American plants may create some downward pressure on prices by increasing supply, but the excess will quickly be consumed by global demand that grows by the equivalent of three to five large ethylene plants every year, said Nova Chemicals CEO Todd Karran.
Not everyone is so bullish on basic chemicals. Charles Neivert, an analyst at Cowen & Co., on Monday downgraded LyondellBasell to market perform from outperform in part because he expects increased capacity and higher ethane prices to pressure margins.
Nova will decide next year whether to expand its ethylene plant in Corruna, Ontario, by 50 percent, he said.
“If you get into 2020 and you expand the lens beyond North America, you don’t see a whole lot of supply coming on,” Karran said in an interview. “But demand keeps ticking along.”
http://www.bloomberg.com/news/articles/2016-06-14/as-chemical-makers-balk-at-new-plants-earnings-stand-to-rise

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(ACC Mentioned) Report Cites Large Inventory of Carcinogens in Peoples’ Bodies

Jun 14, 2016 | Fair Warning

By Brian Joseph

As many as 420 known or suspected carcinogens have been found in human populations through monitoring studies conducted across the globe, according to a first-of-its-kind literature review released today by the Environmental Working Group.
“The array of carcinogens detected in humans is alarming,” says the report by Curt DellaValle, a senior scientist with EWG, a Washington, D.C.-based advocacy group. “It underscores how much work is needed to reduce and eliminate toxic chemicals, particularly carcinogens, from our daily lives.”
Many studies have confirmed the presence of a harmful chemical or group of chemicals in human blood or urine. But the new report suggests that people may harbor traces of many carcinogens at a given time.
DellaValle, who holds a PhD. in environmental health from Yale University, reports that people who were not at risk for on-the-job exposure still had many cancer-causing chemicals in their blood or urine, confirming that humans are exposed to a wide range of carcinogens in their everyday lives, from things like pesticides, flame retardants and consumer products.
“This isn’t a problem that we can necessarily just shop our way out of.” Cancer-causing chemicals are “coming from a variety of sources that we may not even be aware of,” DellaValle said in an interview. Reducing the risk is “going to take a combination of both individual efforts of changing your habits as well as regulators stepping in and strengthening our environmental regulations.”
The report notes that banning lead in gasoline and PCBs—chemicals once widely used as cooling fluids—has reduced levels of those substances in people. “It shows that effective government regulation can make a big impact,” DellaValle said.
The report says that some hazardous substances found in people are naturally-occurring. And it stresses that the mere presence of carcinogens does not necessarily mean a person is in danger of getting cancer. It’s “hard to take a concentration of a chemical that’s measured and assign” the chance of getting cancer, DellaValle said.
But the report concludes that levels of nine carcinogens, including benzene and arsenic, are high enough “to pose non-trivial cancer risks” for many people. According to DellaValle, that means that concentrations are high enough to exceed what the Environmental Protection Agency considers an acceptable risk—typically, a one in one million to one in 10,000 chance of getting cancer.
Noting that it had not had a chance to review the EWG report, the American Chemistry Council, which represents the nation’s leading chemical manufacturers, said in a statement that “Although the data are helpful to assess risk from environmental substances, biomonitoring data is limited in the information it provides.”
Such data, the council said, does not show where exposures came from or offer “a complete exposure assessment. Studies of absorption, distribution, metabolism and excretion are needed to convert biomonitoring data into more useful information that in turn must be evaluated with toxicological data before they can be used to predict potential health risks.”
The EWG report comes one week after Congress sent President Obama legislation to overhaul the 40-year-old Toxic Substances Control Act. The legislation requires the Environmental Protection Agency to begin testing some 64,000 chemicals that have been unregulated.
The pace of the testing, however, would be slow. Under the bill, which the president is expected to sign, the EPA would have to test only about 20 chemicals at a time, and it could spend as long as seven years on each one.
http://www.fairwarning.org/2016/06/carcinogens-inventory/

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TSCA Changes May Alter Pending Chemical Rules for Articles

Jun 14, 2016 | BNA Daily Environment Report

By Pat Rizzuto

Congress' changes to the Toxic Substances Control Act could alter proposed Environmental Protection Agency rules affecting chemicals in manufactured goods before they're issued as final, attorneys said June 13.
The EPA may need to conduct new analyses to support its proposed rules or the agency may need to re-propose them in light of changes the TSCA-reform bill would make to the criteria the agency should use when regulating manufactured goods, or “articles,” said Lynn Bergeson, managing partner of Bergeson & Campbell P.C.
Mark Duvall, an attorney with Beveridge & Diamond P.C., told Bloomberg BNA he too would interpret the articles provisions of the TSCA-reform bill as applying to the forthcoming final “significant new use rules” once the legislation is signed into law.
Bergeson and Duvall referred to changes the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576) made to the EPA's authorities over new chemicals and new uses of chemicals (Section 5 of TSCA).
The House and Senate approved H.R. 2576 on May 24 and June 7, respectively. The White House strongly supports the bill, which would overhaul TSCA for the first time since 1976, and President Obama is expected to sign it soon.
Domestic Manufacturers, Importers Affected
Proposed significant new use rules covering domestic manufacturers and importers of products that contain certain perfluorinated chemicals, toluene diisocyanates and flame retardants known as polybrominated diphenyl ethers are among the regulations the EPA may have to rethink, Bergeson said during a webinar her law firm hosted.
Manufacturers and importers of semiconductors, automobiles and furniture are among the companies that objected to EPA's proposal to cover articles in these regulations.
In an e-mailed statement, the EPA said it could not comment on how it would interpret H.R. 2576, because it has not yet been signed into law.
Richard Denison, lead senior scientist at the Environmental Defense Fund, said H.R. 2576 does not discuss whether its changes to Section 5 are to apply immediately or be phased in.
“It would partly depend on where [EPA is] in the process and what issues are being raised,” Denison said during the webinar.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=91872750&vname=dennotallissues&fn=91872750&jd=91872750

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New Jersey's Two U.S. Senators are Touting a Bipartisan Chemical Safety Reform Bill and the Vital Role that a Late Colleague Played in Developing the Measure

Jun 13, 2016 | AP (In the Daily Journal)

New Jersey's two U.S. senators are touting a bipartisan chemical safety reform bill and the vital role that a late colleague played in developing the measure.
Sens. Cory Booker and Bob Menendez held a news conference Monday in Paterson to promote the legislation named after a fellow New Jersey Democrat, the late Sen. Frank Lautenberg, who pushed for chemical reform before his death in 2013.
The measure would set new safety standards for asbestos and thousands of other chemicals that have gone unregulated for decades. The Senate unanimously passed the measure last week and it is now headed to President Obama's desk.
The White House has said it strongly supports the legislation, which would be the first overhaul of the Toxic Substances Control Act since it was approved in 1976.
http://www.dailyjournal.net/view/story/6e9fa3698c4b4faf9671908e6d2057dc/NJ--Chemical-Regulation

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Chemical Safety Reform Law Named for Late N.J. Senator Lauded at Great Falls

Jun 13, 2016 | NJ.com

By Justin Zaremba

Both of New Jersey's U.S. senators were in Paterson on Monday afternoon taking a victory lap over the recent passage of a chemical safety reform bill and praising the late U.S. senator they credit with kickstarting reform efforts.
Speaking at a press conference at the Great Falls National Historical Park, Sen. Cory Booker said the Frank R. Lautenberg Safety for the 21st Century Act finally "gives teeth to regulators who can now make sure that the chemicals in so many products are safe and are not leading toward cancers and other illnesses."
"I am proud of the long-overdue improvements I fought to include in this bill, including provisions that strengthen (Environmental Protection Agency's) ability to regulate toxic chemicals, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist," Booker said in a statement.
The legislation mandates all chemicals in commerce will be reviewed for safety where its predecessor — the Toxic Substances Control Act — provided a loophole, Sen. Robert Menendez said, limiting the scope of its regulation protecting the public from dangerous chemicals to the "least burdensome requirements," which incidentally barred the federal government from regulating asbestos.
"This bill will finally give EPA the authority to ban unsafe chemicals, and sets an aggressive, but attainable schedule for evaluating them," he said.
Lautenberg's advocacy work toward stronger chemical safety regulation, Booker said, arose from his father's death at a young age from cancer. Lautenberg was convinced his father's cancer resulted from his time in the silk mills in Paterson, he said.
The legislation requires the EPA test chemicals using "sound and credible science" and impose regulations if they are shown to pose a health risk.
The EPA would also set priorities for evaluating chemicals and would not first have to show they pose a potential risk. Manufacturers could ask the EPA to evaluate a particular chemical if they are willing to cover those costs.
Booker did, however, call the legislation "a compromise bill" that came together over months of negotiations and years of input from activists, environmentalists, public health advocates and industry experts.
Commenting on the 11 Tony's won by "Hamilton: An American Musical" on Sunday night, Menendez compared the late senator to the first Secretary of the Treasury, whose statue is featured in the national park.
"Hamilton was a visionary and so was Frank Lautenberg," Menendez said. "And we have a new visionary in Cory Booker who represents the transition from one generation to another."
The bill is now expected to go before President Barack Obama for his signature.
http://www.nj.com/passaic-county/index.ssf/2016/06/booker_menendez_honor_frank_lautenberg_at_ceremony.html

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Editorial: New Chemical Regulation Law is Long Overdue

