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Chemical Management News

(ACC Mentioned) President Signs TSCA Reform Bill Into Law
Jun 23, 2016 | BNA Daily Environment Report
By Pat Rizzuto

Public health and the economy will be protected through legislation to revamp the Toxic Substances Control Act, President Barack Obama said June 22 as he signed the Frank R. Lautenberg Chemical Safety Act for the 21st Century into law.
(ACC Mentioned) It’s ‘Wait And See’ If New Federal Chemical Safety Law Will Impact State Regulations
Jun 23, 2016 | New England Public Radio
By Jill Kaufman

President Obama just signed into law a new and long awaited Toxic Substances Control Act (TSCA).
(ACC Mentioned) President Obama Signs the Lautenberg Chemical Safety Act, Creating a Path for an Asbestos Ban
Jun 22, 2016 | Mesothelioma Cancer Alliance Blog
By Staff

This morning, President Obama signed the historic Frank R. Lautenberg Chemical Safety for the 21st Century Act, potentially creating a path to a full ban on asbestos – and other toxic chemicals – in the United States.
(ACC Mentioned) Obama Highlights SC Johnson at Chemicals-Bill Signing
Jun 23, 2016 | The Journal Times
By Michael Burke

President Barack Obama mentioned SC Johnson by name Wednesday during the bill-signing ceremony of legislation that reforms the Toxic Substances Control Act.
New Chemicals Process Under Reformed TSCA Remains 'Unclear'
Jun 23, 2016 | Chemical Watch
By Sylvia Palmer

The US EPA’s process for chemical premanufacture notices (PMNs) will see immediate changes, now that TSCA reform has been signed into law.
EPA Must Adjust to New Toxics Law, Former Officials Say
Jun 23, 2016 | BNA Daily Environment Report
By Steve Gibb

The Environmental Protection Agency will need to adjust organizationally to handle the “major expectations” new chemical legislation creates for reducing the risks posed by industrial chemicals, a former agency official said.
US EPA to Host Webinar on New TSCA Law
Jun 23, 2016 | Chemical Watch

The US EPA will be holding a webinar on 30 June to provide an overview of the Frank R Lautenberg Chemical Safety for the 21st Century Act. The bill reforms TSCA for the first time in 40 years, and wassigned into law on 22 June.
The Inside Story of Congress' Battle for Chemical Reform
Jun 23, 2016 | BNA Daily Environment Report
By Anthony Adragna

Hopes for reforming U.S. chemical law got a much needed boost in January 2015 when three key senators huddled just off the Senate floor in hopes of rescuing a legislative push that had been damaged just months earlier with the release of confidential negotiating documents.
What the New Chemical Safety Law Means for Business
Jun 22, 2016 | GreenBiz
By Barbara Grady

It’s heralded as the first significant environmental legislation to come out of Congress in the last quarter century, a rare bipartisan accomplishment that will protect Americans from toxins.
Owens Says TSCA Law Bolsters EPA's Regulation Of Existing Chemicals
Jun 22, 2016 | Inside EPA
By Bridget DiCosmo

Former EPA toxics chief Steve Owens says the Toxic Substances Control Act (TSCA) overhaul law will give a major boost to the agency's authority to regulate chemicals already in the marketplace, overcoming a decades-old bar to addressing such chemicals that was underscored by EPA's failure to regulate the carcinogen asbestos.
Survivor’s Hope Becomes Law: Cancer Clusters Will be Tracked
Jun 22, 2016 | The Sacramento Bee
By Rob Hotakanein

President Barack Obama signed “Trevor’s Law” on Wednesday, legislation named after a Boise man that will require the federal government to document and track cancer clusters around the nation.
President Signs Final TSCA Reform Bill
Jun 22, 2016 | Safer Chemicals, Healthy Families
By Andy Igrejas

This morning, President Obama will sign H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, into law. The legislation to reform the 1976 Toxic Substances Control Act (TSCA) passed the Senate earlier this month.
What An Honor
Jun 22, 2016 | Environmental Defense Fund
By Richard Denison

After 30 years in Washington, maybe I should be more jaded, but today was a big day.

Energy News

EPA Should Prioritize State Compliance Funding, Speakers Say
Jun 23, 2016 | BNA Daily Environment Report
By Brian Dabbs

The Environmental Protection Agency should prioritize increased state compliance funding over outreach to non-governmental organizations, a local chemical representative and Louisiana regulator told a conference in New Orleans June 21.
EPA Chief Tangles with GOP on Regulations
Jun 22, 2016 | The Hill
By Devin Henry

The top Republican on the House Science Committee sparred with the head of the Environmental Protection Agency (EPA) on Wednesday, criticizing the EPA's scientific work and accusing it of being “an agency in pursuit of a purely political agenda
No Breakthrough for Energy Bill Conference After Meeting
Jun 23, 2016 | BNA Daily Environment Report
By Ari Natter

The primary authors of House and Senate energy legislation emerged from a meeting June 22 without a breakthrough on a path forward for their two bills as time runs short to hold a conference to work out differences.
Environmental Groups Unite to Oppose Energy Bill
Jun 23, 2016 | The Hill
By Devin Henry

Nearly two dozen environmental groups on Wednesday urged senators not to work with the House on an energy policy reform bill this session.
Cantwell Says Pre-Conference Energy Talks to Continue, But No Vote on the Horizon
Jun 22, 2016 | PoliticoPro - Whiteboard
By Nick Juliano

Sen. Maria Cantwell said lawmakers would keep talking privately about how to reconcile House- and Senate-passed energy bills after a closed-door meeting of principle negotiators this morning produced “a lot of good conversation” but no major breakthroughs.
Obama’s Fracking Comeuppance
Jun 22, 2016 | The Wall Street Journal
By The Editorial Board

Another day, another judicial rebuke to President Obama’s contempt for the rule of law. On Wednesday a federal judge struck down an oil and gas drilling rule imposed with no statutory authority.
Federal Court Strikes Down BLM Fracking Regulations
Jun 23, 2016 | BNA Daily Environment Report
By Alan Kovski

A federal court in Wyoming struck down Bureau of Land Management regulations on hydraulic fracturing on federal and Indian lands.
District Court Voids Obama Administration Fracking Regulations
Jun 22, 2016 | The Washington Post
By Jonathan H. Adler

On Tuesday, a federal district court in Wyoming invalidated Interior Department regulations limiting hydraulic fracturing (a.k.a. “fracking” or “fracing”) on federal lands.
Federal District Judge Halts BLM Fracking Rule
Jun 22, 2016 | Fuel Fix
By Victor Flatt

Today a Wyoming Federal District Judge halted the BLM’s proposed rule governing fracking on federal lands (including Indian lands).
Professor Inadvertently Helped Sink Fracking Rule
Jun 22, 2016 | E&E News PM
By Robin Bravender

...The Florida State University law professor, who specializes in energy and environmental law, was dismayed when her 2008 law review article was cited by opponents of an Obama administration hydraulic fracturing rule in their bid to freeze the rule.
EPA Boosts Estimate of Benefits From Oil, Gas Rule
Jun 23, 2016 | BNA Daily Environment Report
By Brian Dabbs

The Environmental Protection Agency has boosted by $10 million the estimate of the benefits provided by a rule limiting emissions of methane and other pollutants from new and modified oil and gas wells, an agency official said.
States Lead on Regulating Gas Flaring, Venting, Leaks
Jun 23, 2016 | BNA Daily Environment Report
By Tripp Baltz

In the summer of 2014, flare stacks with billowing, fiery plumes rose out of the ground above the Bakken Formation in western North Dakota like gigantic metal candles, burning unwanted methane gas at a rate of 375 million cubic feet a day—enough to meet the average daily needs of nearly 2 million homes.
Oil Industry Pleads for Arctic Drilling Option
Jun 23, 2016 | The Hill - E2 Wire
By Timothy Cama

The oil industry is pleading with the Obama administration not to completely take Arctic offshore drilling off the table for the next five years.

Chemical Security News

Lawmakers Propose $11 Million for Chemical Safety Board
Jun 23, 2016 | BNA Daily Environment Report

The Chemical Safety and Hazard Investigation Board should receive $11 million for fiscal year 2017, Senate and House appropriations committees recommended (H.R. 2822, S. 1645).

Transportation News

Crude-by-Rail Advance Notice Coming in Washington
Jun 23, 2016 | BNA Daily Environment Report
By Paul Shukovsky

A draft crude-by-rail advance-notification rule in Washington hit the limits of what a state can do in the face of federal preemption of state regulation, an oil spill program manager said June 21 at a Pacific States/British Columbia Oil Spill Task Force meeting.
Oregon Senators Call for FRA Emergency Order to Stop Oil Train Traffic
Jun 22, 2016 | PoliticoPro - Whiteboard
By Jennifer Scholtes

Oregon's senators are again calling on the FRA to halt oil train traffic through the Columbia River Gorge until the agency determines the cause of this month's tanker crash.
Obama Signs Pipeline Safety Bill Into Law
Jun 23, 2016 | BNA Daily Environment Report

President Barack Obama today signed into law legislation that would reauthorize the Pipeline and Hazardous Materials Safety Administration through fiscal year 2019, as well as give the Transportation Department authority to issue emergency orders in the event of a spill or other accident.
Obama Signs Safety Legislation
Jun 22, 2016 | E&E News PM
By Hannah Hess

President Obama signed into law today a bill to extend the federal pipeline safety program within the Pipeline and Hazardous Materials Safety Administration through fiscal 2019.

Environment News

EPA Agrees to Deadlines for Action on State Ozone Plans
Jun 23, 2016 | BNA Daily Environment Report
By Andrew Childers

The Environmental Protection Agency has agreed to a series of deadlines to take action on plans for six states to implement the “good neighbor” provisions of federal air quality standards for ozone.
GOP Critics Slam McCarthy on 'Suspect Science' Behind Rules
Jun 23, 2016 | E&E Daily
By Amanda Reilly

House Republican critics of U.S. EPA yesterday used a hearing in the Science, Space and Technology Committee to pepper Administrator Gina McCarthy with a barrage of questions on agency regulations.
NAFTA Environmental Text Differs from TPP Approach
Jun 23, 2016 | BNA Daily Environment Report
By Emily Pickrell

As the debate continues over the environmental protections the Trans-Pacific Partnership will provide, some of the most relevant information may come from the results produced by its predecessor, the North America Free Trade Agreement.
EPA Finalizes Changes to Incinerator Regs
Jun 22, 2016 | E&E News PM
By Sean Reilly

U.S. EPA is moving ahead on a final roster of changes to its emissions standards for commercial and industrial solid waste incinerators.

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

Chemical Management News

(ACC Mentioned) President Signs TSCA Reform Bill Into Law

Jun 23, 2016 | BNA Daily Environment Report

By Pat Rizzuto

Public health and the economy will be protected through legislation to revamp the Toxic Substances Control Act, President Barack Obama said June 22 as he signed the Frank R. Lautenberg Chemical Safety Act for the 21st Century into law.
“For the first time in our history we'll be able to regulate chemicals effectively,” Obama said.