Jun 14, 2016 | Herald-Dispatch

It's really a shame that agreement by Republicans and Democrats in Congress on a piece of legislation is worthy of a special mention.
The divisiveness in the nation's capital has made such occasions too few and far between.
But last week, bipartisanship actually reigned. More importantly, the bill that passed muster should go a long way toward making the American public safer, if government carries out the legislation's mandate.
The U.S. Senate on Tuesday added its stamp of approval to the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which is a badly needed update to the 1976 Toxic Substances Control Act. The legislation for the first time regulates tens of thousands toxic chemicals used in a multitude of everyday products ranging from household cleaners to clothing and furniture, The Associated Press reported. The bill passed the U.S. House in May, and President Obama intends to sign it into law, the White House has said.
When enacted, the legislation will require the Environmental Protection Agency to evaluate new and existing chemicals against a new, risk-based safety standard that includes considerations for particularly vulnerable people such as children and pregnant women, according to the AP. It also contains deadlines for the EPA to act and makes it more difficult for industry to claim chemical information is proprietary and therefore secret. The bill also sets new standards for asbestos and other dangerous chemicals, such as formaldehyde, styrene and Bisphenol A, more widely known as BPA.
It may come as a surprise, but the EPA currently has little authority to evaluate the safety of chemicals and only a fraction of the chemicals used in a variety of products have been reviewed. This legislation should change that.
U.S. Sens. Shelley Moore Capito and Joe Manchin, both of West Virginia, were co-sponsors of the measure, and both had a reason specific to the Mountain State for backing a law that will provide a better handle on chemicals used in business and industry. That was the Freedom Industries chemical leak into the Elk River near Charleston in 2014 that tainted the water supply of about 300,000 people for several days. Little was known about the chemical - a coal-cleaning agent - that tainted the water. The Lautenberg Act includes a provision that prioritizes the review and regulation of chemicals near water sources.
One factor working in favor of the legislation was broad support from a variety of special interests, including the chemical industry itself, which said it was difficult to deal with widely different state regulations regarding chemicals. It preferred more uniform standards across the country, although states with their own chemical laws already in effect will be allowed to retain those. Public health groups and many environmental groups also backed it, although some environmental groups said it didn't go far enough.
Overall, though, the legislation is a significant step forward in safeguarding the public and will bring many widely used chemicals under review for the first time. This was a good bill for attracting agreement among both Republicans and Democrats.
http://www.herald-dispatch.com/opinion/editorial-new-chemical-regulation-law-is-long-overdue/article_20b57d9d-603e-56f3-b2f7-f1fa02da502c.html

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Hundreds of Cancer-Causing Chemicals in People: Report

Jun 14, 2016 | BNA Daily Environment Report

By Pat Rizzuto

Hundreds of cancer-causing commercial chemicals have been measured in people, according to an Environmental Working Group report slated for release June 14.
EWG is calling attention to people's exposure to carcinogenic chemicals in a campaign it will launch to complement theCancer Moonshot Initiative President Barack Obama announced in his 2016 State of the Union address, Curt DellaValle, senior EWG scientist, told Bloomberg BNA June 10.
EWG campaigns have brought attention to chemicals in cosmetics, drinking water and agriculture. The group is particularly known for bringing national attention to perfluorooctanoic acid (PFOA), an oil-, water- and heat-resistant chemical that persists in the environment and human bodies. Experimental animals have shown PFOA and related chemicals can harm the development of offspring before and after they are born. Alabama and New York are among the states that have recently struggled to deal with PFOA contamination in drinking water supplies.
Knowing which chemicals people are exposed to is a step toward preventing disease-causing exposures, said DellaValle, author of the EWG report, “The Pollution in People: Cancer-Causing Chemicals in Americans' Bodies.”
Up to 420 pesticides, heavy metals and industrial and consumer chemicals have been measured in biomonitoring studies published in the scientific literature and the Centers for Disease Control and Prevention's National Health and Nutrition Survey, or NHANES, and other sources, EWG's report found. The report could not provide an exact number of chemicals, because biomonitoring studies measure chemical metabolites, which are not always specific to a single chemical.
Arsenic, cadmium and polycyclic aromatic hydrocarbons, which are combustion byproducts, are among the chemicals most commonly found through NHANES' measurements, the report found.
“The mere presence of a carcinogen in the body is not necessarily a serious health threat,” the report said.
The inventory, however, “is important for research aimed at uncovering the links between chemicals and disease and also for policy makers to understand the risks that exist among people,” it said.
EWG classified the chemicals as carcinogens based on decisions by institutions such as the Environmental Protection Agency, National Toxicology Program and World Health Organization's International Agency for Research on Cancer (IARC), DellaValle said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=91872741&vname=dennotallissues&fn=91872741&jd=91872741

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One Big List of All the Cancer-Causing Chemicals Inside Us

Jun 14, 2016 | Mother Jones

By Will Greenberg

An estimated 1.7 million people will be diagnosed with cancer in 2016. While some of this is rooted in sheer genetics, many of these cases may be sparked by substances in the air, soil, food, and materials around us.
A new report released today by the Environmental Working Group shows just how many of these substances end up inside of us. Pulling data from places like the Centers for Disease Control and Prevention, EWG detected up to 420 possible carcinogens—the name for cancer-causing agents—in people's bodies.
"A lot of [known or likely carcinogens] are in products we buy off the shelf and assume are safe," said Curt Dellavalle, lead author on the report.
Using data from the CDC's National Health and Nutrition Survey, the report outlines the cancer risk based on a person's exposure to certain chemicals. Over half of the people tested had levels of arsenic and acrylamide in their bodies high enough to give them a more than 1 in 10,000 risk of cancer. Arsenic is used in products like pesticides, and acrylamide is sometimes found in food packaging and certain foods—potato chips and French fries have been found to have higher-than-average amounts of it. Other commonly found chemicals included benzene, found in petroleum, and DDT and DDE pesticides.
Just because a person has some exposure doesn't mean he is exposed to threatening concentrations. It's not that you're "definitely going to get cancer," Dellavalle said. Individuals vary greatly in their exposure to different chemicals. But knowing just how many potential threats they're exposed to should help people make better decisions for themselves, Dellavalle said.
"Many of the carcinogens this study documents in people find their way into our bodies through food, air, water and consumer products every day," EWG President Ken Cook wrote in a press release. "Dozens of them show up in human umbilical cord blood—which means Americans are exposed to carcinogens before they’ve left the womb."
The EWG report also outlines research from the Halifax Project, which looked at the potential risks of chemical combinations. While past public health efforts worked to limit exposure to "complete carcinogens," researchers are now trying to assess the effects of chemical mixtures that, when combined, could be carcinogenic.
For example, the report notes the combination of Bisphenol A, or BPA (commonly found in food or beverage containers), heavy metals sometimes found in drinking water, and perfluorooctanoic acid (PFO), which is used in fabric stain repellents. When put together, these chemicals can have effects on cells in the body similar to tobacco.
"Many chemicals that can interfere with individual cancer-related processes are not complete carcinogens," the EWG website explains. "But exposure to combinations of these substances could interfere with multiple cancer-related processes, overwhelm the body's defense mechanisms, and result in cancer."
This report comes the same week that President Obama could sign updates to the Toxic Substances Control Act into law. While the updates do give the Environmental Protection Agency more freedom to test the safety of household products, some people criticize the new legislation for removing states' power to pass laws that are tougher than federal restrictions.
Dellavalle said enhancing the power of state governments, along with additional testing and research, will be important in reducing our exposure to these cancer-causing chemicals.
http://www.motherjones.com/environment/2016/06/carcinogens-cancer-chemicals-environmental-working-group-list-pesticides

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Dupont on Trial over C8s Tied to Cancers. But is the Replacement C6 Safer?

Jun 13, 2016 | Environmental Leader

By Ken Silverstein

Right now, Dupont is involved in a civil trial over a chemical it had used to manufacture stain-resistant teflon, called C8. It’s a test case — one of six — that will determine how the remaining 3,500 are dealt with.
Dupont, however, started to phase-out C8 from the market in 2014 after it was determined that it caused a number of cancers linked thyroid and testicular issues. It has replaced it with C6, which is supposed to be safe.
To be precise, C8s have eight carbons, with the most common being PFOA. C6 has six carbons.
“We’re certainly relying on the EPA to make sure that they haven’t replaced one chemical with a health and safety threat with another one that is the same or worse,” says Mike Fitzgerald, an air quality specialist for New Hampshire’s state government, in a public radio story that aired there.
That same story goes to quote others who say that not much is known about C6s and that they could lead to health-related issues: “The best advice I have is let’s treat them like they have toxic properties like C8,” says Philippe Grandjean, a Harvard University researcher.
As we know, the US Congress has passed measures in both chambers to update the 40-year-old Toxic Substances Control Act. The US Environmental Protection Agency had no rights before the measure to test or regulate the 64,000 chemicals in the market. But the revisions will allow it to do so, although it has seven years to evaluate each chemical. EPA told the New Hampshire radio network that it is now reviewing C6.
Some history: DuPont was first sued over this issue in 2001. As part of a settlement that occurred in 2005, both sides agreed that the C8 chemical would be studied by three scientists. Beginning in 2011 and throughout 2012, those experts concluded that C8 was “more likely than not” to cause such conditions as ulcerative colitis, kidney cancer, thyroid disease and testicular cancer.
The C8 byproduct had been dumped into the Ohio River near Parkersburg, W.V., which resulted in the poisoning of water resources in two districts in West Virginia and four in neighboring Ohio.
That’s where the current civil trials are taking place, one of which occurred last October, one that has been settled and one that is taking place right now. In the first trial, the jury awarded the plaintiff $1.6 million in compensatory damages but no punitive damages meant to teach the company lesson. While Dupont is now appealing that verdict, it considered that a victory — that it had no knowledge of the potential harms that could from using C8.
“No one at DuPont ever believed that the very low amounts of C8 that were getting into the community were likely to cause harm to anybody,” said DuPont’s attorney Damond Mace, a partner in Squire Patton Boggs, in his opening statement before the jury in the third test case that began in late May. The issue is about what DuPont knew back then and not what is known today, he said.
The plaintiffs are arguing, however, that DuPont did know that the C8 led to certain cancers as early as 1988. It was then that its own scientists had run tests on rats and found that it produced a “slight” but “statistically significant” increase in the odds of getting testicular cancer.
http://www.environmentalleader.com/2016/06/13/dupont-on-trial-over-c8s-tied-to-cancers-but-is-the-replacement-c6-safer/

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Energy News

(ACC Blog) Spray Foam Gives Energy Efficient Boost to Award Winning Home Designs

Jun 13, 2016 | American Chemistry Council

By Justin Koscher

Homebuilders consider many factors when designing new homes and one of the most important is choosing energy efficient materials to control heating and cooling use in the home. For insulation, spray polyurethane foam (SPF) offers unique benefits that can help lower energy costs* and strengthen a home’s structure while also achieving energy efficiency goals and reducing greenhouse gas emissions – benefits future homebuilders took advantage of in this year’s Race to Zero Student Design Competition.
The Department of Energy’s Race to Zero Student Design Competition was created to inspire students to design the next generation of zero energy ready homes with features that sharply reduce energy use and offset most, if not all, of the remaining energy needs with renewable energy. This year’s competition featured 36 teams from 27 collegiate institutions that presented market-ready designs that met design standards for zero net energy ready homes.
Two of the winning designs featured SPF, including the grand winner and Urban Single-Family Housing Contest winner Prairie View A&M University’s Green Future Double Barrel House. The Green Future Double Barrel House used SPF insulation to complete the design’s continuous thermal and air barriers. This design feature wraps the home in a protective layer of insulation to increase efficiency and minimize air leaks. TheAppalachian State University’s Team (re)Connect Resilient House also utilized SPF to bring home the award for top Suburban Single-Family Housing design.
I’m delighted that the American Chemistry Council’s (ACC) Spray Foam Coalition is a repeat sponsor of the Competition. We believe that SPF is a great fit for net zero energy home designs because it can add high R-value insulation to the home’s roof and walls, and eliminate costly air leaks that account for up to 40% of energy loss in a typical home. These energy savings benefits of SPF are keys to controlling energy use in net zero energy homes, which translates into significantly lower levels of greenhouse gas emissions entering the environment from traditional energy sources.
*Savings vary. Find out why in the seller’s fact sheet on R-values. Higher R-values mean greater insulating power.
https://blog.americanchemistry.com/2016/06/spray-foam-gives-energy-efficient-boost-to-award-winning-home-designs/

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(ACC Mentioned) Energizing the Economy in Appalachian Basin

Jun 13, 2016 | Trib Live

By David Spigelmyer, Shaw Bennett, and Corkey Demarco

Experts agree: The United States has emerged as the world's leading oil and natural gas producer while reducing its carbon emissions more than any other nation.
This significant achievement is thanks to shale development, led largely by producers throughout the Appalachian region. Through responsible development of our abundant shale resources, America will continue to make these achievements, becoming more energy secure, strengthening the environment and supporting hundreds of thousands of good-paying jobs.
In this presidential campaign season, that's an energy policy that both Republicans and Democrats can — and should — rally around as policies aimed at expanding natural gas production and use will further boost the economy, help middle class families and protect the environment.
Natural gas development's crown jewel, however, is sparking a regional manufacturing renaissance. Nowhere is this more true than right here in our region. Just last week, Royal Dutch Shell announced it will invest $6 billion to $7 billion to build a world-class petrochemical facility to leverage the bounty of clean-burning natural gas and natural gas liquids that underlies much of Ohio, Pennsylvania and West Virginia.
What's more, thanks to affordable and reliable natural gas supplies, local manufacturers have a competitive edge and an “energy advantage” in the global marketplace that's driving expansions and job creation, according to a recent IHS study. In fact, the American Chemistry Council concluded in a 2016 analysis that industry investment linked to shale development has reached $164 billion and could support 738,000 permanent new jobs across the U.S. economy by 2023.
Consumers, too, are directly benefiting from shale's energy savings. Thanks to shale development, average annual household energy expenditures have fallen 14.1 percent nationwide, including 25.1 percent for natural gas, according to the U.S. Energy Information Administration.
Just as shale development continues to generate meaningful economic benefits, it's directly aiding our environment, as well. In fact, greater natural gas production and use have largely driven U.S. CO2 emissions to a 25-year low, according to U.S. Environmental Protection Agency data, helping the United States achieve meaningful climate progress.
The facts are clear: America's shale revolution is boosting hardworking middle-class families, driving a manufacturing renaissance and strengthening America's air quality. And with the right policies in place — that encourage responsible production, expanded pipeline infrastructure and greater end use — we can continue to experience shale's economic and environmental opportunities.
During this election season, let's not forget that American energy means good-paying American jobs.
David Spigelmyer is president of the Pennsylvania-based Marcellus Shale Coalition.
Shaw Bennett is executive vice president of the Ohio Oil and Gas Association.
Corky DeMarco is executive director of the West Virginia Oil and Natural Gas Association.
http://triblive.com/opinion/featuredcommentary/10612087-74/gas-natural-shale

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House Republicans Take Aim at Regulations

Jun 14, 2016 | Poitico

By Bernie Becker

House Republicans are taking aim Tuesday at President Barack Obama’s regulatory regime, arguing that the White House has impeded the economic recovery by flooding businesses with new rules.
The House GOP, in rolling out the third plank of their emerging policy agenda, will target a host of specific policies enacted under the Obama administration — including net neutrality rules, the Consumer Financial Protection Bureau (CFPB) put into place by the Dodd-Frank overhaul of financial regulations and a string of rules dealing with energy and climate change.
Story Continued Below
But Republicans are going beyond Obama's specific policies, as they seek to tamp down what they call an extreme and costly regulatory framework that cost the U.S. economy close to $1.9 trillion in 2015, by hurting domestic companies trying to battle international competitors and making everyday purchases more expensive for consumers.
“Despite their substantial impact on the daily lives of the American people, federal regulations receive little scrutiny and few constraints,” House Republicans say in their 57-page document. “In fact, there are no limits on the amount of regulatory costs Washington can impose every year. None.”
Speaker Paul Ryan (R-Wis.), House Majority Leader Kevin McCarthy (R-Calif.) and other GOP leaders and committee chairs will officially present their regulatory proposals at a news conference in front of the Department of Labor on Tuesday.
Ryan has cast the House GOP’s six-part policy agenda as a way to show voters how Republicans would govern, and insisted the proposals would focus on areas that unite a party seeking to heal divisions on areas like immigration and trade.
Few topics unite the GOP like opposing regulations.
Republicans have long said the current system gives agencies every excuse to regulate, as a way of justifying their budgets, and accused the current administration of rejecting projects like the Keystone XL pipeline even when the economic benefits are clear.
Donald Trump, the presumptive GOP nominee whose proposal for a temporary ban on immigration from nations tied to terrorism could easily overshadow this latest set of House policy proposals, has also said that he would get rid of a swarm of regulations and would dismantle Dodd-Frank.
For their part, the House GOP included far more specific policy prescriptions in the regulatory agenda than they did in their efforts on anti-poverty measures and national security last week, even if many of those proposals weren’t exactly new.
That’s in no small part because GOP lawmakers have already released a slew of measures to roll back Obama-era regulations, while conservative think tanks have also made government rules a favorite topic. The House Republican framework includes a pair of references to the Heritage Foundation and 10 to George Mason University’s Mercatus Center.
The House GOP went to great lengths to make the case that they’re not anti-regulation — just trying to strike the right balance between protecting Americans’ health and finances and helping the economy. But Democrats believe that the GOP far overstates the impact of regulations on the economy, and have knocked Republicans for trying to rein in regulators even after events like the 2008 financial collapse and a 2010 mine explosion in West Virginia.
Broadly speaking, the House GOP calls for the federal government to only issue rules when it’s better positioned than states, or if there’s a major immediate problem. (It does make sense, Republicans say, for the federal government to make rules in areas dealing with interstate commerce, like food labeling.)
Republicans also floated the idea of enacting a yearly regulatory budget, which would give each agency a limit on the amount of regulations they could impose in a given year. They called for mandating that agencies publish the full cost of rules, requiring Congress to approve all rules that cost more than $100 million, and for reducing penalties on small businesses that make a first-time paperwork error. And GOP lawmakers included specific proposals that would ease the regulatory burden on small businesses, and make it more difficult to sue businesses.

In more specific policy proposals, the GOP would take on Obama’s net neutrality rules by calling to move the regulatory burden toward the Federal Communications Commission, which would force the agency to “justify continued regulation rather than requiring the public to show it is no longer needed.”
On Dodd-Frank, House Republicans call for turning the CFPB into a bipartisan, five-member commission and put an inspector general in place for the bureau, both longtime GOP priorities. They would also give community banks and credit unions more power to appeal exam findings, and propose winding down Fannie Mae and Freddie Mac.
But perhaps the area that gets the most attention in the GOP regulatory proposal is energy — probably no surprise given Senate Majority Leader Mitch McConnell (R-Ky.) has consistently attacked the Obama administration’s “war on coal” and GOP lawmakers have frequently criticized the White House’s climate regulations.
In their framework, the House GOP calls for making the permitting process for energy projects more efficient, repealing all climate change regulations under the Clean Air Act and increasing offshore drilling.
“Washington sees energy primarily as a source of pollution and not a source of jobs, prosperity and energy security,” House Republicans write. “The environmental and public health benefits of regulations always get consideration (and are frequently exaggerated), while the adverse economic impacts are downplayed or ignored. The addition of global warming concerns greatly exacerbates the imbalance.”
House Republicans will release the fourth part of their policy agenda, which deals with the Constitution, later this week. The two final planks — dealing with health care and the tax code — are due next week.
http://www.politico.com/story/2016/06/house-republicans-regulations-energy-climate-224296

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House GOP Unveiling Agenda to Boost Oil, Gas, Nuclear