The Lautenberg Act amends the toxic substances law currently on the books, which President Gerald Ford (R) signed into law in 1976.
“Even with the best of intentions, the law didn't quite work the way it should have in practice,”Obama said.
“The law placed demands on the EPA that were so tough, so onerous that it became virtually impossible to actually see if those chemicals were harming anybody,” he said. “The system was so complex, it was so burdensome that our country hasn't even been able to uphold a ban on asbestos—a known carcinogen that kills as many as 10,000 Americans every year. I think a lot of Americans would be shocked by all that.”
The Toxic Substances Control Act, as revised by the Lautenberg Act, will change that situation so “we can regulate toxic chemicals in a way that's both good for our families and ultimately good for business and our economy,” the president said. The signing follows years of challenging congressional negotiations leading up to the bill's passage (See related story).
Attendees at the signing included Environmental Protection Agency Administrator Gina McCarthy, Jim Jones, assistant administrator for the Office of Chemical Safety and Pollution Prevention, and Wendy Cleland-Hamnett, director for the EPA's Office of Pollution Prevention and Toxics.
TSCA 101:
A primer on chemical reform.
A printable one-page explainer from Bloomberg BNA on chemical management reform is available athttp://src.bna.com/fQi.
EPA Ready to Work
“At EPA, we're excited to get to work putting it into action,” McCarthy said in a blog the agency posted.
Beth Bosley, a chemist who owns a small chemical manufacturing company called Boron Specialties, attended the signing and told Bloomberg BNA the revised TSCA will be good for small businesses.
“It gives EPA the strength and mandate it needs to go after existing chemicals,” while letting chemical manufacturers continue to innovate, Bosley said.
ACC Recalls Challenge
In 2009, the American Chemistry Council , the EPA, states and environmental organizations each issued separate principles for TSCA reform. At the time, Cal Dooley, president and CEO of the trade association the American Chemistry Council , said the principles were all consistent “at the 10,000-foot” level, but reaching agreement on the details would be a challenge.
Asked how difficult it was to “land the plane” and get from the 10,000-foot level to the nitty gritty details that make up the law, Dooley told Bloomberg BNA that it was relatively easy to reach 500 feet.
But the negotiations that led up to the final passage of the bill were tough and took a lot of commitment from all sides, he said.
The work was justified, Dooley said in a statement. Under the new law, he said, “Chemical evaluation and regulation will meet new 21st century standards, which will improve the lives of American families, support American manufacturing and bolster U.S. economic growth.”
Denison: ‘Let EPA Make Decisions.’
Richard Denison, lead senior scientist for the Environmental Defense Fund, said, “I hope all parties will give this new law every chance to work,” Denison said.
It's a “tall order” to think that companies or other interested parties with parochial interests in particular outcomes of EPA decisions would not fight in court agency decisions with which they disagree, he said.
Yet, Denison said he is cautiously optimistic that industry trade associations will keep a stronger federal EPA in mind so chemicals and the products they're in are regulated consistently and by a central authority.
All sides will get a chance to weigh in as the EPA implements the new law, but “let EPA make decisions,” Denison said.
California's Attorney General Kamala D. Harris praised in a statement “Congress’ bipartisan effort to update and reform the long-standing Toxic Substances Control Act,” and thanked Sen. Barbara Boxer (D-Calif.) for her advocacy to protect the state's public health and environment.
The final law scaled back many provisions preempting state control over chemicals, Harris said.
The Environmental Council of States disseminated a summary of key aspects of the law that was largely consistent with the points Harris made.
Wary of Promised Improvements
Yet as lawyers, consultants, former EPA officials and others spend more time reading the new law, Bloomberg BNA is hearing many questions arise about EPA's capacity to implement its new requirements (See related story).
Some groups are not convinced the reforms will be as successful as the law's backers hope.
In a statement, Safer States, a network of environmental health coalitions around the country, said: “It would be great if, with the swipe of a pen, our president could reverse decades of flawed chemical management and put national health protections in place.
“But it will take time and resources to set the newly reformed law in motion and to ensure that gaps, flaws and weaknesses are addressed. The bottom line here: Our nation will continue to depend upon state-grown experts who have been effectively driving chemical stewardship for decades,” Safer States said.
The Environmental Working Group issued a statement from Scott Faber, vice president for government affairs: “While this legislation falls short of what's needed, we're hopeful that President Obama will give the EPA the direction and resources needed to quickly review, regulate and, if needed, ban the most dangerous chemicals in commerce. Unless EPA acts to quickly remove chemicals linked to cancer from everyday products, the burden will continue to fall on states and consumers.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434302&vname=dennotallissues&wsn=495630500&searchid=27861210&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0

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(ACC Mentioned) It’s ‘Wait And See’ If New Federal Chemical Safety Law Will Impact State Regulations

Jun 23, 2016 | New England Public Radio

By Jill Kaufman

President Obama just signed into law a new and long awaited Toxic Substances Control Act (TSCA). Officially called the Frank R. Lautenberg Chemical Safety for the 21st Century Act, it’s expected to radically change how the federal government oversees thousands of chemicals used in products and in the work place. (It was named after the New Jersey Senator who died in 2013. His main priority in his final term was a bill he coauthored to overhaul chemical safety laws.)
For decades, lawmakers, the chemical industry, and environmental advocates agreed — the law was outdated and ineffective. At the signing ceremony Wednesday, the president explained just how ineffective.
“In 1976, some 62,000 chemicals were already on the market but the law placed demands on the EPA that were so tough, so onerous, that it became virtually impossible to see if those chemicals were harming anybody,” Obama said. “In fact, out of those original 62,000 chemicals, only five have been banned. Five. And only a tiny percentage have even been reviewed for health and safety.”
‘Need To Fully Protect’ All Interests
The new TSCA significantly expands the number of chemicals subject to federal regulation. Republican Sen. David Vitter from Louisiana is one of the bill’s key writers. He says TSCA’s overhaul is long overdue.
“We needed to fully protect public health and safety,” Vitter told fellow members of the U.S. Senate a few weeks ago. “We also needed to ensure that American companies…do not get put behind by a regulatory system which is overly burdensome and unworkable.”
Democrat Barbara Boxer from California spoke about the bill’s major sticking point, which she and other lawmakers say they would have written differently.
“In the final bill,” Boxer said, “we were able to make important exceptions to the preemption provisions.”
Preemption provisions mean that going forward, the EPA can potentially override state chemical safety regulations. But Boxer said, states still have time.
“When EPA announces the chemicals they are studying, the states still have up to a year and a half to take action on these particular chemicals to avoid preemption until the EPA takes final action,” Boxer said.
Her advice to states? Get going on regulations, as they’ve been doing for years. One example: In 1998, Vermont lawmakers forced industry to clearly label products sold in the state that were made with with mercury — things like light bulbs and thermostats. Connecticut, Maine, Massachusetts and Rhode Island followed suit. So did Minnesota, New York, Louisiana and Washington. Several states this year are debating proposals to ban BPA, flame retardants and formaldehyde.
States Expected To Race On Chemical Safety Regulations
The states’ concern with the new law? If the EPA chooses a chemical for safety review, before a state does, the states cannot do their own review of the chemical, for a period of time, or maybe at all. An EPA assessment could take up to three years. The chemical during that time is largely unregulated.
Mike Belliveau from the Environmental Health Strategy Centers, who at one point led Maine’s mercury reduction campaign, says the concern is, “the federal law takes the truly unprecedented step of prohibiting states from taking action on dangerous chemicals.”
Belliveau says there’s absolutely no policy rationale for not allowing states to remain regulators.
“It was simply a concession to the chemical industry, which is trying to chill state leadership in moving the market to safer chemicals,” Belliveau says.
It’s not all bad, he adds. For one thing, the EPA will have increased oversight of the chemical industry.
Anne Kolton from The American Chemistry Council says the EPA should make the final call on safety regulations. There needs to be a definitive decision maker, she says, “in order to protect the free flow of interstate commerce and ensure there are clear and understandable messages to both consumers and the marketplace.”
Kolton also says in many cases, “states don’t have the resources or expertise to conduct risk evaluations and make truly evidence-based, objective decisions about the safety of a chemical.”
Attorneys General Push Back, Politely At First
While Congress debated the bill, states have pushed back. Massachusetts Attorney General Maura Healey is one of a dozen attorneys general who earlier this year jointly wrote to Congress and told them states need to be able to make their own best decisions about chemical regulation.
After President Obama signed the bill, Healey said in a press release, the attorneys general remain committed to “preserving the authority of states and local government.”
Also in this coalition, Vermont Attorney General William Sorrell. While hosting a National Association of Attorneys General conference in Burlington this week, he said concessions were made in the bill. In end, states didn’t get a full loaf, but they got more than half.
“We raised about seven different issues with the bill back in January. Most of those were addressed,” Sorrell said. He then added, “Not all.”
What wasn’t addressed? It’s still unclear what happens in the end if the EPA sets a safety standard weaker than a state’s, and whether states would be granted waivers and how they would qualify.
Like any major piece of legislation, the proof will be in its implementation. Some say this is a comprised bill. Some say the new TSCA will only be as good as the EPA itself, and that will depend on funding.
In a recent blog post, one notable environmental group wrote a memo to state attorneys general, legislatures and governors. The tone openly tapped into the popular show Game of Thrones.
“The Night’s Watch is an underfunded and understaffed cadre of public employees guarding an aging infrastructure against an ancient evil,” they wrote.
“The fact is that you,” addressing state leadership, “still have a critical job to do. In the parlance of the show, your watch has not ended.”
http://nepr.net/news/2016/06/23/its-wait-and-see-if-new-federal-chemical-safety-law-will-impact-state-regulations/

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(ACC Mentioned) President Obama Signs the Lautenberg Chemical Safety Act, Creating a Path for an Asbestos Ban

Jun 22, 2016 | Mesothelioma Cancer Alliance Blog

By Staff

This morning, President Obama signed the historic Frank R. Lautenberg Chemical Safety for the 21st Century Act, potentially creating a path to a full ban on asbestos – and other toxic chemicals – in the United States.
The act passed the House of Representativesnear the end of May and then passed in the Senate earlier this month, despite a delay due to objections raised Kentucky Republican Senator Rand Paul. Once the Senate passage was confirmed, however, it was only a matter of time until the bill would become law. The President had previously indicated that he would sign the law, a position reiterated by Press Secretary Josh Earnest during a press briefing.
“Look, we believe that this is a rare moment of bipartisanship in Congress,” Earnest stated on June 8, “and we are pleased to see that the Environmental Protection Agency has been given additional authority to ensure that we can keep our families safe. And preventing these kinds of toxic chemicals from being used in a harmful way in consumer products will make our homes and communities safer. And we obviously give Democrats and Republicans in Congress credit for working together to approve this bill. The President will sign it, and we'll let you know when he has.”
Today, that signing occurred.Key Supporters Invited to Signing Ceremony
A number of supporters of the bill were invited to the signing ceremony, which occurred at 11:15 this morning in the South Court Auditorium. These included Bonnie Lautenberg – widow of the bill’s namesake, former Senator Frank R. Lautenberg – as well as many members of Congress who sponsored or supported the bill, regulators such as industry representatives from the American Chemical Council and SC Johnson, and organizations like the March of Dimes and Environmental Defense Fund that pushed for the legislation to be passed.
One of the groups invited was the Asbestos Disease Awareness Organization (ADAO). The ADAO, an organization that promotes awareness about the dangers of asbestos, played a critical role in making sure that asbestos was one of the substances that could be reviewed by the Environmental Protection Agency (EPA) under the new policies and procedures created by the law.
“Receiving this invitation is proof that the voices of asbestos victims were heard in the drafting of this momentous legislation,” wrote ADAO President and Co-Founder Linda Reinstein in a post on the organization’s blog, “and it is my great honor to attend this momentous occasion on behalf of the ADAO community.”
In her blog post, Reinstein reiterated that the Lautenberg Act is not perfect, saying, “I call it a compromise bill – but it removes some of the major obstacles that weakened the EPA’s power to ban asbestos. It is a step in the right direction, and ADAO will continue to be a stakeholder at the table pushing for an expedited full ban on asbestos.”
However, Reinstein recognized the momentousness of this opportunity to reflect on the accomplishments the ADAO and other supporters of Lautenberg Act have achieved so far. “This victory truly belongs to all of us, and from the bottom of my heart, thank you for the hard work and dedication you showed in the process of bringing about this historic policy reform.”Lautenberg Act Another Step in Protecting Our People and Environment
During his speech at the signing, President Obama reviewed the legislative history of laws that attempted to regulate toxic chemicals, noting early attempts that helped clean up waterways in his home city of Chicago, leading up to the Toxic Substances Control Act (TSCA), signed in the 1970s. The signing of the Lautenberg Act also marked a historic moment in environmental law, as the last major environmental protection law was signed twenty years ago.
“For the first time in 20 years, we’re updating a national environmental statute." —@POTUS on #ChemicalSafety reform— The White House (@WhiteHouse) June 22, 2016
However, the President focused on the limitations of these previous laws. The Lautenberg Act, he said, would overcome many of the problems of formerly passed legislation, allowing the EPA to act on bans that previously were unable to be passed.
However, the President focused on the limitations of these previous laws. “Even with the best of intentions, the [TSCA] did not quite work the way that it should have in practice,” the President acknowledged, noting that the restrictions placed on the EPA were so onerous that it became virtually impossible to understand whether most chemicals were harmful.
“The system was so complex, it was so burdensome, that our country hasn’t even been able to uphold a ban on asbestos, a known carcinogen that kills as many as 10,000 Americans every year,” the President said, calling out asbestos specifically. “I think a lot of Americans would be shocked by that.
The Lautenberg Act, he said, would overcome many of the problems of formerly passed legislation, allowing the EPA to act on bans that previously were unable to be passed. “For the first time in our history,” the President stated, “we’ll actually be able to regulate chemicals effectively.”
According to the President, the new law “will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design. It will do away with an outdated bureaucratic formula to evaluate safety, and instead will focus solely on the risks to our health.” It will also grant EPA scientists and researchers funding to accomplish the ultimate goal of keeping everyone safe.
“This is a good law, an important law,” President Obama concluded.
After his speech, the President signed the law to the applause of all who attended.