Jun 14, 2016 | E&E Daily

By Hannah Hess

House Republicans will roll out a regulatory approach today that "enhances America's energy abundance," as part of a broader legislative agenda for the GOP to run on this fall and pursue under a Donald Trump White House.
The plan calls for giving a green light to the Keystone XL oil pipeline from Canada, streamlining the approval process for hydropower (see related story) and natural gas projects, and repealing all climate change regulations under U.S. EPA's Clean Air Act.
Speaker Paul Ryan (R-Wis.) will join Energy and Commerce Chairman Fred Upton (R-Mich.), Natural Resources Chairman Rob Bishop (R-Utah) and other caucus leaders in front of the Department of Labor headquarters this afternoon to introduce the plan developed by Ryan's task force on reducing regulatory burdens. The panel includes nine standing committee chairmen tasked with building a "more modern and transparent regulatory system" (E&E Daily, March 2).
"The only thing standing between the nation's abundant domestic energy and the consumers and businesses that need it is a long list of federal regulations," according to the lawmakers, who say they want meaningful judicial review of rules developed by federal agencies.
Reflecting a regulatory agenda developed earlier this year by the conservative Republican Study Committee, the plan calls for streamlining approval of big energy projects (E&ENews PM, April 22).
On nuclear energy, Republican leaders say the Nuclear Regulatory Commission must rigorously continue its "Project AIM 2020," and "reassert discipline in the regulatory process to properly align NRC's resources with its workload."
In response to concerns about global warming, the plan calls for passage of H.R. 3880, the "Stopping EPA Overreach Act" introduced by Rep. Gary Palmer (R-Ala.). The bill would repeal all climate change regulations under the Clean Air Act.
The Obama administration's Clean Water Rule is also targeted for withdrawal, along with EPA restrictions on brick kilns.
Republicans say the "extreme view" that America should "keep it in the ground" is finding voice through Obama administration regulations related to fossil fuels. They suggest streamlining federal wildlife management by rewriting the National Environmental Policy Act to eliminate delays, unnecessary duplication and "frivolous litigation."
According to Ryan's office, issues included in the plan represent areas of common ground the speaker has with Trump. Ryan is confident these plans would pass in 2017 and be signed into law under a President Trump.
http://www.eenews.net/eedaily/2016/06/14/stories/1060038764

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Chamber Pushes Senate on Energy Bill

Jun 13, 2016 | The Hill - E2 Wire

By Devin Henry

The U.S. Chamber of Commerce is encouraging senators to join a conference committee with the House on an energy overhaul bill.
In a Monday letter to senators, the Chamber said an energy reform bill is “crucial” to “maximize and prolong the benefits the recent energy renaissance is producing.”
The only way to overhaul those energy laws now is to merge the rewrite packages already passed separately by the House and Senate. The House voted in May to create a conference committee to do so, but the issue remains open in the Senate.
“The Chamber urges the Senate to move to formal conference and begin work resolving differences between the House- and Senate-passed versions of S. 2012 so that Congress can expeditiously approve legislation to improve energy efficiency, energy infrastructure, overall American energy policy and energy policy involving tribal lands,” wrote R. Bruce Josten, the Chamber’s executive vice president of government affairs.
The Chamber says it will score a Senate vote on going to conference, the first time in at least a decade the business group has considered a conference committee procedural vote important enough to include in its legislative scorecard.
The Senate passed its energy reform bill, a collection of policy changes aimed at tasks like electric grid modernization and natural gas exports, in April. The House in May voted to send members to a conference committee to write a compromise package.
The Senate, though, has yet to take that step, despite Energy and Natural Resources Committee Chairwoman Lisa Murkowski’s (R-Alaska) hope that such a vote would come shortly after Memorial Day.
Industry supporters say their hopes for a reform package were buoyed by a deal on a bill changing chemical safety laws, a major legislative victory that came together after months of behind-the-scenes deal-making.
But lawmakers have a constricted legislative calendar this year, making it tougher for an energy bill deal to come together before November’s elections.
http://thehill.com/policy/energy-environment/283262-chamber-pushes-senate-on-energy-bill

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U.S. Chamber Makes Unusual Push for Conference Committee

Jun 13, 2016 | E&E News PM

By Geof Koss

The U.S. Chamber of Commerce today told senators it would "key vote" the upcoming roll call on going to conference with the House on energy reform legislation.
In a letter to the Senate, the business group urged support for the vote to go to conference, saying broad energy legislation was long overdue given the dramatic changes in the energy landscape since enactment of the last major energy bill in 2007.
"The House and Senate versions of S. 2012 both would take important steps to address many areas of high priority for American businesses: siting, efficiency, and infrastructure," Bruce Josten, the U.S. Chamber's executive vice president for government affairs, wrote in a letter to lawmakers.
In a statement, the U.S. Chamber said it was unusual for the group to score votes on procedural motions to go to conference. The group said it had not taken such a step in at least a decade.
The prodding comes as top lawmakers in both chambers are expected to huddle this week to talk about how a formal conference committee would reconcile the competing bills (E&E Daily, June 13).
Democrats in both chambers are wary of a formal conference because of the House's decision to add a number of bills to its reform package that the White House has threatened to veto.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who would lead the conference, says Democrats should trust the process, which aides say will resemble the bipartisan method in which she and ranking member Maria Cantwell (D-Wash.) assembled the Senate bill, S. 2012.
It's unclear when the Senate will vote to go to conference, which will require the support of 60 senators, but Murkowski last week said it was unlikely until the planned meeting of House and Senate energy panel leaders.
In its letter, the U.S. Chamber urges the Senate to move to "begin work resolving differences between the House- and Senate-passed versions of S. 2012 so that Congress can expeditiously approve legislation to improve energy efficiency, energy infrastructure, overall American energy policy, and energy policy involving tribal lands."
A spokesman for Heritage Action for America said the conservative group would not "key vote" the conference roll call but reiterated its opposition to the Senate bill.
"We would welcome Democrat obstructionism that inadvertently blocks the advance of big-government policies," spokesman Dan Holler wrote in an email today.
The group last month outlined a list of issues it would be watching in the conference process.
http://www.eenews.net/eenewspm/2016/06/13/stories/1060038739

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Energy Bill Talks to Feature Fight Over Permitting Reform

Jun 14, 2016 | E&E Daily

By Hannah Northey

When Rep. Jerry McNerney pushed House Republicans last year to advance hydropower reforms within the chamber's energy bill, the California Democrat didn't get everything he wanted. Then again, he said Republicans didn't either. McNerney said it was a positive start.
During an interview on Capitol Hill last week, the former energy consultant and engineer said he still hopes the upcoming talks will yield true compromise for reforming hydroelectric licensing at the Federal Energy Regulatory Commission while protecting environmental laws. But he's not betting on it.
McNerney says he wasn't happy with the language he crafted with Republican Rep. Cathy McMorris Rodgers of Washington and ended up voting against the House bill. He acknowledged it triggered a simmering debate between industry groups like the National Hydropower Association and water quality advocates over critical environmental protections.
A major concern for McNerney going forward is that he won't be in the room if the Senate joins the House in a conference committee to merge a revised House bill with the Senate's S. 2012. His chamber's leaders left him off the list of conferees.
"I didn't get invited to the conference committee, which was a disappointment because I have six or seven provisions in that bill, and that's more than all the other Democrats put together," McNerney said.
At the heart of the debate is a provision in the House energy bill that would allow FERC to act as the lead agency and set schedules for states, American Indian tribes and other federal regulators when conducting environmental reviews of new and existing hydroelectric projects.
FERC would also be able to "move forward with proposed action" if state or local permitting entities missed the commission's deadlines or failed to get more time through the courts. McNerney said reform was critical to unlocking projects that currently face up to a decade -- and cost companies millions of dollars -- to permit.
But the House bill provisions have generated stark opposition from the White House; the states of California and Maryland; Native American tribes; and environmental, recreational, fishing and water quality advocates. They say the legislation threatens to undermine the Clean Water Act and Endangered Species Act.
Utilities like Southern Co. and Pacific Gas and Electric Co., a host of power industry groups and the National Hydropower Association call the language critical to ensuring greater cooperation between industry and regulators, timely reviews, and controlling the lawsuits and red tape that have stymied hydropower development.
With those concerns in mind and with such contrasting views, McNerney asked the Congressional Research Service to look into the matter.
In a memo to the congressman, CRS found the hydropower provisions "are unlikely to be considered a waiver of the Endangered Species Act or the Clean Water Act" if an agency or tribe cannot meet FERC's schedule.
At the same time, CRS pointed out the House language doesn't explain what happens if an agency is unable to satisfy those federal laws, even if it exceeds FERC's timeline and gets a 90-day extension in court. Such "ambiguities," CRS said, would have to be dealt with at FERC, state agencies or in court "with the final result possibly constituting a 'waiver' of certain aspects of the Endangered Species Act or the Clean Water Act in the eyes of some observers."
CRS also found schedules that FERC would set under the bill would presumably account for state environmental processes, and allow state agencies to identify -- and seek federal attention -- to areas of concern.
McNerney said the open-ended language in some of the hydropower provisions -- namely, language that would allow FERC and applicants to "move forward" -- leaves space for the commission to advance the permitting process without introducing mandates. And that is critical to expanding carbon-reducing hydroelectric projects that currently make up 18 percent of the nation's renewable energy resources, he said.
"I wanted that to be fairly vague, I didn't want it to say, 'Well, they can make a decision,' but they can move forward with other measures to try to get the decisions made rather than just waiting for the agencies that are lagging," McNerney said.
McNerney said he sympathizes with environmental and water quality groups and doesn't want them to feel "bulldozed," nor does he want to see the legislation completely pre-empt state and local regulators.Dueling narratives
Jim Bradley, vice president of policy and government relations for the group American Rivers, said utilities with existing hydroelectric dams don't always provide state agencies with water quality data quickly enough to get Clean Water Act certifications, which delays approvals.
As it stands, FERC cannot issue a new license without the state signing off on water quality certificates. That could change if the House hydropower provisions remain intact, Bradley said.
Under the House energy bill, Bradley said FERC could license a new hydroelectric project or approve a relicensing application without the state's contingencies. What's more, it could also undermine other federal agencies protecting public lands and American Indian reservations, he said.
The Fish and Wildlife Service and the National Marine Fisheries Service, for example, may require conditions to provide for improved fish passage -- protections that would be pushed aside if the agencies didn't meet FERC's prescribed timelines under the bill, he said.
Bradley said the legislation's proponents, including some large utilities, would prefer to see FERC, not state and federal regulators, handle sensitive water quality issues within their upcoming license applications.
"Some of these utilities have big projects in some tricky places, like drought-stricken California, coming up for relicensing," he said, adding that the House bill "would take California's authority to manage water within the state, and effectively transfer that authority to FERC."
Not so, says NHA and a number of utilities.
Jeff Leahey, who monitors legislative, regulatory and legal issues for the NHA, said the House bill requires extensive up-front coordination between FERC and other state and local agencies when hashing out the licensing schedule.
That, in turn, allows plenty of time for decisionmaking agencies to figure out which environmental studies or other information they will need going forward, Leahey said.
"It's our hope that the 'move forward' provision won't be needed," Leahey said. Projects face "endless delays" without such a backstop, he added.
McNerney said he will keep pushing the conference committee to find a middle ground. "I see it being negotiated," he said. "I imagine it'll get more clear. If you work hard enough, you can find that compromise."
http://www.eenews.net/eedaily/2016/06/14/stories/1060038769