A Rare Moment of Bipartisanship
During his speech, President Obama praised the cooperation between political parties, industry groups, and organizations who all came together to create this complex bill.
The Lautenberg Act, said the President, is being passed “in the same overwhelmingly bipartisan fashion as happened with those pillars of legislation that protect our air, and our water, and our wildlife – the initiatives where the Democrats and the Republicans first came together to pass [environmental] laws more than four decades ago.”
The President added that such bipartisanship is rare these days, a situation that gives even greater weight to the passage of the Lautenberg Chemical Safety Act.
Whether this bipartisan attitude towards keeping everybody safe from toxic substances continues remains to be seen. There is still a long ways to go before a full ban on asbestos and other dangerous materials could be implemented, and there may be many years of rulemaking, policy drafting, and even court hearings that could delay and interrupt the process.
For the time being, though, hopes are high.
http://www.mesothelioma.com/blog/authors/staff/president-obama-signs-the-lautenberg-chemical-safety-act-creating-a-path-for-an-asbestos-ban.htm

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(ACC Mentioned) Obama Highlights SC Johnson at Chemicals-Bill Signing

Jun 23, 2016 | The Journal Times

By Michael Burke

President Barack Obama mentioned SC Johnson by name Wednesday during the bill-signing ceremony of legislation that reforms the Toxic Substances Control Act.
Earlier this month SCJ applauded final passage of the TSCA by the Senate, saying the bill provides “critical reforms” to the act which had not been amended since its passage in 1976, “despite significant advances in science and chemical assessments.”
The act is also known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
The legislative changes were approved by the House of Representatives on May 24 by a 403-12 vote, and Obama signed the measure Wednesday at the White House.
SCJ provided the president’s statement: “I’m absolutely confident that we can regulate toxic chemicals in a way that’s both good for our families and, ultimately, good for business and our economy, because nobody can innovate better than folks here in this country and our businesses.
“We’ve got a lot of industry leaders here today who’ve pushed hard for this law, and I want to give them credit, from the American Chemi(stry) Council to SC Johnson, because they know that it gives them the certainty they need to keep out-innovating and out-competing companies from other parts of the world,” Obama said.
SCJ said in a June 7 news release it has long championed reform of the TSCA.
“This legislation is a win for families and I am thrilled to see it finally approved,” SCJ Chairman and CEO Fisk Johnson stated. “This modernization of TSCA raises the standard for all companies and can help provide the public with confidence that the products they use in their homes are safe for their intended uses.”The details
SCJ said different parts of the TSCA have different implementation dates.
According to SCJ, as part of the TSCA reform, for the first time the U.S. Environmental Protection Agency will be required to systematically prioritize all chemicals currently in commerce for safety evaluations. Other key reforms to this legislation include:
Requiring the EPA to make an affirmative safety determination before a new chemical can be brought to market.
Promoting greater transparency in the TSCA program by reforming the way in which confidential business information is protected and shared.
Promoting application of a uniform federal chemical management program through limited and reasonable pre-emption of state regulatory authority.
Providing EPA with adequate resources, through fees on industry, to help defray the costs of administering a revamped TSCA program.

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New Chemicals Process Under Reformed TSCA Remains 'Unclear'

Jun 23, 2016 | Chemical Watch

By Sylvia Palmer

The US EPA’s process for chemical premanufacture notices (PMNs) will see immediate changes, now that TSCA reform has been signed into law.
Industry should prepare to be "vigilant", says Mark Duvall, a principal at the law firm Beveridge & Diamond, and "take advantage of opportunities to present views to the EPA".
The law's new requirement to make an "affirmative finding of safety", before allowing a new substance on the market, is now in effect.
The EPA has 90 days to make one of four determinations, regarding whether a new chemical or significant new use:presents an unreasonable risk;may present an unreasonable risk;will be produced, and is expected to enter the environment, in substantial quantities, or there may be substantial human exposure; andis not likely to present unreasonable risk.
"It’s that last determination [not likely to present unreasonable risk] companies want," said Mr Duvall. The EPA must make a determination and publicise it, he says, and that is a "good reason for companies to consider developing information to help EPA get to that desired conclusion".
Dan Newton, senior manager of government relations at the US Society of Chemical Manufacturers and Affiliates, said: "It is unclear how the new requirements will impact our members." There are concerns that submissions could take longer to review and cost more.
It would be a shame if the "nearly universally praised" PMN process "got hamstrung" under the new law, he added.
In a document released just after the law came into effect, the EPA said the 90-day review period for PMNs submitted prior to enactment has now been reset. The agency, however, "will make every effort to complete its review and make a determination, within the remaining time under the original 90-day review period".Review timing
According to Mr Newton, the EPA, under the old TSCA, could make a preliminary PMN decision within a month. But the mandate that the agency make a "somewhat more definitive finding" and post it publicly under reformed TSCA, he said, could make the EPA a "little more precautionary".
Under the new law, the EPA has 90 days to reach a determination on a chemical. But Mr Duvall said the agency may well exceed this timeline – and "just keep on going". The submitter would get a fee refund –as long as the delay is not the result of insufficient information on their part.
Mr Duvall added that the agency may request more data – significant in some cases – to make reasoned valuations. It is likely to use conservative models more, which could result in more regulation. But the agency, he said, "will likely put additional resources into their process because they’re going on record now".Fees may change
Mr Duvall told Chemical Watch the "ceiling" on the existing PMN filing fee "goes away under amended TSCA".
The agency may increase it, he said, but likely through a rulemaking.
The agency has a "financial incentive for proposing a fee schedule sooner rather than later", he said. And the EPA "won’t get those fees until it completes rulemaking, so interested stakeholders should speak up and make their views known".More Snurs likely
Mr Duvall anticipates the EPA will "continue to crank out" significant new use rules (Snurs), including the more "controversial" use in their application to articles.
Such a provision, under the new law, requires the EPA to make an affirmative finding about the potential for exposure to a Snur chemical through articles. This finding should justify an agency decision to propose a Snur applicable to them.
"What this does is make such affirmative findings by the agency judicially reviewable, along with the rest of the final Snur," said Mr Duvall. "This will require some thinking" to articulate such, he says.
"There’s never been judicial review of Snurs, but there’s always a first time," he added.
https://chemicalwatch.com/48213/new-chemicals-process-under-reformed-tsca-remains-unclear

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EPA Must Adjust to New Toxics Law, Former Officials Say

Jun 23, 2016 | BNA Daily Environment Report

By Steve Gibb

The Environmental Protection Agency will need to adjust organizationally to handle the “major expectations” new chemical legislation creates for reducing the risks posed by industrial chemicals, a former agency official said.
Jim Aidala, former head of the EPA Office of Pollution Prevention and Toxics, told Bloomberg BNA the first few months of implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act will be “chaotic in the happy sense” for the EPA.
“They will need to triage current chemicals in review and write rules to be able to accept industry fees before they can collect them and allocate them for use in hiring and for the program,” said Aidala, who is now a senior consultant at Bergeson & Campbell LLC.
President Barack Obama June 22 signed the Lautenberg bill, which overhauls the Toxic Substances Control Act for the first time since its passage in 1976. Now, the EPA toxics office can formally begin implementing the new law.
Personnel Scenarios
The new law allows the EPA to collect up to $25 million in fees for chemical risk reviews from industry producers and processors. Congress has provided no additional appropriations to support the EPA in implementing the new law this year. But the EPA's administrator may re-program existing EPA resources to address the new responsibilities contained in the law.
Aidala speculated that each new full-time employee the program hires will cost about $250,000 a year including salary, benefits and training. He estimated the number of new hires could range from 100 to 200, including the personnel to manage the new staff. Aidala said the agency is likely to double the size of the current TSCA program to match the expectations and obligations the new law creates once industry fees can be accepted.
According to a June 22 EPA statement on the new law, “Prior to proposing a [fee collection] rule, EPA will consult with parties subject to the fees, as required by the act. The agency plans to begin this process in the coming weeks.”
Looking back at the last major environmental statute passed by Congress—the 1996 Food Quality Protection Act—Aidala said EPA enforcement and regional officials will want the toxics office to fund new people to police and implement toxic chemical programs.
“Like we experienced with FQPA, these other programs will have their hands out.”
Uncertainty Over Work Units
But other former high-ranking EPA officials said the research program may take on much of the responsibility.
“I personally wouldn't expect big changes in the organization,” Bill Farland, former EPA senior scientist in the Office of Research and Development, told Bloomberg BNA. “The EPA's National Center for Environmental Assessment has always supported all of the programs and their priorities and I expect they will continue to do that. NCEA has the largest concentration of risk assessors in the agency and probably would be given the work. Because TSCA will still consider all routes of exposure, including disposal, all the programs will benefit from these priority assessments.”
Farland, who is now an environmental sciences professor at Colorado State University, said other programs such as air, water and waste will weigh in on toxics office priorities for selecting and prioritizing chemical risk reviews.
“TSCA priorities will likely be agency priorities, so I don't think the work will reside solely in the Office of Pollution Prevention and Toxics,” Farland said.
Farland also said the agency's Integrated Risk Information System—a compendium of chemical toxicity values—is likely to still be the repository for much of the risk assessment work on industrial chemicals that the toxics office performs.
“The current efforts for IRIS reform will shape how assessments are done under the new law.”
An EPA spokesperson declined to comment on any hiring plans and organizational impacts.

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US EPA to Host Webinar on New TSCA Law

Jun 23, 2016 | Chemical Watch

The US EPA will be holding a webinar on 30 June to provide an overview of the Frank R Lautenberg Chemical Safety for the 21st Century Act. The bill reforms TSCA for the first time in 40 years, and wassigned into law on 22 June.
According to the agency, this webinar is only intended to provide information for those unfamiliar with the new law.
The EPA has also made resources available related to the new law, including a frequently asked questions document and a summary of key changes.
Additional information, including an implementation plan on activities that are required in the first year, will be added "in the coming days", it says.
https://chemicalwatch.com/48230/us-epa-to-host-webinar-on-new-tsca-law

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The Inside Story of Congress' Battle for Chemical Reform

Jun 23, 2016 | BNA Daily Environment Report

By Anthony Adragna

Hopes for reforming U.S. chemical law got a much needed boost in January 2015 when three key senators huddled just off the Senate floor in hopes of rescuing a legislative push that had been damaged just months earlier with the release of confidential negotiating documents.
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), leading the charge to overhaul the Toxic Substances Control Act, sought out the new head of the Senate Environment and Public Works Committee, Sen. James Inhofe (R-Okla.), in hopes of securing his personal buy-in for moving a bill with significant bipartisan support through the Senate.
“Can you imagine having a major environmental bill [passed] under your leadership at the committee?” Udall asked Inhofe, explaining where the bill currently stood.