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EPA: Groups Can't Challenge Toxics Determination

Jun 14, 2016 | BNA Daily Environment Report

By Patrick Ambrosio

A federal appeals court should dismiss a lawsuit brought by environmental organizations because the petitioners have not brought a direct, timely challenge to an Environmental Protection Agency finding that it has met its obligations to limit hazardous air pollutants from various industrial sectors (Sierra Club v. EPA, D.C. Cir., No. 15-1246, brief filed 6/13/16).
The Sierra Club and the California Communities Against Toxics want the U.S. Court of Appeals for the District of Columbia Circuit to review a June 2015 EPA determination that the agency has fulfilled its duty to regulate industrial pollution sources responsible for at least 90 percent of the aggregate emissions of the following seven hazardous air pollutants: alkylated lead compounds, polycyclic organic matter (POM), hexachlorobenzene (HCB), mercury, polychlorinated biphenyls (PCBs), 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin. The organizations alleged that the EPA unlawfully claimed to meet that 90 percent threshold through the improper use of surrogate pollutants.
The environmental groups argued that the EPA's refusal to set standards that directly regulated some of those pollutants has deprived people living near petroleum refineries, pesticide manufacturing facilities and other pollution sources of protection that Congress “obviously” intended to provide when it established the 90 percent threshold requirement.
However, the EPA argued in a June 13 response brief that the Sierra Club presented “little or no direct challenge” to the agency's determination that it met the 90 percent threshold through prior regulations that set emissions standards for various industry sectors. The environmental organizations' lawsuit represents a challenge to the adequacy of those underlying standards that should have been brought within 60 days of their promulgation, the federal government argued.
“Contrary to Sierra Club's suggestion, section 7412(c)(6) [of the Clean Air Act] does not provide an independent basis to reopen otherwise-untimely challenges to these long-standing emissions standards,” the EPA said. “The 90 Percent Rule does not provide a vehicle to reexamine the sufficiency of previously-promulgated emission standards.”
The environmental petitioners have until July 7 to file their reply brief addressing EPA's claims. Final briefs in the litigation are due to the court by July 29.
Sierra Club successfully challenged a previous determination that the EPA had met the 90 percent threshold, which was issued in 2011. The D.C. Circuit in 2012 vacated that finding and remanded the matter to the EPA after ruling that the notice required a notice and comment opportunity (Sierra Club v. EPA, 699 F.3d 530, 2012 BL 295906, 75 ERC 1644 (D.C. Cir. 2012)).
Earthjustice attorneys Neil Gormley and James Pew are representing the petitioners. The EPA is represented by Amy Branning, an attorney in the EPA's Office of General Counsel, and Eileen McDonough, a Justice Department attorney.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=91872752&vname=dennotallissues&fn=91872752&jd=91872752

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High Court Won't Revisit EPA's Mercury Power Plant Rule

Jun 14, 2016 | BNA Daily Environment Report

By Patrick Ambrosio

The U.S. Supreme Court will not review a federal appeals court decision that left the Environmental Protection Agency's Mercury and Air Toxics Standards in place while the agency worked to address a legal flaw in the rulemaking process (Michigan v. EPA, U.S., No. 15-1152, cert. denied 6/13/16).
A coalition of 20 states, led by Michigan, unsuccessfully petitioned the high court to consider whether a court can opt to leave a rule in place if a regulatory agency didn't have the statutory authority to issue that rule in the first place. The Supreme Court announced its decision as part of its June 13 orders list, which did not include any explanation of the court's decision.
The states in 2015 successfully challenged the Mercury and Air Toxics Standards, obtaining a favorable Supreme Court ruling that the EPA erred when it did not consider cost in its decision that it was “appropriate and necessary” to regulate power plant emissions under Section 112 of the Clean Air Act. However, the D.C. Circuit later decided to leave the standards, which are estimated by the EPA to cost about $9.6 billion per year, in place (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015); White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, 12/15/15).
Had the court granted the petition, it would have reviewed a more than 20-year-old test used by the D.C. Circuit to decide whether to vacate an agency regulation or action while the agency works to address a legal flaw on remand. That test, established in a 1993 decision, involves an analysis of the seriousness of the legal flaw in question and the disruptive consequences of vacating a decision only to have it later be reissued (Allied-Signal Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 300 U.S. App. D.C. 198 (D.C. Cir. 1993)).
States: EPA Didn't Follow Ruling
The states had argued in their petition and supporting brief that the Mercury and Air Toxics Standards litigation offered “an ideal vehicle” for reviewing the D.C. Circuit's application of the Allied-Signal test because the EPA lacked the authority to regulate hazardous air pollution from power plants before April 2016, when the agency issued a final supplemental “appropriate and necessary” finding that included the required cost consideration.
The states are disappointed that the Supreme Court decided to not enforce the states' victory in the 2015 litigation, a spokeswoman for Michigan Attorney General Bill Schuette (R) said.
“The United States Supreme Court correctly awarded Michigan a victory last year in this case of unconstitutional federal overreach,” Andrea Bitely, communications director for Schuette, said in an e-mail. “The EPA blatantly refused to follow that ruling.”
While the states were disappointed in the decision, EPA spokeswoman Melissa Harrison said in a June 13 statement that the agency is pleased that the Supreme Court opted to not review the decision to leave the Mercury and Air Toxics Standards in place.
“These practical and achievable standards cut harmful pollution from power plants, saving thousands of lives each year and preventing heart and asthma attacks,” Harrison said. “All told, for every dollar spent to make these cuts, the public is receiving up to $9 in health benefits.”
The Environmental Defense Fund and Sierra Club, both of which were intervenors in the litigation, each issued statements welcoming the Supreme Court's decision. Graham McCahan, senior attorney for the Environmental Defense Fund, noted that the petition for certiorari would have threatened the ability of federal appeals courts to “recognize the serious practical impacts” of their decisions and provide appropriate relief.
Litigation Not Over
While the Supreme Court's denial of the state petition puts an end to this round of litigation over the 2012 Mercury and Air Toxics Standards, this is not the end of the legal battle over the regulation.
Coal giant Murray Energy Corp. and the power plant trade association ARIPPA have both filed lawsuits in the D.C. Circuit challenging the EPA's supplemental finding (RIN:2060-AS76) that reaffirmed the MATS rule (Murray Energy Corp. v. EPA, D.C. Cir., No. 16-1127, 4/25/16).
Attorneys previously told Bloomberg BNA that although the power sector has invested billions of dollars in pollution controls to meet the standards, litigation over the supplemental finding offers opponents of the Obama administration's regulatory approach an opportunity to limit the EPA's authority. One area of focus in the litigation is likely to be on the EPA's use of co-benefits, or ancillary benefits, in the cost-benefit analyses used to justify regulations.

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Supreme Court Rejects Case Challenging Key White House Air Pollution Regulation

Jun 13, 2016 | The Washington Post

By Brady Dennis

The Supreme Court on Monday left intact a key Obama administration environmental regulation, refusing to take up an appeal from 20 states to block rules that limit the emissions of mercury and other harmful pollutants that are byproducts of burning coal.
The high court’s decision leaves in place a lower-court ruling that found that the regulations, put in place several years ago by the Environmental Protection Agency, could remain in effect while the agency revised the way it had calculated the potential industry compliance costs. The EPA finalized its updated cost analysis in April.
In a statement Monday, the EPA praised the court’s decision not to review the case, saying the mercury standards are an important part of a broader effort to ensure clean air for Americans.
“These practical and achievable standards cut harmful pollution from power plants, saving thousands of lives each year and preventing heart and asthma attacks. Power plants are the largest source of mercury in the United States,” the agency said. “Mercury is a neurotoxin that can damage children’s developing nervous systems, reducing their ability to think and learn. All told, for every dollar spent to make these cuts, the public is receiving up to $9 in health benefits.”
In March, a month after hobbling the Clean Power Plan — the Obama administration’s signature regulation on climate change — Chief Justice John G. Roberts Jr. rejected a separate request to stay the Mercury and Air Toxic Standards rule. More than 20 states had joined a lawsuit opposing the MATS rule, arguing that the controversial pollution controls mandated by the regulation are too expensive relative to the health benefits. The White House and environmental groups argued that the rule was not only economically sound, but also an important public health measure.
Coal-burning power plants are the nation’s largest single source of man-made mercury. Decades of mercury pollution from coal-burning also has contributed to elevated levels of the toxin in fish.
In April, the EPA issued an updated analysis of the estimated costs and benefits of the regulations, arguing that the cost for the industry to comply would amount to a fraction of annual revenue and probably would not lead to steep increases in customer bills. As the fight over the MATS rule has worked its way through the courts in recent years, many utilities have already complied with the new requirements.
https://www.washingtonpost.com/news/energy-environment/wp/2016/06/13/supreme-court-rejects-case-challenging-key-white-house-air-pollution-regulation/

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Supreme Court Rejects New Challenge to Obama Air Pollution Rule

Jun 13, 2016 | The Hill - E2 Wire

By Timothy Cama

The Supreme Court on Monday declined to consider a third request from a group of states to overturn a sweeping Obama administration air pollution rule.
The states, led by Michigan and joined by numerous business and energy interests, told the court that the Environmental Protection Agency’s (EPA) 2012 mercury and air toxics standards rule for coal-fired power plants is illegal, and a lower court erred when it refused to overturn the regulation.
The Supreme Court ruled nearly a year ago that the EPA did not properly consider costs before writing the regulation. But it did not overturn the rule, instead kicking it down to the Court of Appeals for the District of Columbia Circuit, which decided in December to let the EPA keep enforcing the measure.
The mercury rule is separate from the Clean Power Plan, which limits carbon dioxide emissions and is currently on hold due to a Supreme Court stay.
Justices, as usual, did not say why they declined to take the mercury rule appeal.
The Supreme Court’s Monday decision is a major victory for the Obama administration and environmentalists.
“Today, millions of American families and children can breathe easier knowing that these life-saving limits on toxic pollution are intact,” Vicki Patton, general counsel at the Environmental Defense Fund, said in a statement.
The EPA said it is “pleased” with the decision.
“These practical and achievable standards cut harmful pollution from power plants, saving thousands of lives each year and preventing heart and asthma attacks,” EPA spokeswoman Melissa Harrison said in a statement.
“Power plants are the largest source of mercury in the United States. Mercury is a neurotoxin that can damage children’s developing nervous systems, reducing their ability to think and learn.”
At a $9.6 billion projected annual cost, the mercury rule is one of the most expensive from the Obama administration. It’s been blamed for the shutdowns of hundreds of coal-fired power plants.
But it’s projected to bring between $37 billion and $90 billion in benefits and prevent up to 11,000 premature deaths and 130,000 asthma cases annually.
Andrea Bitely, spokeswoman for Michigan Attorney General Bill Schuette, pointed to the Supreme Court ruling last year that the mercury rule was illegal.
“The EPA blatantly refused to follow that ruling, requiring us to return to the [Supreme Court],” she said. “We are very disappointed in the post-[Justice Antonin] Scalia Court’s decision this year to not enforce Michigan’s victory.”
Michigan and its allies also tried earlier this year to get the Supreme Court to issue a temporary stay on the regulation, which the court refused to do.
The EPA issued a regulation in April to fix the problem identified by the Supreme Court last year, declaring that the cost-benefit analysis for the rule makes it necessary and appropriate.
The litigations that previously challenged the regulation in court are also challenging the April supplement.
http://thehill.com/policy/energy-environment/283243-supreme-court-rejects-new-challenge-to-obama-air-pollution-rule

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ESPS Critics Seek To Assure States That Decline To Craft Compliance Plans

Jun 13, 2016 | Inside EPA

By Abby Smith

Opponents of EPA’s landmark power plant greenhouse gas rule are moving to reassure states that choose to halt compliance planning following the high court stay of the regulation that they will face no penalty if the rule is ultimately upheld, pushing back against arguments from advocates that states that do not continue compliance planning during the period of the stay will be left behind.
States that choose to put their pencils down “should rest assured” that even if the rule is upheld, “then the important thing for those states to remember is you’re going to get the full amount of time you would have had. And you just need to be confident in that,” Allison Wood, an attorney for Hunton & Williams representing several utility interests in the ESPS litigation, told Inside EPA.
Wood spoke on the sidelines of a June 9 hearing on the stay before the Senate environment committee, where she testified -- along with Tri-State Generation CEO Michael McInnes, Missouri state Rep. Jack Bondon (R), New York University Professor Richard Revez and Connecticut energy official Katie Dykes.
Her comments come as Republican lawmakers and industry representatives are also using this argument to reiterate that all of the deadlines of EPA’s power plant existing source performance standards (ESPS) must be pushed back -- or “tolled” -- if the rule survives litigation by at least the number of days that the stay was in place.
Such a practice is consistent with precedent, they argue, as well as required by the definition of a stay as laid out in administrative law.
This serves as a rebuttal to suggestions from EPA officials that some of the rule’s later deadlines, such as the 2022 start to the compliance period and the 2030 final compliance date, may not slip.
“The agency’s response . . . ignores existing law. The law is clear that the Supreme Court’s grant of a stay inherently extends the rule’s deadlines to preserve the ‘status quo,’ which pauses implementation of the rule in its entirety until completion of judicial review,” Senate environment committee Chairman James Inhofe (R-OK) writes in a June 9 letterEPA acting air chief Janet McCabe.
He adds that EPA and the Department of Justice (DOJ) “have consistently held to this understanding.”
Inhofe released the letter shortly after completing the environment committee's hearing on the implications of the ESPS stay -- the first hearing related to oversight of the rule since the Supreme Court in an unprecedented move Feb. 9 granted petitioners’ stay request.
In her testimony at the hearing, and in comments to Inside EPA, Wood emphasized the purpose of a stay, which she writes “suspend[s] administrative alteration of the status quo.” Thus, she argues, to preserve that status quo should the rule be upheld, EPA would need to toll the ESPS deadlines by at least the number of days the stay was in place to allow state the same amount of time to comply as they would have had prior to the stay.
Sparring Letters
Wood's argument runs counter to statements from both EPA officials and environmentalists, who contend that while the earlier planning deadlines -- particularly the Sept. 6 deadline for submitting initial compliance plans -- will have to be adjusted, whether the later compliance deadlines, in 2022 and in 2030, will have to be pushed back is less certain.
“The ultimate effect of the stay on [Clean Power Plan (CPP)] deadlines will be determined when the stay is lifted,” McCabe wrote in an April 18 letter to Inhofe that was previously obtained by Inside EPA.
McCabe’s letter was a response to Inhofe’s March 10 letter arguing that the high court’s stay order includes “inherent” requirements to postpone all of the deadlines in the rule. However, McCabe in her letter -- which echoed her earlier comments that it is “premature” to speculate whether the rule’s deadlines would be delayed -- said that “different applicants requested different relief.”
Inhofe’s recent letter comes in direct response to McCabe’s April letter, challenging her assertion that the effect of the stay on the deadlines is “ambiguous” and asking her to clarify by June 21 whether EPA would “abide by the tolling requirements inherent in the Supreme Court’s Stay decision.”
“I remain concerned that your response to my letter and EPA’s continued public statements refusing to acknowledge the clear impact of the Supreme Court’s stay are not helpful to states, and erroneously encourages the spending of limited state resources to devise compliance strategies for a rule whose deadlines are tolled, and very likely will be overturned,” Inhofe writes.
Wood in her testimony also pushed back on the notion that the rule’s later deadlines would not have to be postponed.
Speaking to Inside EPA after the hearing, she noted comments from EPA officials like McCabe and advocates that the 2022 and 2030 deadlines are “so far in the future,” which they say raises questions about whether those need to be pushed out.
But Wood rejected the idea that the deadlines do not need to be tolled. Failing to postpone the targets would unjustly punish states that choose to adhere to the stay and suspend ESPS planning until legal challenges are resolved, she argued, a notion she said undercuts the relief that the Supreme Court granted when it issued the stay.
“[O]therwise you’re not giving the states or the regulated entities the full amount of time that the rule had contemplated,” she said.
As an example, Wood noted that if the stay were to last 500 days, “you add 500 days to every deadline. And if you don’t do that, even for a 2030 deadline, you’re not giving the full amount of time that the rule said you needed.”
‘Picking Up Many Pens’
Inhofe in his letter also challenges McCabe on EPA’s decision to continue work on ESPS related measures, such as its early action incentive program -- dubbed the Clean Energy Incentive Program (CEIP) -- and its model trading rules.
EPA officials have argued that they are able to continue such work on these measures consistent with the high court stay, and the agency sent April 26 its proposed CEIP to White House regulatory reviewers.
Inhofe in his letter, however, echoes arguments made previously by fellow Republican lawmakers -- House energy committee chairman Fred Upton (MI), energy and power subcommittee chairman Ed Whitfield (KY) and oversight panel chair Tim Murphy (PA) -- in a May 13 letter that the agency’s work on the CEIP and model trading rules will “compel” action from states and regulated utilities or forgo legal rights, thus violating the stay.
Wood expanded on this argument in her testimony at the hearing, noting that once a proposed CEIP is published, it triggers a notice and comment -- effectively requiring action from states and utilities.
“If this were only something that were being given to states that wanted to work and didn’t affect the states that didn’t, that would be OK,” Wood told Inside EPA. But because the proposed CEIP will trigger a comment period, “if you’re a state that didn’t want to be working during the stay, you have to pick up your pen and write comments and evaluate this rule, otherwise if at the end of the day the rule comes back, you’re going to be in a position where you didn’t have any opportunity to have any input on this part of the program,” she said.
Wood noted that the same is true with the model trading rules, which EPA had pledged prior to the stay to release this summer -- though it is unclear whether the agency will still do so.
But once the model trading rules -- which were proposed as part of the agency’s federal implementation plan -- are finalized, that triggers under the Clean Air Act a 60-day window in which to file a legal challenge or “otherwise you waive your right to do so,” Wood said.
She added: “Then suddenly you’re in litigation, and that’s all very entailed and costly and involves picking up many pens.”
Inhofe in his letter asks McCabe to respond to this point, asking: “How does forcing states to conduct such activity comport with your statement that EPA is not taking any action or imposing any obligation on states?”
Compliance Deadlines
Revez, the law professor, however, disputed Wood and Inhofe’s points during his testimony at the hearing, arguing that EPA is not required to cease work on the CEIP and model trading rules, nor is it necessarily required to toll the compliance deadlines.
“[I]t is simply not true that the Clean Power Plan’s deadlines have all been automatically tolled by the Supreme Court’s stay or that they will necessarily be tolled in the future by the period of time for which the stay is in effect,” Revez testified.
He later added: [I]f the Plan is ultimately upheld by the courts, the determination of appropriate revised compliance deadlines will have to be made when the stay is lifted. Neither general remedial principles nor judicial precedent supports the proposition that, if a court has granted interim equitable relief . . . blocking enforcement of a statute or regulation during litigation, the court must delay future implementation dates even after upholding the statute or regulation on the merits and dissolving the interim remedy.”
But Wood, in rebuttal to Revez’s comments, told Inside EPA that he is correct that typically the court waits to address the tolling of the deadlines until after the case is resolved and a regulation is upheld.
Nevertheless, “the thing that they’re overlooking is that when you get to that stage, [the courts] always do it on the day-to-day basis, otherwise it doesn’t preserve the status quo,” she said.
http://insideepa.com/daily-news/esps-critics-seek-assure-states-decline-craft-compliance-plans