“We're going to get on top of this,” the Oklahoma Republican replied, promising to throw his weight behind the effort.
“He was a man of his word from then on,” Udall told Bloomberg BNA.
That conversation spurred a committee markup in April 2015, a pivotal moment when the Senate bill gained its 60th pledged supporter in October and passage of a revised version in December. But that's when the unexpectedly difficult task of merging the House and Senate bills began.
Five-Year Plus Process
What ultimately emerged from the more than five-year chemical safety reform push was the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which President Barack Obama signed into law June 22.
Lawmakers, aides and other key players described in interviews with Bloomberg BNA a process fraught with pitfalls, broken promises, compromise and ultimately overwhelming congressional support for passage.
But there is no agreement among the principal players about whether the path to TSCA reform should serve as a blueprint for future energy and environmental legislative efforts or whether “a perfect storm” came together to allow for the first update to the nation's primary chemicals law in 40 years.
“A lot of this was us trying to move them further right than they want to go and them trying to move us further left than we want to go, and can you find that happy medium?” Rep. John Shimkus (R-Ill.), who oversaw House efforts, told reporters. “We were fortunate to do that here. That's not always going to be the case.”
Began in 2011
Earnest efforts at chemical safety reform began in 2011 when Vitter and Lautenberg, then New Jersey's senior senator, began discussions in hopes of crafting a “good, solid, bipartisan bill that we could both support,” according to the Louisiana Republican.
Those talks bore fruit in May 2013 with the introduction of the Chemical Safety Improvement Act of 2013. Supporters were encouraged that the legislation had the pledged support of eight Democrats and eight Republicans spanning the political spectrum. However supporters struggled to advance the bill further because then-chairwoman of the Environment and Public Works Committee, Sen. Barbara Boxer (D-Calif.), vocally opposed the bill.
“I started looking immediately for other Democrats [after Sen. Lautenberg passed away]—literally had conversations about that going to his funeral.”
—Sen. David Vitter (R-La.)
Boxer was “shocked” upon the legislation's introduction and knew nothing of its development, a spokeswoman told Bloomberg BNA. She sought major changes to the bill and refused to vote on it in her committee without them.
Just two weeks after the bill's introduction, Lautenberg, who aides said remained hands-on and highly involved until the very end, passed away. Vitter, anxious to keep up momentum for the bill, quickly sought another Democratic partner to complete the New Jersey Democrat's efforts.
“I started looking immediately for other Democrats—literally had conversations about that going to his funeral in New York,” Vitter, who is retiring after this Congress, told Bloomberg BNA.
That's when Udall stepped up. The senators knew each other through their committee work but had not worked together previously. So, they went to dinner at the Monocle, a well-known restaurant by the Capitol, to get to know each other and discuss priorities for the bill.
That dinner kicked off more than a year of negotiations with various senators, both at the staff and lawmaker level. Talks collapsed in September 2014 and Boxer released confidential documents to the media, though her spokeswoman said she only did so after Vitter promised to do so on his own.
Vitter was incensed after the release, describing it at the time as a “press stunt/temper tantrum,” and saw it as evidence that Boxer was not negotiating in good faith. Observers said he was ready to abandon the push.
“There were plenty of times, literally too many to remember … where we didn't walk away but just sort of turned away and let a couple of weeks pass,” he said.
Road to Mark Up
Supporters returned in January 2015 reinvigorated from Republicans regaining control of the Senate and from the commitment of Inhofe, now chairman of the key environment panel, to mark up the chemicals legislation.
Both Udall and Vitter saw the committee vote as key to show the rest of the Senate that the bill stood a good chance of passage. Changes to the measure ahead of the April markup gained the support of three liberal Democratic senators—Sheldon Whitehouse (R.I.), Jeff Merkley (Ore.) and Cory Booker (N.J.)—and allowed for a 15-5 panel vote in favor of the legislation.
“That showed that we were going to be able to gain the bipartisanship to continue to move,” Udall said.
Supporters worked with senators on an individual basis to garner their support. By October, Sen. Richard Durbin (D-Ill.), the No. 2 Democrat in the Senate, and Sen. Ed Markey (D-Mass.), who earlier sponsored an alternative measure with Boxer, became the 59th and 60th public co-sponsors of the bill.
“It's huge when you get somebody that high up in leadership and somebody with those kinds of environmental credentials on board,” one aide closely involved in negotiations told Bloomberg BNA. “I think that probably increased the inevitability of it a bit” and brought Boxer to the negotiating table in earnest.
Aides believed the bill actually had significantly more support than that, thinking it would get at least 80 to 85 votes if a floor vote occurred.
“This is not the bill she would have written, but it is the best that could be achieved at this time.”
—Spokeswoman for Sen. Barbara Boxer (D-Calif.)
Boxer Negotiated Until End
A spokeswoman for Boxer said the senator worked throughout the process to ensure the final bill is better than current law.
“This is not the bill she would have written, but it is the best that could be achieved at this time,” the spokeswoman told Bloomberg BNA in written responses. “Many people—especially some of the bill's cosponsors—tried to end negotiations prematurely, but thanks to the efforts of Sen. Boxer and hundreds of public health organizations, the bill changed continually from start to finish.
“She has always said that any toxic chemicals reform bill must be better than current law, and the many critical fixes made to the bill during the long and winding legislative road make it better than current law,” the spokeswoman added.
Progress in the negotiations prompted Boxer to back off an earlier pledge to offer “hundreds” of amendments to the Senate bill if it hit the floor and agree to consider the measure in mere hours once on the floor.
That agreement was especially important, because Senate Republican leadership—though supportive of the underlying measure—was unwilling to burn days of precious floor time on its consideration, according to aides.
Supporters could finally see a clear path to Senate passage when a new obstacle “popped up out of nowhere” and threatened to derail the entire thing.
House Takes Narrower Approach
Across the Capitol, House Republicans and Democrats were figuring out their own approach to revamping TSCA, which had gone essentially unchanged since the days of the Ford administration when gasoline cost 57 cents a gallon on average.
Early on, Energy and Commerce Committee Chairman Fred Upton (R-Mich.) had Shimkus, chairman of the relevant subcommittee, take a lead role in getting something done on chemical reform.
Chances on reaching consensus were viewed as somewhat improved in the 114th Congress with Rep. Frank Pallone (D-N.J.), who took over from former Rep. Henry Waxman (D-Calif.) as top Democrat on the panel, and Rep. Paul Tonko (D-N.Y.) leading the Democratic efforts.
“Are you going to try to message something or are you trying to get something signed into law?” Pallone asked Shimkus and Upton at an early meeting, according to several aides. The Republicans answered that they wanted a bipartisan bill and staff began to discuss the scope of the legislation.
Republican and Democratic staff quickly decided they would pursue legislation narrower in scope that nevertheless contained important reform elements. Aides from both parties said there was a deliberate decision to avoid many of the more controversial aspects of reform where both parties were further apart.
“I've never had an experience where members got so involved in the weeds.”
—House Republican aide closely involved in negotiations
“We put together a much narrower package but it included really essential reforms,” a House Energy and Commerce Democratic aide told Bloomberg BNA. “We had created a really good product that skirted a lot of issues that were really sensitive to a lot of groups.”
Unease Before Vote
Then, ahead of a vote in June 2015 on the House bill, known as the TSCA Modernization Act (H.R. 2576), came another curve ball.
Republican leadership wanted to know if a vote on the measure could be held under suspension of the rules, a procedural tactic that speeds consideration of legislation but requires two-thirds of members to approve a bill.
Aides were initially nervous about such an approach. Just weeks earlier, several dozen Tea Party Republicans voted against a noncontroversial bill requiring the Environmental Protection Agency to draw up a science-based plan to tackle algae toxins in drinking water supplies, and the aides feared how the same group would approach a bill granting the agency more regulatory authority.
But several conservative lawmakers on the committee, including House Majority Whip Steve Scalise (R-La.) and Chairman of the House Republican Study Committee Bill Flores (R-Texas), personally worked to get those members on board before the vote, several aides said.
“I've never had an experience where members got so involved in the weeds,” one Republican aide recalled. “They began to learn the issue. They began to ask questions.”
Ultimately, the House passed its narrower version of the chemicals overhaul by a 398-1 margin and attention turned back to the Senate.
‘Low Point' in Senate
In the upper chamber, two Republican members—Sens. Richard Burr (N.C.) and Kelly Ayotte (N.H.)—announced in early October 2015 that they would block advancing the legislation over the expiration of an environmental conservation program.
Several Senate aides said the move never made sense to them because Burr and Ayotte were not able to leverage the hold into a vote on that program, the Land and Water Conservation Fund, though a reauthorization was ultimately included in an end-of-year government spending deal.
“From my perspective, I understood the idea of trying to get leverage for a priority but it was kind of taking a hostage nobody cared about,” one Republican aide said. “We just felt like, ‘All you're doing is slowing us down.'”
After more than two months, Burr and Ayotte lifted their hold on the TSCA bill but a new obstacle emerged over how precisely the Senate would consider the measure.
Upon resolving that impasse, the Senate passed the bill in December 2015 and turned to merging the dueling measures into one finished product.
‘Weird Alliances' Follow
Both Senate and House aides and members said it ended up being much harder to reconcile the two versions of the bills than they originally anticipated.
Staff from both chambers began meeting in earnest about how they might merge the two bills after Thanksgiving 2015, but spent the first couple of months examining the other chamber's approach to TSCA reform line-by-line.
A couple of principles guided the bicameral negotiations process: House Republicans and Democrats vowed to stay united to be in a stronger negotiating position and there was a strong desire for a bipartisan vote in both chambers.
“How can the House, which doesn't need a single Democrat, justify moving it to the left?”
—Senate Republican aide
What emerged was a series of “weird alliances and fights,” according to one Senate aide closely involved in the negotiations.
“[House Democrats] got a lot of deference from the House Republicans because they wanted to stick together,” the aide said. “You have Pallone's office pushing House Republicans to support things that Senate Republicans didn't support. How can the House, which doesn't need a single Democrat, justify moving it to the left?”
Frantic Final Push
House lawmakers hung together until the very end. A Democratic aide on the House Energy and Commerce Committee told Bloomberg BNA: “We were not comfortable with a lot of the trades made in the Senate bill.”
During the final week, it became clear certain sections of the Senate bill, especially those concerning federal preemption of state regulatory authority that had Boxer's sign off, would not be changed without effectively killing the bill.
A number of options, like simply taking up the original Senate-passed bill, were discussed but ultimately not seriously pursued, according to one Republican aide.
House Republicans then signaled they could move the bill without the support of some House Democrats.
“Pallone's folks pushed too far and put the House Republicans in a position where they had to separate or blow up the bill,” one aide closely involved in the negotiations said.
Another aide said they estimated approximately 100 Democrats would support the emerging bill, even without the support of some senior House Democrats.
The Obama administration had signaled it would sign the legislation and, at that point in the process, House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.), got involved to ensure the deal got done.
“What helped was getting the Pelosi and Hoyer people in there,” a Senate Republican aide said. “They saw the writing on the wall.”
Last-Minute Concessions
Negotiations continued throughout the weekend and into the early morning hours preceding an anticipated House vote. Eventually, changes were incorporated into the legislation that secured Pallone's, but not Tonko's, support.
Among those tweaks were clarifications to the scope of state preemption and new language allowing 10 chemicals on EPA's existing work plan to be exempted from the so-called “preemption pause,”—the compromise on the federal-state preemption issue.
Boxer's staff also said they got provisions in the final bill requiring the EPA to give priority to known carcinogens like asbestos, mandating that the agency consider whether a chemical is stored near drinking water, and blocking any state actions implemented or enacted by April 22, 2016, from federal preemption.
A weekend conference call yielded further technical changes to the legislation, but aides nervously watched the clock. The House Rules Committee, a necessary step before floor consideration, had already extended its deadline for the bill to be submitted until noon on May 23 and warned “there's no such thing as TSCA if you're one minute late,” according to an aide.
An aide sprinted from the Rayburn House Office Building to the Capitol, where the Rules Committee requires paper submissions, to submit the final version just before the deadline.
One day later, on May 24, the House voted overwhelmingly in favor of the legislation 403-12, garnering two more votes than did the last significant environmental statute rewrite—the 1990 Clean Air Act amendments.
Several weeks later, after overcoming an unexpected hold from Sen. Rand Paul (R-Ky.), the Senate concurred by voice vote with the House-passed legislation and sent the measure on to the president.
Lessons Learned
In the weeks following final passage, major players were still not in agreement about what could be learned from the five-year legislative process on TSCA reform.
“When people see what's happened, they'll say—like others have—that this is pretty close to a miracle in this environment.”
—Sen. Tom Udall (D-N.M.)
“I'm just an impatient person in general and Congress is a slow place in general,” Vitter said. “I always saw a path forward. It was just taking too long. That was very frustrating.”
The spokeswoman for Boxer said the senator believed the process for TSCA reform was “not a model for passing legislation” and required “extraordinary efforts” to avoid weakening environmental protections.
“Members need to be willing to stop a bad bill—even if it has a beautiful name,” the spokeswoman said. “It's not easy, but it is necessary if the goal is to protect public health. Sen. Boxer has often worked with stakeholders to pass major legislation, but in this case, industry had an oversized role. That should not be a model.”
While House Republican members and aides expressed happiness with the finished product, there are signs the last-minute break from some Democrats could have longer-term consequences.
“It's not the first time that Energy and Commerce Republicans have backed out of a deal, but it was significant that they did,” a Democratic committee aide said. “And it's going to have long-lasting repercussions, particularly if Mr. Shimkus finds himself in an elevated position next Congress.”
Even Udall, while saying the process “can easily be a model for how we should work together” and earning bicameral praise for his persistence and patience, acknowledged it was nothing short of remarkable that the chemical safety revamp ultimately came together.
“When people see what's happened, they'll say—like others have—that this is pretty close to a miracle in this environment,” he said.