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Chemical Security News

(ACC Mentioned) EPA Sends Final Hazardous Waste Rule To OMB

Jun 13, 2016 | Inside EPA

EPA has sent to the White House for review its final hazardous waste generator improvements rule, which includes dozens of changes to current Resource Conservation and Recovery Act (RCRA) regulations intended to to improve the effectiveness of, and compliance with, the agency's hazardous waste generator program.
The White House Office of Management and Budget (OMB) received the rule June 10, according to the office's website. OMB typically reviews rules for 90 days, though that can vary depending on the rule.
EPA has touted the rule as responding to concerns from states and the regulated community that current RCRA hazardous waste generator regulations don't fit all sectors. The agency proposed the waste generator changes Aug. 31 at the same time it proposed a hazardous waste pharmaceuticals rule intended to improve the management and disposal of hazardous waste pharmaceuticals at healthcare facilities.
The broad scope of the proposed generator changes drew mixed reactions from industry, with industry groups generally supporting EPA's objective to clarify and consolidate requirements but questioning whether some provisions would provide relief.
For example, the Retail Industry Leaders Association said in Dec. 23 comments that while part of the proposed rule "would offer a small measure of regulatory relief to a small number of retailers, other portions of the proposal would actually increase significantly the regulatory burdens on virtually the entire retail industry.”
A host of industry groups calling themselves "Industrial Generators" -- including the American Chemistry Council, American Forest & Paper Association, The Fertilizer Institute, among others -- said in Dec. 23 comments that instead of clarifying existing regulations, the rule would "impose new burdensome requirements on hazardous waste generators.”
The National Mining Association in Dec. 22 comments echoed this thought, saying it is "concerned that in its zeal to improve the generator rules EPA is proposing solutions to problems that do not actually exist and is overstepping its statutory obligations."
http://insideepa.com/news-briefs/epa-sends-final-hazardous-waste-rule-omb

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Transportation News

Democrats Mount New Crude Train Safety Push After Derailment

Jun 14, 2016 | BNA Daily Environment Report

By Ari Natter

Senate Democrats are renewing a push for oil train safety legislation after a fiery crude-by-rail derailment resulting in a spill in Oregon's pristine Columbia River Gorge, but analysts say the incident isn't likely to be enough to spur congressional action anytime soon.
The accident in Mosier, Ore., which resulted in a light sheen of oil on the Columbia River but no deaths or injuries, is the latest in a string of more than two dozen significant fires and spills involving trains transporting oil as the amount of oil being shipped by railroad has increased dramatically over the past five years as domestic oil production has increased.
“We need more rail safety that's for sure,” Sen. Chuck Schumer (D-N.Y.) told Bloomberg BNA.
Schumer, who is poised to become the Senate's next majority leader if Democrats take control of the Senate in 2017, has called for more stringent federal requirements for trains shipping crude by rail. He is also the author of legislation that would implement new speed restrictions for oil trains traveling in certain areas and require the phaseout of older tank cars by 2020—five years faster than requirements set by the Department of Transportation in May 2015.
“For far too long, the rail and oil industries have taken advantage of the lack of rules by making excuse after excuse to delay phasing-out the dangerous and outdated tanker cars,” Schumer said in statement announcing the Eliminating Dangerous Oil Cars and Ensuring Community Safety Act in May 2015.
Legislation Ready
The bill (S. 1462) would also require the use of new volatility standards opposed by industry for the transport of crude by rail, mandate increased rail track inspections, and require new oil spill response and derailment reporting requirements.
Other crude-by-rail safety bills pending in Congress include legislation introduced in 2015 by Sen. Ron Wyden (D-Ore.) that would require shippers using older tank cars to pay an increasing fee that would reach $1,400 per tank car at the end of 2018. The money would be used for oil spill cleanup, emergency response, and temporary tax credits for upgrading to newer tank cars. The legislation, the Hazardous Materials Rail Transportation Safety Improvement Act of 2015 (S. 1175) which has 11 Democratic co-sponsors, is pending before the Senate Finance Committee.
“I think I'm going to try and push it now,” Wyden told Bloomberg BNA in an interview days after the June 3 derailment in his state.
The crash occurred after at least one bolt used to fasten the tracks to rail ties broke, resulting in 16 of the 96 tank car train hauling oil from the Bakken region of North Dakota to a refinery in Washington state to leave the tracks, Justin Jacobs a spokesman for Union Pacific told Bloomberg BNA. That section of track had been inspected just four days prior to the crash, he said.
Rail Cars Met Current Standards
According to the Federal Railroad Administration, the train cars involved in the leak and resulting fire were jacketed CPC-1232s, newer-model cars which are supposed to be less likely to rupture in an accident. Under Transportation Department's rules for trains carrying oil and other hazardous materials, the tank cars aren't scheduled to be phased out until 2025.
The resulting fire forced residents of Mosier, population 433, to evacuate their homes near the state's border with Washington for days. The area was designated as a National Scenic Area through an act of law signed by President Ronald Reagan in 1986.
“We believe a small amount of oil did potentially make it into the river but that was quickly contained,” Jacobs said. “We put booms around it and we are monitoring it.”
Locals say they consider themselves lucky.
“If this had happened two miles down the track, then all 42,000 gallons of the oil would have ended up in the Columbia river,” Arlene Burns, the mayor of Mosier, said during a conference call organized by the environmental group Stand Up To Oil. “We took the hit as much as possible for the river. It's sort of a blessing it landed in our sewage treatment plant.”
Locals Say They're Lucky
Steve Lawrence, the mayor of the nearby town The Dalles, added on the call that if the crash occurred just five miles to the west in Hood River, a tourist destination known for its wind sailing and local craft breweries, “it would have wiped out the damn town.”
The incident was the first significant oil train crash in the U.S. since November 2015 when more than a dozen cars loaded with crude oil derailed from a Canadian Pacific Railway train prompting the evacuation of dozens of homes near Watertown, Wis.
The amount of oil being shipped by rail in the U.S. increased from 55,000 barrels per day in 2010 to a high of more than 1 million barrels per day in 2014, as domestic oil production boomed, according to the Energy Information Administration. That amount decreased to 891,000 barrels per day in 2015 and has declined roughly 20 percent more during the first three months of 2016, as the drop in oil prices crimped domestic production, according to data from the agency, an arm of the Energy Department.
Despite the national decrease, residents along the Columbia River Gorge say they have seen an increase in the number of oil trains rolling through the area.
“Individuals in the towns of the Columbia Gorge have been very concerned about this since the vast increase in oil traffic,” Sen. Jeff Merkley (D-Ore.) told Bloomberg BNA. “People have pictured them as rolling explosion hazards and the fact is this crash confirmed all the worst fears. So we have to be much more aggressive in preventing this from happening again.”

Impact on Terminal?
“We are exploring legislation,” Merkley added.
The number of oil trains rolling through the area would almost certainly increase further if a number of pending oil by rail terminals, including one proposed by Tesoro Corp. for the Port of Vancouver, Wash., are approved.
The Tesoro facility, a joint venture with Savage Cos., would have the capacity to upload 360,000 barrels per day for shipment to refineries on the West Coast and possibly overseas.
The state's Energy Facility Site Evaluation Council is expected to make a decision on whether Washington Gov. Jay Inslee (D) approves the project sometime this year. The accident is unlikely to help Tesoro's case, said Dan Serres, conservation director for Columbia River Keeper, an environmental group focused on protecting the Columbia River.
“I think having an oil train derail spill and burn is exactly what people have been talking about,” Serres told Bloomberg BNA. “We think the Tesoro project is a dead man walking.”
Tina Barbee, a spokeswoman for Tesoro subsidiary Vancouver Energy, said they remain committed to the proposed terminal.
“Tesoro and Savage have decades of combined experience operating marine and rail crude oil facilities safely, and the facts support our ability to build and operate a terminal at the Port of Vancouver USA in a safe and environmentally responsible manner,” Barbee said in an e-mail to Bloomberg BNA. “We recognize the serious nature of the derailment near Mosier, and will be examining the results of the investigation, once complete, to determine any lessons learned that can be applied to enhance the safety of transporting crude oil by rail.”
Congressional Action Said Unlikely
Analysts, such as Fred Millar, an independent rail safety consultant, said the accident in Mosier is unlikely to spur a gridlocked Congress to act.
“I don't think it's enough. What we've seen is we've had a couple of dozen major accidents and fireballs all over the continent and the legislation that has come out has been very marginal improvements,” Millar said in an interview. “We don't have a pile of bodies in Mosier. We have a damn lucky close call.”

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Senate Passes Pipeline Safety Bill, Sends It to Obama

Jun 14, 2016 | BNA Daily Environment Report

By Ari Natter

Legislation that would give the Pipeline and Hazardous Materials Safety Administration emergency authority in the event of an oil spill or other accident is headed to President Barack Obama's desk for signature after the Senate voted to approve it by voice vote June 13.
In addition to giving the Transportation Department agency new emergency powers, the SAFE PIPES Act (S. 2276) would reauthorize the Pipeline and Hazardous Materials Safety Administration through fiscal year 2019.
The bill also sets new federal minimum safety standards for underground natural gas storage facilities, increases inspection requirements for certain underwater oil pipelines and ensures that the agency completes unfinished rulemakings required in the 2011 reauthorization legislation.
The bill, which was pre-negotiated between the House and Senate committees of jurisdiction, was passed by the House in a voice vote June 8 with the support of groups representing pipeline operators such as Dominion Transmission and Cheniere Energy.
“We look forward to the president making this important bill law as soon as possible,” the Interstate Natural Gas Association of America said in a statement.
Obama is expected to sign the measure into law.