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What the New Chemical Safety Law Means for Business

Jun 22, 2016 | GreenBiz

By Barbara Grady

It’s heralded as the first significant environmental legislation to come out of Congress in the last quarter century, a rare bipartisan accomplishment that will protect Americans from toxins.
But it’s also described as unnecessarily weak, with enforcement stretched so far into the future and funding so murky that it may do little to prevent the public — including children sleeping in flame retardant clothing or sipping from chemical-ladden plastic cups — from exposure to harmful substances for many years to come.
Under either viewpoint, when President Barack Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act today, his signature put into force a long awaited and debated update to the Toxic Substances Control Act (TSCA).
That law left untested for safety all but a couple hundred of the 80,000 chemicals registered for commercial use in the U.S. today. When it was passed 40 years ago, 62,000 chemicals in commercial use were just grandfathered in. And as hundreds of new chemicals entered the market each year afterward, only a handful got reviewed by the EPA.
By comparison, the Lautenberg Chemical Safety Act gives the EPA authority and means to review all commercially used chemicals and requires it to review any new chemical being introduced to the market, using a standard assessment tools to measure risk of injury to human health or the environment.
That change, to ferret out toxic chemicals and discourage or ban their use, could spur product development and innovation in green chemistry "generating more incentives for companies to invest in safer chemicals when designing products," as Environmental Defense Fund Executive Director Diane Regas said in a newsletter sent today.
So today, for the first time, chemical ingredients in everyday products including shampoo, baby soap carpets, flooring, clothing and bedding will begin to be regulated — or will be in about five years when the first compliance deadline must be set. Until now, such regulation only came about after legal challenges or when the EPA could prove exposure to a substance held 'unreasonable risk' to human health.
"It’s huge," said attorney Maureen Gorsen, a partner at the Alston & Bird law firm which specializes in environmental law, natural resources and environmental regulatory compliance.

"A giant swath of the economy" that has been lightly regulated will be under the authority of the EPA for safety reviews of its products, she noted.
Indeed, the chemical industry is one of the largest U.S. industries, with $800 billion in annual sales in 2014.
For businesses, the pressure they've felt from consumers to create green, non-toxic products will be supported by a regulatory framework, affirming their innovative attempts.
"A modernized TSCA will provide companies like P&G with a clear, consistent, science-based regulatory system that will allow us to continue innovating products that improve the lives of our consumers," said Procter & Gamble Chief Technology Officer Kathy Fish. P&G is one of the companies that have been trying to exclude health and environmental toxins from its product line.
Obama has compared this moment to when the Clean Air Act and Clean Water Act were passed in the early 1970s or when major amendments to the Clean Air Act were passed in 1990, setting up standards that have guarded from the worst of air and water pollution.
"For the first time in 20 years, we are updating a national environmental statute," Obama said at the signing ceremony. "For the first time in our history, we’ll actually be able to regulate chemicals effectively. And we’re doing it in the same, overwhelmingly bipartisan fashion as happened with those pillars of legislation to protect our air, and our water, and our wildlife."
To the dozens of NGOs that advocated for stronger chemical safety regulations and for the businesses that have been innovating greener product solutions regardless of a lack of regulation, the law could be a shot of adrenalin.
The old law "not only failed to protect Americans from toxic chemicals; it failed to provide the private sector incentives for investing in safer and sustainable alternatives," Regas of EDF wrote. "The reforms passed by Congress will begin to transform the marketplace." What the law does
Under the Lautenberg Chemical Safety Act, the EPA has authority to review all commercially used chemicals and is required to review new chemicals being introduced to the market, using yet-to-be-created assessment tools for risk of injury to human health or the environment.
EPA’s enforcement options under the law range from requiring labeling of products to banning use of chemicals that fail the safety bar.
The EPA’s first order of business will be formulating those risk assessment tools and defining safety. The law gives EPA a year to do so. Meanwhile, public hearings will take place and input from NGOs and business groups received in the inevitable sausage-making process of regulation crafting.
The law also gives the EPA a year to update its inventory of high priority chemicals in that year so they will then be the first to be tested.
But it stipulates a very slow review schedule of review: the EPA will review a minimum of 20 chemicals at a time and have seven years to complete each review. Then, industry has five more years to comply with whatever rule that review determines. If a chemical is under review by the EPA, states will be preempted from regulating or keeping that chemical from market for at least three years or until the EPA review is complete.

This slow time-table and provisions giving the federal law preemptive power over state chemical safety laws have upset some NGOs who worked hard for chemical safety legislation.
"At most 20 chemicals a year," will be reviewed out of 80,000 chemicals in commercial use whose properties are not well known, complained Charles Margulis of the Center for Environmental Health. At that rate, it will take centuries to review all chemicals found in consumer products.
And some argue that it weakens existing defenses against chemical toxins in the seven states that have chemical safety regulations because EPA's work in reviewing a chemical would preempt state regulation of that chemical for at least three years. Some very large states, including California and New York, regulate chemical use for safety in consumer products.Private sector as chemicals regulator
The Lautenberg Chemical Safety Act — named after the late New Jersey senator who championed it — took so long in coming that the market itself has been a better regulator.
Walmart and Target, two mega-retailers with stores in every U.S. state, each have established business practices of eschewing products with toxic ingredients. Their market power — Walmart operates 6,200 stores and Target about 1,800 —may be better regulators than the U.S. government.
Walmart, through its Sustainable Chemistry Policy, began two years ago not accepting products that contain 10 known toxic substances.
Then, consumer product companies Procter & Gamble began systematically eliminating chemicals that could be injurious to health or environment from their product line up. P&G eliminated the use of phosphates in its detergents last month.

Spurred on by consumers’ rising insistence that products be safe for use and not damage the environment, more companies have come to scrutinize product ingredients in a way that used to be reserved for food. From their actions sprung the Chemical Footprint Project movement of a coalition of groups advocating for consumer protection from toxic chemicals in products.
The success of brands such as Method are testimony to the marketability of toxin-free products.
Richard Liroff, executive director of the Investor Environmental Health Network, has in fact urged investors to keep up the pressure against toxins in consumer products because such pressure from investors and consumers is ultimately most effective.
"The bottom line is we should keep doing what we’ve been doing, and especially step up our game on promoting chemical footprinting, because at the end of the day, the true impact of TSCA reform will turn less on whether various provisions are stronger or weaker or unchanged from the existing miserable TSCA and more on the political context of the new law’s implementation," Liroff said he told his investor network.
"The U.S. federal government, as important as it can and ought to be, will still largely be a laggard, relative to emerging science, NGO market campaigns, European regulators and pre-existing and potential state regulations, in shifting markets towards safer chemicals and materials."
Companies who don't pay attention to market signals and abide only in limited ways to lax regulation are in peril, he said: "Companies that fail to systematically assess the chemicals in their products and their supply chains — putting in place management systems to set goals, gather data and track progress — still pose a greater risk for investors than companies that take such steps."
Still, consumer product companies praised the law as the government finally stepping up.
“We believe the Frank R. Lautenberg Chemical Safety for the 21st Century Act will enhance consumer confidence in the safety of ingredients used in everyday products by strengthening the Environmental Protection Agency’s regulatory system,” Fish, Procter & Gamble's chief technology officer, said.
Walmart deferred commenting on the new law to the Retail Industry Leaders Association, whose Vice President Hun Quach said, "We welcome the enactment of H.R. 2576 which will increase protections for U.S. consumers from unsafe chemicals, eliminate the current patchwork of regulations and help ensure that retailers are able to provide high quality, safe products for all American consumers." The RILA organization was among the businesses at the table building legislative and business support for an update to U.S. chemical safety law. "TSCA reform is long overdue," Quach said.Funding the Lautenberg Act is an issue
Initial funding to develop the regulations will have to come from Congressional appropriations to the EPA — a plan fraught with a history of the Republican-led Congress wanting to chip away at EPA funding. The law stipulates that after enforcement begins, chemical manufacturers will pay a fee to have new chemicals reviewed. The law describes those fees as the ongoing funding source of the review process.
The Lautenberg Chemical Safety Act had very broad bipartisan support — the House passed it 403-12 in May and the Senate with a unanimous voice vote in June — so perhaps funding for chemical regulation will have better luck than funding for other EPA functions.
Its imperfections and compromises are what got this law passed, said Richard Denison, the Environmental Defense Fund's lead senior scientist.
"The new law is built on carefully crafted compromises, classic in the sense that no one got everything they wanted but everyone got something, and not just overall but in each major section of the law," he said in his review blog post of the law after the House vote in early June.
Whatever the balance of its merits and demerits, the new law is an unquestionable improvement from the TSCA.
As Obama said about the TSCA, "The system was so complex, it was so burdensome, that our country hasn’t even been able to uphold a ban on asbestos — a known carcinogen that kills as many as 10,000 Americans every year. "
https://www.greenbiz.com/article/what-new-chemical-safety-law-means-business

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Owens Says TSCA Law Bolsters EPA's Regulation Of Existing Chemicals

Jun 22, 2016 | Inside EPA

By Bridget DiCosmo

Former EPA toxics chief Steve Owens says the Toxic Substances Control Act (TSCA) overhaul law will give a major boost to the agency's authority to regulate chemicals already in the marketplace, overcoming a decades-old bar to addressing such chemicals that was underscored by EPA's failure to regulate the carcinogen asbestos.
In a recent exclusive interview with Inside EPA, Owens also pointed to the reform law's provisions enhancing EPA's ability to require chemical manufacturers to conduct safety testing and new restrictions on when companies can withhold certain information on substances as confidential business information (CBI).
Those provisions and others ensure that the TSCA overhaul signed into law by President Obama June 22 will mark an “unquestionable substantial improvement” to the 1976 toxics law, he said.
From July 2009 to November 2011, Owens served as the assistant administrator in the Obama EPA's Office of Chemical Safety & Pollution Prevention (OCSPP) that oversaw the original TSCA, and before that was director of Arizona's Department of Environmental Quality from 2003 to 2009.
Owens, now an attorney with Squire Patton Boggs, said in the June 16 interview, that the overhaul law ensures EPA will have significant new powers to review and regulate new and existing chemicals.
One of the major accomplishments of the law, Owens said, is the removal of language from the 1976 TSCA that mandated EPA to pursue the “least burdensome requirement” in regulating a chemical once the agency found that the substances presented an unreasonable risk of harm to health or the environment.
The U.S. Court of Appeals for the 5th Circuit in 1991 struck down EPA's attempt to ban asbestos -- a known carcinogen -- under section 6, finding in Corrosion Proof Fittings v. EPA that the agency had not met its burden of proof to establish the chemical's risk could not be reduced by any other regulatory means.
Under the original TSCA's section 6, which addressed EPA's power to regulate existing chemicals, the agency could only move to ban or otherwise restrict a chemical in commerce if it found "reasonable basis" to find that it presents an unreasonable risk, but the agency was required to use the "least burdensome requirement."
In the 5th Circuit's ruling in Corrosion Proof Fittings, the "least burdensome" language proved problematic for EPA to satisfy, and was seen as underscoring the significant hurdles that the agency faced in regulating existing chemicals despite their known risks.
Owens in the interview said “One of the things the agency always grappled with was how to go about reviewing existing chemicals, and does [EPA] have the authority to do so?”
Owens says the “least burdensome” language has been “one of the most significant roadblocks to effective regulation on chemicals,” adding that there was “virtually not a single day while I was at EPA that I didn’t have a discussion of some kind about whether and how EPA could take regulatory action on a chemical under section 6 in light ofCorrosion Proof Fittings.”
The language was always the “biggest question” to come up in those discussions, Owens says, and “the removal of that makes a huge difference.”
TSCA Reform
Obama on June 22 signed into law the bill, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act, in honor of the late New Jersey Democratic senator who long pushed for TSCA reform.
The law overhauls the 1976 chemical safety law, providing significant new authority for EPA to govern both new and existing chemicals. For example, it removes the “least burdensome” language; expressly prohibits EPA from considering costs when determining whether a chemical presents unreasonable risk; and requires the agency to make an affirmative safety finding before allowing a chemical to enter the market.
Owens highlighted revisions in the law to EPA's ability to require testing, which would amend section 4 of TSCA. Section 4 gave the agency power to issue rules requiring chemical manufactures to test their substances for their effects on public health and the environment.
Owens highlighted revisions to EPA's ability to require testing, which would amend section 4 of TSCA to allow the agency to issue administrative orders to compel companies to develop new data on hazard and exposure, whereas under previous TSCA EPA had to use its rulemaking authority.
“It isn't carte blanche authority, so there are limitations,” Owens added. For example, the law includes a requirement that EPA identify the need for the new information and explain how it used available information to inform its request of new information.
The new law also includes new restrictions on when companies may claim information is CBI and avoid disclosure, Owens said, including setting a time limit and requiring the agency to periodically review CBI claims to ensure they are properly substantiated.
Chemicals Management
Owens testified before the Senate Environment & Public Works Committee in February 2010 on a previous, unsuccessful, TSCA reform bill introduced by Lautenberg and Sen. David Vitter (R-LA).
At that time, Owens was still head of OCSPP and Lisa Jackson was EPA administrator, and both were proponents of updating TSCA.
In his testimony, Owens said, “Administrator Jackson and I have both testified before Congress that EPA’s authority is outdated and does not provide the tools to adequately protect human health and the environment. We believe there is a growing consensus that more needs to be done to improve our management of chemicals and reduce harmful exposures to chemicals.”
In the interview with Inside EPA, Owens said that he hopes stakeholders will hold off pursuing litigation over EPA's implementation of the law until such time that “at least the foundation of the new approaches can be implemented by the agency.” In that regard Owens emphasized the need for EPA to work closely with stakeholders from the outset, to minimize the possibility of litigation over its early rulemakings as much as possible.
Speaking about the preemption provisions in the bill, which were a subject of heated debate among lawmakers but which EPA did not take a position, Owens said, “this is a different way of doing it,” compared to state-federal relationships in other environmental laws.
For example, Owens added, under other federal laws, like the Clean Water Act and Clean Air Act, states can “do more, but not less,” and that the reformed TSCA “clearly has a preemptive effect on states” but adds that there are “offramps” that allow states to pursue chemical safety requirements in certain circumstances, as well as “grandfathering” in various state requirements already in place.
Under the new law, states are preempted from taking action on a chemical once EPA has determined that the substance does not pose an unreasonable risk. Potential state actions on high priority chemicals moving through the agency's risk evolution process are also preempted.
But preemption does not apply to the first 10 chemicals EPA is directed to assess under the law, derived from its 2014 TSCA work plan for addressing risks from chemicals. Preemption would also not apply nor to industry-requested chemicals designated for risk assessment.
http://insideepa.com/daily-news/owens-says-tsca-law-bolsters-epas-regulation-existing-chemicals

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Survivor’s Hope Becomes Law: Cancer Clusters Will be Tracked

Jun 22, 2016 | The Sacramento Bee

By Rob Hotakanein

President Barack Obama signed “Trevor’s Law” on Wednesday, legislation named after a Boise man that will require the federal government to document and track cancer clusters around the nation.
“This is the last step to make this law official,” said Trevor Schaefer, who survived a diagnosis of brain cancer in 2002 at age 13. “I am thrilled to finally get this to the finish line. “
THIS IS THE LAST STEP TO MAKE THIS LAW OFFICIAL. I AM THRILLED TO FINALLY GET THIS TO THE FINISH LINE.Trevor Schaefer
Schaefer and his mother, Charlie Smith, who’s also from Boise, attended the signing ceremony at the White House. They were accompanied by Idaho Republican Sen. Mike Crapo.
Trevor’s Law will require the government to document and track childhood and adult cancer clusters in Idaho and around the nation. In 2013, Schaefer joined cancer activist Erin Brockovich and others to testify for the legislation on Capitol Hill.
Crapo and California Democratic Sen. Barbara Boxer helped get the provision included in a broader bill, the Toxic Substances Control Act, that passed the Senate earlier this month. The House passed the legislation in May.
“Today’s bill signing proves again the power of one Idahoan, one American, to bring change that will benefit millions of people who could face cancer one day,” Crapo said.
http://www.sacbee.com/news/article85387377.html#storylink=cpy

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President Signs Final TSCA Reform Bill

Jun 22, 2016 | Safer Chemicals, Healthy Families

By Andy Igrejas

This morning, President Obama will sign H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, into law. The legislation to reform the 1976 Toxic Substances Control Act (TSCA) passed the Senate earlier this month.
In response, Andy Igrejas, the director of Safer Chemicals, Healthy Families, a broad coalition of health, environmental, labor and business organizations, issued the following statement:
“President Obama’s signature on this bill marks both the end of a long process, and the beginning of a new chapter as the EPA puts its new authority to work. The chemical backlog is enormous. It’s vital that EPA starts strong and extracts the maximum public health benefits possible from the new law.”
“Because of the limitations in this bill, however, it will also be crucial that the growing demand for safer chemicals continue across society, from state and local governments, retailers, manufacturers and informed consumers.”
http://saferchemicals.org/newsroom/president-signs-final-tsca-reform-bill/

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What An Honor

Jun 22, 2016 | Environmental Defense Fund

By Richard Denison

After 30 years in Washington, maybe I should be more jaded, but today was a big day. Not only did I have the incredible honor this morning of meeting with President Obama, but it was just prior to getting to witness his signing of a bill that I think is going to make a big difference in our lives.
When I started working on and with the Toxic Substances Control Act (TSCA) some 15 years ago and began trying to help build the case for its reform, never in a million years did I contemplate such an honor, let alone being able to work so closely on and then witness the historic signing of this strong new law.
The small group that met with the President included not only people in Washington who worked for this reform but also those who have been impacted by our broken law or stand to benefit the most from the new law: Young adults and parents of children who have had chronic diseases and conditions like cancer and autism for which there is growing concern about the contribution of chemical exposures.
Having been in the weeds and minutiae of TSCA reform for so long, it was very moving that the President chose to meet directly with people that this whole reform effort is most about: The millions of Americans who worry about whether the products they use are safe for them and their families, and those left to wonder whether chemical exposures are to blame for a disease or condition they or their loved ones contract.
I came to work on TSCA somewhat indirectly. I spent a lot of the 1990s working with consumer product companies trying to develop tools their formulators could use assess the health and environmental impacts of the chemicals they were using or considering using in their products. Repeatedly we found that the data they needed to make better choices were almost always lacking. That’s when I started realizing that our weak chemical safety law bore much of the blame for the lack of information available in the market about most chemicals.
I also came to believe that, in part because of a broken TSCA that never required a government review of chemicals, product companies lacked incentives to ensure the safety of the chemicals in their products by developing data on potential chronic health concerns. (Short-term concerns are typically considered because of product liability.)
One of my main hopes with the revised law is that it will shift the incentive structure companies face towards one that rewards affirmative evidence of safety instead of ignorance (a theme that goes back to EDF’s 1997 report,Toxic Ignorance). And, in turn, that the public will be better protected from the long-term health impacts of untested and unregulated chemicals.
As we all now turn to the challenging task of implementing this new law, I am optimistic that we’ve turned a corner as a nation and are embarking on a new path to better protecting the health of this and future generations. And I’m humbled to have been able to thank the President on behalf of the hundreds of friends and colleagues with whom I’ve worked on this effort over the years.
http://blogs.edf.org/health/2016/06/22/what-an-honor/#more-5371

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Energy News

EPA Should Prioritize State Compliance Funding, Speakers Say

Jun 23, 2016 | BNA Daily Environment Report

By Brian Dabbs

The Environmental Protection Agency should prioritize increased state compliance funding over outreach to non-governmental organizations, a local chemical representative and Louisiana regulator told a conference in New Orleans June 21.
The EPA continues to push forward an onerous regulatory agenda, and industry is desperately struggling to keep pace, said Henry Graham, vice president of environmental affairs and general counsel at the Louisiana Chemical Association, and Donald Trahan, Louisiana Department of Environmental Quality counsel.
Agency officials issue stringently monitored grants to states, but more funding and flexibility would boost state expertise in permit review and enforcement to the benefit of compliant companies, Graham told the Air and Waste Management Association.
State Strings Attached
If you go through the EPA budget, “you will see millions of dollars that are provided for outreach activities with NGOs, and I know with some of our past experience in this state, is that they go with no strings attached; in other words, EPA doesn't follow up to see if they actually use the money for the purpose intended,” Graham said. “At the same time, they put all kinds of strings on these grant requirements for the states.”
Graham said states, on occasion, may have to ultimately pay money to receive a grant due to the cost of compliance with the terms.
The association invited Raj Rao, EPA official at the Office of Air Quality Planning and Standards, but he was absent on the panel.
State Funding Flat
The EPA's budget over the past 20 years has risen significantly, but state funding has remained static, Graham said.
“The only area of EPA's budget that has not grown is the money they put to the states,” he said. “They've grown their money going to the NGOs; they've grown their money for research; they've grown their money in a lot of other areas but not in the assistance to the states. That's a frustration that we all face.”
Congress appropriated roughly $6.5 billion in fiscal year 1996, according to EPA data. In comparison, Capitol Hill lawmakers approved more than $8.1 billion for the agency in FY 2016.
“Anybody can apply for grants, and you can get grants to investigate, you know, the impact of diesel engines in school buses on schoolchildren,” Trahan said. “And EPA will fund your project. And a lot of those go to communities; a lot of them go to NGOs, environmental groups, academia, things like that.”
Those initiatives are not unworthy of EPA support, but they may reflect misguided priorities, Graham said, suggesting the agency could divert some of those resources to state funding.
‘Layering Effect.'
In the backdrop of the alleged “war on coal,” the EPA is conducting a “small armistice and battle” with the oil and gas industry, Graham said.
On top of rules already in effect, the EPA is pushing forward with a new proposal on national ambient air quality standards (RIN:2060-AS82) and a final rule on greenhouse gas reporting rule revisions (RIN:2060-AS60), as well as other planned rulemaking.
“A lot of the layering effect is to set up so many regulations that you cannot possibly comply with all of them; that is our concern from the regulated community,” Graham said. “If I were EPA for six months, in the last six months of this term, I would put the brakes on a bit and rather be correct on a few rules than try to shove through the door as many rules as these guys have done.”