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Senate Sends Pipeline Safety Bill to Obama

Jun 13, 2016 | The Hill - E2 Wire

By Devin Henry -

The Senate on Monday unanimously passed a bill to reauthorize the federal pipeline safety oversight board, sending the measure to President Obama for his signature.
The bill extends the the Pipeline and Hazardous Materials Safety Administration (PHMSA). It also makes a handful of changes to PHMSA safety policies, including an effort to provide more insight into the regulatory process and giving the Department of Transportation more power in the event of pipeline emergencies.
It also directs PHMSA to finalize regulations Congress directed it to write in its 2011 reauthorization measure.
The bill was a bipartisan product in both the Senate and the House, which passed it unanimously last week.
Senate sponsors included Sens. Deb Fischer (R-Neb.) and Cory Booker (D-N.J.), among others. In a statement, they and other members hailed the bill as a key step toward improving the safety of the federal pipeline network.
“It will also provide greater resources for state and local pipeline safety officials,” Fischer said.
“The PIPES Act is a major bipartisan achievement, and I appreciate the hard work of my colleagues on both sides of the aisle to move it toward the finish line.”
Booker added: “America’s pipeline infrastructure is an important part of our national energy network. The bipartisan PIPES Act will implement important oversight and accountability measures, encourage the use of new technology, and help ensure pipeline safety in communities in New Jersey and around the country.”
The bill had industry support as well, with the Interstate Natural Gas Association of America saying it “meets several key goals” of the group, which represents the natural gas pipeline industry.
http://thehill.com/policy/energy-environment/283354-senate-sends-pipeline-safety-bill-to-obama

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Senate Sends Pipeline Safety Bill to Obama

Jun 13, 2016 | PoliticoPro - Whiteboard

By Andrew Resteccia

The Senate approved pipeline safety legislation by unanimous consent today, sending the bill to President Barack Obama's desk.
The legislation reauthorizes the Pipeline and Hazardous Materials Safety Administration through fiscal year 2019, and it includes a number of provisions intended to improve the agency's ability to oversee of the country's pipeline infrastructure.
PHMSA has long faced criticism from safety advocates for not meeting a series of congressional safety mandates included in 2011 legislation. The just-passed pipeline safety bill, S. 2276, requires that PHMSA publish regular updates on the status of its delayed regulations.
The legislation is the product of a compromise between two House committees and a version approved earlier this year in the Senate. The House approved the compromise bill by voice vote on June 8.
The bill includes a measure that would give PHMSA new, but limited, authority to impose emergency restrictions on pipeline operators in the event of unsafe conditions. It also mandates that PHMSA set federal minimum standards for underground natural gas storage facilities, a response to the methane leak at Aliso Canyon in California.
Notably, lawmakers removed a provision from Sen. Ed Markey that would have allowed members of Congress to view un-redacted emergency response plans. The change came amid strenuous objections from industry officials, who argued that the full plans could pose a national security threat if they leaked to the public.
Obama is expected to sign the legislation into law.
https://www.politicopro.com/energy/whiteboard/2016/06/senate-sends-pipeline-safety-bill-to-obama-073118

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Environment News

California's Cap-and-Trade Program Faces Daunting Hurdles to Avoid Collapse

Jun 14, 2016 | Los Angeles Times

By Chris Megerian and Ralph Vartabedian

The linchpin of California’s climate change agenda, a program known as cap and trade, has become mired in legal, financial and political troubles that threaten to derail the state’s plans to curb greenhouse gas emissions.
The program has been a symbol of the state’s leadership in the fight against global warming and a key source of funding, most notably for the high-speed rail project connecting San Francisco and Los Angeles.
But the legality of cap and trade is being challenged in court by a business group, and questions are growing about whether state law allows it to operate past 2020. With the end of the legislative session in August, Gov. Jerry Brown, lawmakers and interest groups of all stripes are laying the groundwork for what could become a battle royal over the future of California’s climate change programs.
Unless the state acts, “the whole system could fail,” said Senate leader Kevin de León (D-Los Angeles). “If that happens, we could lose an entire stream of revenue to make our communities more sustainable.”
California received an unwelcome reminder of cap and trade’s precarious situation last month.
The program functions by capping how much greenhouse gas can be emitted into the atmosphere and requiring companies to obtain permits, each allowing 1 metric ton of emissions. Those permits can be purchased at auctions or traded in a market, a system intended to provide a financial incentive for businesses such as power plants, oil refineries and manufacturers to reduce emissions.
By selling the permits, the state generates revenue that can be spent on other initiatives that reduce greenhouse-gas emissions, such as weatherizing homes and helping low-income residents buy cleaner cars. The bullet train is the biggest recipient, getting 25% of the cap-and-trade funds.
During the most recent auction in May, only 11% of the permits offered for sale were purchased.
Analysts suggested that legal uncertainty around cap and trade has damaged faith in a system that, like other markets, requires investors’ confidence to operate smoothly. They also said corporations and speculators are holding more permits than currently needed to cover the amount of greenhouse gas emissions in the state, a supply-and-demand problem that has been growing in every auction over the last year and could continue to choke revenue through 2017.
“The market is clearly in a position of cumulative surplus,” said Harry Horner, an analyst at CaliforniaCarbon.info.
Hanging in the balance is funding for the country’s largest infrastructure project, the $64-billion bullet train championed by Brown. Two years ago, as the governor struggled to get construction rolling, he turned to cap and trade to plug a shortfall in funding.
The latest auction produced just $2.5 million of the $150 million expected for the project and drove the price of each permit to the minimum set by the state.
If revenue remains weak, the bullet train could run out of money needed next year to match a federal grant. The state rail authority is depending on annual cap-and-trade revenue of $500 million to build the first operational segment from San Jose to Shafter, a plan that would probably fall apart if the auctions don’t recover.
Officials at the California Air Resource Board, which runs cap and trade, caution against jumping to conclusions that their system is facing major problems.
“One auction doesn’t tell you a lot about the supply and demand over a longer period of time,” said Michael Gibbs, a senior board official.
But there are still uncertainties in the market because companies were encouraged to build up a surplus of permits and no one is entirely sure how many they will ultimately need.
Frank Wolak, a Stanford University economist who has advised the state, suggested an optimistic scenario — polluters might be cutting their emissions more than was expected and don’t need as many permits.
“To the extent that not all the permits are being sold, that is a success of the program,” he said.
Either way, the result is a financial problem. Although the state could tap a $500-million reserve of cap-and-trade funds to keep bullet train construction rolling, it could be hard for the state to show that future revenue will be stable enough to secure bonds, a key part of the plan for financing high-speed rail.
Meanwhile, clean energy businesses and environmental justice groups are counting on cap and trade to provide financial support for their products and their communities. And advocates want to ensure California maintains its reputation as a global leader on climate change.
“Now is a critical time to steady the ship,” said Alex Jackson, a San Francisco-based lawyer for the Natural Resources Defense Council. “There is no reason to jump ship, but the headwinds around the program show there’s a lot of uncertainty.”
One of the people with the most at stake is Brown, who has made climate change central to his political mission. But he has not outlined how he wants to address the issue.
“We’re looking at it very carefully,” he said recently. “There’s more than one way to handle it.”
Brown and his allies are hemmed in by political challenges on multiple fronts. There are Democrats skeptical of environmental initiatives because of potential costs for low-income communities, Some Republicans are opposed to increasing costs on businesses and oil companies seeking leverage for loosening other pollution regulations.
At this point, cap and trade “does not have enough legislative constituencies to continue,” said Assemblyman Sebastian Ridley-Thomas (D-Los Angeles).
Much of the debate over the program has focused on funding, reflecting the degree to which cap and trade has been viewed as a revenue generator rather than just a series of environmental regulations.
The cap-and-trade program grew out of a measure signed by Gov. Arnold Schwarzenegger in 2006. The law set goals for reducing greenhouse gas emissions to 1990 levels by 2020.
“The name of the game wasn’t to raise revenues,” said Dean Florez, a former Democratic state senator who is now a member of the Air Resources Board.
But since then, lawmakers and the governor have relied on the program to pay for a broad swath of initiatives, increasing their reliance on the money. Even Republicans who oppose cap and trade have suggested using the funding to repair dilapidated roads.
That revenue is what’s facing a legal assault from the California Chamber of Commerce. The organization filed a lawsuit nearly four years ago arguing that cap and trade was unconstitutional because it functions like a tax, and the law was not passed by a two-thirds majority in the Legislature needed to approve taxes.
State officials have rejected that argument, saying the program falls within their regulatory power. But the lawsuit received new attention this spring when an appeals court issued a series of pointed questions that led some analysts to suggest they're preparing to rule against the state.
That would be a blow to climate efforts. Officials have urged other governments to join the market, and the program has been closely studied by Chinese leaders who are launching their own effort.
“If we cease to have [cap and trade], that’s going to send a very loud message to the rest of the world and one we may not want to send,” said Michael Wara, a Stanford law professor.
State Sen. Fran Pavley (D-Agoura Hills), who wrote the 2006 law, said she expected cap and trade to survive a legal challenge, like so many other environmental programs before it.
“Every one of these policies have been sued along the way,” she said. “None of them have been successful.”
But there’s also no consensus on whether a new law is needed to extend cap and trade past 2020. The Air Resources Board said it had the authority to keep going, but the legislative counsel’s office disagrees.
Pavley wants to see a new law passed to make it clear that lawmakers stand behind cap and trade and the state’s environmental goals, and she has started having conversations about pushing the issue before the end of the legislative session in August.
But to protect the program against legal challenges like the one it’s facing now, lawmakers may need to extend it with a two-thirds vote. Hitting that threshold would require Republican help, not to mention support from business-friendly Democrats.
Getting there would probably require trade-offs — ones that environmentalists don’t want to make.
Oil companies and their allies are angling to use the debate around cap and trade to dispense with a different regulation known as the low-carbon fuel standard, which requires the industry to produce cleaner gasoline.
“This issue opens up a door to try and have those discussions,” said Rob Lapsley, president of the California Business Roundtable, which represents the state’s largest corporations.
If concerns tied to cap and trade continue to snowball, lawmakers could find themselves considering a massive piece of legislation to address all of them at the end of the session.
“That’s where the magicians come out and wave their wands,” said state Sen. Bob Huff (R-San Dimas).
http://www.latimes.com/politics/la-pol-sac-climate-change-challenges-20160614-snap-story.html

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