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434271&vname=dennotallissues&fn=92434271&jd=92434271

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EPA Chief Tangles with GOP on Regulations

Jun 22, 2016 | The Hill

By Devin Henry

The top Republican on the House Science Committee sparred with the head of the Environmental Protection Agency (EPA) on Wednesday, criticizing the EPA's scientific work and accusing it of being “an agency in pursuit of a purely political agenda."
Chairman Lamar Smith (R-Texas) and EPA Administrator Gina McCarthy got into a heated discussion about the agency’s rulemaking agenda and the science it uses to justify those rules during a Wednesday hearing.
The two tangled on the findings of a year-old federal report that concludes energy prices might go up as coal-fired power plants close under the Clean Power Plan, the EPA’s landmark climate rule for power plants.
“This is the Department of Energy, this is the Energy Information Administration, this is this administration," Smith said. "So do you agree or disagree with their conclusion?”
McCarthy replied: “That is the opposite of what we think will happen based on our analysis,” saying the EPA expects energy prices to decline and jobs to grow as renewable energy takes off.
“It’s nice to have the administration at war with itself,” Smith said.
The two sparred on the Paris climate deal as well, with Smith arguing the international greenhouse gas reduction agreement will have a negligible impact on climate change.
McCarthy said the deal is designed as a first step toward more climate work down the road.
“I think it sets us on a course to work together on a planetary scale to address the biggest environmental and public health challenge we face,” she said. “You can’t make a marathon without getting across the starting line.”
Wednesday’s hearing was to focus on the science behind EPA rules and regulations. Smith has long been critical of the EPA’s scientific work, sponsoring a bill passed by the House last year requiring the agency release more of its internal science publicly.
McCarthy faced almost three hours of questions from a GOP-dominated panel on Wednesday, fielding questions on EPA policies ranging from the Clean Power Plan, ozone limits and water rules to issues like emissions from race cars and a mine waste spill in Colorado.
With Democrats holding a sit-in on the House floor demanding votes on gun-related bills, only three Democrats showed up for the hearing, leaving McCarthy to face a mostly hostile committee.
The Democrats that did attend — ranking member Eddie Bernice Johnson (Texas) and Reps. Ami Bera (Calif.) and Paul Tonko (N.Y.) — were mostly conciliatory to McCarthy.
“I have little doubt that some members will try to argue that EPA is an overzealous job-killing agency that needs to be reined in,” Johnson said early in the hearing. “I am pleased that EPA continues to rise to this challenge [of protecting the environment] and has developed regulations that are balanced and progressive.”
http://thehill.com/policy/energy-environment/284501-epa-chief-tangles-with-gop-on-regulations

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No Breakthrough for Energy Bill Conference After Meeting

Jun 23, 2016 | BNA Daily Environment Report

By Ari Natter

The primary authors of House and Senate energy legislation emerged from a meeting June 22 without a breakthrough on a path forward for their two bills as time runs short to hold a conference to work out differences.
Sen. Maria Cantwell (D-Wash.), the top Democrat on the Senate Energy and Natural Resources Committee, cast doubt on whether the Senate would hold a formal vote to go to conference with the House and declined to say whether she would support a motion to do so.
“They are all just very different products,” Cantwell said of the two bills. “We are all going to keep talking.”
Others who attended the meeting included Sen. Lisa Murkowski (R-Alaska) , chair of the Senate committee; Reps. Fred Upton (R-Mich.) and Frank Pallone (D-N.J.), the respective chair and ranking member of the House Energy and Commerce Committee; and Reps. Rob Bishop (R-Utah) and Rep. Raúl M. Grijalva (D-Ariz.), the chairman and top Democrat on the House Natural Resources Committee.
It was the second time the group met. Democrats have balked at holding a Senate vote to proceed to conference with the House bill because it includes a slew of provisions that they and the White House oppose.
“I think it was kind of people laying out what points of severe difference and how some of those might be problematic going forward,” Grijalva told Bloomberg BNA.
Republicans Not Backing Down
Asked if Republicans agreed at the meeting to take any of the controversial measures opposed by the Obama administration off the table, Grijalva said: “Not that I could tell.”
He added, “We're going to participate as far as it can go with the understanding the president's veto threats are still there and something's got to be done about those.”
Bishop told reporters that Republicans have not agreed to take anything off the table in advance of a formal energy bill conference.
“There is limited value in negotiating with yourself ahead of time,” Bishop said. “I thought that was the process. They have a bill, we have a bill, then you work out and conference the differences.”
Still, Bishop conceded Republicans could be willing to bend on some areas of disagreement with Democrats during formal conference talks.
“As far as I'm concerned, there are no red lines in the sand. Everything is open for discussion,” he said. “Not everything has to be in a final product, and what is or is not on the table is not what I consider to be necessarily in the final product.”
Recess, Elections Loom
Additional talks are expected, but analysts and lawmakers say time is running short to conference the two bills as a seven-week recess approaches beginning July 15 and the presidential campaign heats up in the fall.
Sen. John Thune (R-S.D.), the Senate's No. 3 Republican, said, “Hopefully, they will get to a resolution and soon. The calendar is going to be a big concern. But that is why we have to try as many good-faith efforts as we can.”
The Senate passed its version of the legislation (S. 2012) on an 85-12 vote in April. The House then voted along party lines to add bills as part of an 806-page amendment before sending the measure to the Senate. Among them was a bill to expedite the permitting process for mines. Another was California drought legislation opposed by some environmentalists.
“The legislation sent over from the House of Representatives undermines the progress our nation needs,” 23 environmental groups wrote in a June 21 letter urging the Senate to oppose a motion to proceed to conference. “Their amendment substituted a bipartisan energy bill with a long list of extreme ideological provisions that would take us backwards on many of our critical environmental priorities.”

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434289&vname=dennotallissues&fn=92434289&jd=92434289

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Environmental Groups Unite to Oppose Energy Bill

Jun 23, 2016 | The Hill

By Devin Henry

Nearly two dozen environmental groups on Wednesday urged senators not to work with the House on an energy policy reform bill this session.
In a letter to senators, 23 groups said the House-passed bill “undermines the progress our nation needs” on energy policy. They said the Senate should not vote to go to conference with the House so long as policies they oppose are included in the bill.
“The House-passed amendment would undoubtedly take our country down the wrong track and contains so many controversial and problematic provisions it is impossible to see how agreement could be found,” wrote the groups, a collection that includes the Sierra Club, Greenpeace, the League of Conservation Voters and the Natural Resources Defense Council.
“Rejecting a conference with the current House offer is essential to protect against harm to our environment.”
After the Senate passed its bipartisan energy bill in April, the House considered it and attached a new handful of conservative policies. Members passed the bill and voted to go to a conference committee with the Senate to hammer out the differences between them.
The Senate has yet to take the same step, though, with Democrats citing the conservative provisions in the bill.
Business and energy groups want the Senate to take that step, with the U.S. Chamber of Commerce writing a letter to members last week encouraging them to go to a conference committee. Lawmakers are working on a constricted legislative calendar, meaning they are running out of time to get to find a compromise energy package this year.
The green groups objected to environmental provisions, energy efficiency measures and renewable power research chapters in the House-passed bill.
“We appreciate your efforts to return to regular order and work across party lines on energy policy,” they wrote to the Senate. “But process isn’t the same as progress.”
http://thehill.com/policy/energy-environment/284511-environmental-groups-unite-to-oppose-energy-bill

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Cantwell Says Pre-Conference Energy Talks to Continue, But No Vote on the Horizon

Jun 22, 2016 | PoliticoPro - Whiteboard

By Nick Juliano

Sen. Maria Cantwell said lawmakers would keep talking privately about how to reconcile House- and Senate-passed energy bills after a closed-door meeting of principle negotiators this morning produced “a lot of good conversation” but no major breakthroughs.
“We’re all keeping talking,” Cantwell, the top Democrat on the Energy and Natural Resources Committee, said after the meeting, which included ENR Chairwoman Lisa Murkowski and the chairmen and ranking members of the House Energy and Commerce and Natural Resources committees.
Cantwell said Democrats are waiting for answers to questions raised this morning about their objections to the House bill, which the White House has threatened to veto over several provisions that would dial back environmental regulations. She predicted there would be no Senate vote this week on a motion to go to conference.
“Listen, they’re different products. They’re very different products,” Cantwell said. “So what does good policy look like?”
Earlier today, Natural Resources Chairman Rob Bishop, another participant in the talks, said he would prefer to launch the conference committee without delay but he did not completely rule out making additional informal concessions to get a conference committee formed.
https://www.politicopro.com/energy/whiteboard

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Obama’s Fracking Comeuppance

Jun 22, 2016 | The Wall Street Journal

By The Editorial Board

A judge he appointed rebukes an anti-drilling regulation as lawless.
Another day, another judicial rebuke to President Obama’s contempt for the rule of law. On Wednesday a federal judge struck down an oil and gas drilling rule imposed with no statutory authority.
In 2015 the Bureau of Land Management published new regulations about well construction and water management for hydraulic fracturing, or fracking, that takes place on federal and Indian lands. The BLM asserted “broad authority” to control oil and gas operations on the basis of laws that were passed in 1920, 1930, 1938, 1976 and 1982 and were allegedly ambiguous. Thus the agency said it deserved the benefit of the interpretive doubt that the courts call Chevron deference.
Abusing Chevron is an Obama specialty. But BLM’s overreach was notably egregious because Congress passed an energy law in 2005 that stripped the executive branch of fracking jurisdiction and gave that power to the states.
The BLM argued that Congress’s choice didn’t matter because the bureau wasn’t mentioned by name in the 2005 law. That claim inspired Judge Scott Skavdahl of Wyoming—an Obama appointee—to conduct a remedial seminar in the Constitution’s separation of powers.
Under the BLM argument, Judge Skavdahl writes, “there would be no limit to the scope or extent of congressionally delegated authority BLM has. . . . Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing.”
Judge Skavdahl also rebukes the administrative agencies that “increasingly” rely “onChevron deference to stretch the outer limits of ‘delegated’ statutory authority by revising and reshaping legislation.” He reminds that agencies derive their “existence, authority and powers from Congress alone,” and that Congress’s “inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently.”
A President who rewrites inconvenient laws ought to alarm Americans of all political persuasions. Principled decisions like Judge Skavdahl’s help restore the constitutional norms that Mr. Obama has done so much to dismantle.
http://www.wsj.com/articles/obamas-fracking-comeuppance-1466638580

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Federal Court Strikes Down BLM Fracking Regulations

Jun 23, 2016 | BNA Daily Environment Report

By Alan Kovski

A federal court in Wyoming struck down Bureau of Land Management regulations on hydraulic fracturing on federal and Indian lands (Wyoming v. Interior, D. Wyo., No. 2:15-cv-43, 6/21/16).
Congress never gave the Interior Department authority to regulate fracking, the U.S. District Court for the District of Wyoming said in the June 21 ruling in lawsuits brought by several states and two industry groups.
The BLM, an Interior agency, has authority to regulate under land-use planning statutes concerned with surface disturbance and orderly leasing, but not under environmental laws encompassing subsurface activities, the court said.
The ruling will come as a relief to states and oil and gas companies worried about the complications of new federal regulations being overlaid on existing state regulations for energy development. Fracking now is used to stimulate oil or natural gas flow in the vast majority of onshore wells and probably is used in 100 percent of the wells drilled in shale or other non-porous rock.
The two oil and gas associations argued in their lawsuit that many elements of the regulations were impractical or unclear, hence arbitrary and capricious under the Administrative Procedure Act.
But District Court Judge Scott Skavdahl based his ruling entirely on the constitutional argument of the states, led by Wyoming, concerning BLM authority. He said the court need not address the other points raised by plaintiffs.
Administration Will Appeal
Interior reacted with an expression of disappointment June 22 and a reference to “pending litigation,” after which White House spokesman Josh Earnest said the case would be taken to the U.S. Court of Appeals for the Tenth Circuit.
An Interior spokesperson said, “While we defer more comment due to pending litigation, the BLM's modernized fracking requirements reflect today's industry practices and are aimed at ensuring adequate well control, preventing groundwater contamination and increasing transparency about the materials used in the fracturing process.”
The spokesperson added, “It's unfortunate that implementation of the rule continues to be delayed because it prevents regulators from using 21st century standards to ensure that oil and gas operations are conducted safely and responsibly on public and tribal lands.”
The fight in the appellate court will not be a slam dunk, said Mark Barron, a Baker & Hostetler LLP attorney who was on the team representing the industry plaintiffs, the Independent Petroleum Association of America and the Western Energy Alliance.
Barron said the appellate court could affirm Skavdahl's ruling on the statutory authority point, or it could disagree on that point but remand the case for consideration of the other arguments—such as the industry objections under the Administrative Procedure Act.
Although it is less likely, the appellate court could rule against the BLM on one or more of those other arguments rather than the statutory authority, he said.
Wider Implications Doubted
It remains to be seen whether the district court decision could have implications beyond fracking, given the array of regulations applied by the BLM to federal and Indian lands.
Barron told Bloomberg BNA he “would respectfully disagree” that the case was significant to issues other than fracking.
The district court only addressed hydraulic fracturing, and the appellate court is likely to do the same, because courts are reluctant to make rulings that apply more widely than necessary to settle a dispute, he said.
In addition, the technique of hydraulic fracturing was specifically addressed in a federal law, the Energy Policy Act of 2005, which was a central factor in the district court's decision. That separated fracking from other issues that might arise in BLM regulation of federal lands, Barron said.
The industry plaintiffs did not ask for the court to rule on anything other than hydraulic fracturing, he added.
Industry Welcomes Decision
The Independent Petroleum Association of America and the Western Energy Alliance issued statements welcoming the ruling.
“IPAA has long said that the federal government's attempt to regulate hydraulic fracturing is unnecessary, duplicative and would further drive independent producers from federal lands,” the IPAA said. “We recognize that every energy-producing area has different needs and requirements, which is why the states are far more effective at properly regulating hydraulic fracturing than the federal government.”
Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance, said in a statement: “We're overjoyed with the ruling. The judge determined that the federal government lacks the authority to regulate fracking, period. He decided exclusively on statutory authority, so there's nothing to remand, no do-over.
“He didn't even rule on our technical Administrative Procedures Act arguments, which we believe are still strong and represent another line of defense if BLM appeals to the circuit court,” she said.
The BLM regulations for hydraulic fracturing were issued March 26, 2015 (80 Fed. Reg. 16,127; RIN:1004-AE26). The district court postponed the regulations in June and issued a preliminary injunction Sept. 30, never allowing them to go into effect.
Republicans Fault Administration
Republican members of Congress were more sharply critical of the Obama administration.
“Political observers will say this ruling is yet another blow to the president's extreme environmental legacy,” House Majority Leader Kevin McCarthy (R-Calif.) said in a June 22 statement. “Constitutionalists will celebrate the fact that yet another example of executive overreach has been struck down. They are both right.”
House Speaker Paul Ryan (R-Wis.) issued a similarly tart statement.
“Hydraulic fracturing is one of the keys that has unlocked our nation's energy resurgence in oil and natural gas, making the United States the largest energy producer in the world, creating tens of thousands of good-paying jobs and lowering energy prices for consumers. Yet the Obama administration has sought to regulate it out of existence,” Ryan said.
“This is not only harmful for the economy and consumers, it's unlawful—as the court has just ruled,” Ryan said.
Democrats were not so quick to react. Hillary Clinton, the presumptive Democratic presidential nominee, has said she would use regulations to prevent hydraulic fracturing from occurring in many places.
Drawing Lines on Land-Use Laws
The BLM explained its regulations in terms of protecting water supplies, assuring well integrity and requiring more public disclosure of chemicals used in fracking.
It argued that its legal authority derived primarily from the Mineral Leasing Act of 1920 (MLA), the Federal Land Policy and Management Act of 1976 (FLPMA), the Indian Mineral Leasing Act of 1938 and the Indian Mineral Development Act of 1982.
The district court saw no justification in those laws. They are land-use planning statutes, not environmental laws, the court said.
To make the distinction, the court cited a Supreme Court precedent, Cal. Coastal Comm'n v. Granite Rock Co. (480 U.S. 572, 107 S. Ct. 1419, 94 L. Ed. 2d 577, 25 ERC 1713 (1987)).
“Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits. Congress has indicated its understanding of land use planning and environmental regulation as distinct activities,” the Supreme Court said in its 1987 ruling.
“Congress has also illustrated its understanding of land use planning and environmental regulation as distinct activities by delegating the authority to regulate these activities to different agencies,” the Supreme Court said.
Congress Has Spoken, Court Says
In the Wyoming district court ruling, Skavdahl wrote that Congress addressed the issue of hydraulic fracturing regulation in the Energy Policy Act of 2005 by giving the Environmental Protection Agency, not Interior, the authority to regulate fracking under the Safe Drinking Water Act if diesel fuels are used in the process.
“It makes no sense to interpret the more general authority granted by the MLA and FLPMA as providing the BLM authority to regulate fracking when Congress has directly spoken to the ‘topic at hand' in the 2005 [Energy Policy] Act,” he wrote.
“Given Congress' enactment of the [Energy Policy] Act of 2005, to nonetheless conclude that Congress implicitly delegated BLM authority to regulate hydraulic fracturing lacks common sense,” the judge wrote. “Congress' inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment,” the judge wrote.
Wyoming was joined in the litigation by Colorado, North Dakota, Utah and the Ute Indian Tribe. The government's position drew support from six environmental advocacy groups represented by Earthjustice.
The states and the Ute Indian Tribe were represented not only by state attorneys general but Holland & Hart LLP, Greenberg Traurig LLP, Fredericks Peebles & Morgan LLP and other law firms. The environmental intervenors were represented by Earthjustice.

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District Court Voids Obama Administration Fracking Regulations

Jun 22, 2016 | The Washington Post

By Jonathan H. Adler

On Tuesday, a federal district court in Wyoming invalidated Interior Department regulations limiting hydraulic fracturing (a.k.a. “fracking” or “fracing”) on federal lands. The opinion, by Judge Scott Skavdahl, begins:
This matter comes before the Court on the Petitions for Review of Final Agency Action filed separately in each of these consolidated actions, challenging the Bureau of Land Management’s issuance of regulations applying to hydraulic fracturing on federal and Indian lands. The Court, having considered the briefs and materials submitted in support of the petitions and the oppositions thereto, including the Administrative Record, and being otherwise fully advised, FINDS that the Bureau of Land Management lacked Congressional authority to promulgate the regulations.
Our Constitutional form of government is built upon three separate but equal branches of government: the legislative branch (Congress) which makes the laws; the executive branch (President) which enforces the laws; and the judicial branch (Courts) which interpret the laws. In this case, the threshold issue before this Court is a Constitutional one—^has Congress (the legislative branch) delegated its legal authority to the Department of Interior to regulate hydraulic fracturing. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States. “Regardless of how serious the problem an administrative agency seeks to address; … it may not exercise its authority ‘in a manner that is inconsistent with administrative structure that Congress enacted into law.'” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). The Constitutional role of this Court is to interpret the applicable statutory enactments and determine whether Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not.
In rejecting the Obama administration’s arguments that the court should defer to the agency’s construction of the relevant statutory provisions, Skavdahl wrote:
In recent years, as does the BLM here, federal agencies have increasingly relied on Chevrondeference to stretch the outer limits of its “delegated” statutory authority by revising and reshaping legislation. See Caring Hearts Personal Home Servs., Inc. v. Burwell, —F.3d —, No. 14-3243, 2016 WL 3064870, at *1 (10th Cir. May 31, 2016). However, Chevron involved a challenge to an agency construction of a specific statutory provision where the agency had clearly been granted regulatory authority over the activity in question. Chevron, 467 U.S. at 839-40, 866. This case stands in contrast — Congress has not directed the BLM to enact regulations governing hydraulic fracturing. Indeed, Congress has expressly removed federal agency authority to regulate the activity, making its intent clear. If this Court were to accept Respondents’ and Intervenor Respondents’ argument, there would be no limit to the scope or extent of Congressionally delegated authority BLM has, regardless of topic or subject matter.
“[N]o matter how important, conspicuous, and controversial the issue, … an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.” Brown & Williamson, 529 U.S. at 161. Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing. Despite the lack of authority, the BLM persisted in its rulemaking efforts. Comments made by the EPA itself suggest that the Fracking Rule is an attempt to resurrect EPA’s pre-2005 EP Act authority (see DOI AR 0103278_002-3); that is, the BLM is attempting to regulate hydraulic fracturing as underground injection wells in a manner that the EPA would have done under the SDWA absent the 2005 EP Act. The BLM has attempted an end-run around the 2005 EP Act; however, regulation of an activity must be by Congressional authority, not administrative fiat. The Court finds the intent of Congress is clear, so that is the end of the matter; “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43.
The opinion concludes:
As this Court has previously noted, our system of government operates based upon the principle of limited and enumerated powers assigned to the three branches of government. In its simplest form, the legislative branch enacts laws, the executive branch enforces those laws, and the judicial branch ensures that the laws passed and enforced are Constitutional.See Marbury v. Madison, 5 U.S. 137, 176 (1803). A federal agency is a creature of statute and derives its existence, authority and powers from Congress alone. It has no constitutional or common law existence or authority outside that expressly conveyed to it by Congress. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also Michigan v. EPA, 268 F.3d 1075, 1081-82 (D.C. Cir. 2001). In the absence of a statute conferring authority, then, an administrative agency has none. See American Petroleum Inst. v. EPA, 52 F.3d 1113, 1119-20 (D.C. Cir. 1995). This Court “must be guided to a degree by common sense as to the manner in which Congress would likely delegate a policy decision of such economic and political magnitude to an administrative agency.” Brown & Williamson, 529 U.S. at 133. Given Congress’ enactment of the EP Act of 2005, to nonetheless conclude that Congress implicitly delegated BLM authority to regulate hydraulic fracturing lacks common sense. Congress’ inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment or the Citizens of the United States. “[The Supreme] Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380 (1989). Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing. The BLM’s effort to do so through the Tracking Rule is in excess of its statutory authority and contrary to law. As this finding is dispositive as to each of the Petitions for Review, the Court need not address the other points raised in support of setting aside the Fracking Rule. THEREFORE, the Court holds the Fracking Rule is unlawful, and it is
ORDERED that the BLM’s final rule related to hydraulic fracturing on federal and Indian lands, 80 Fed. Reg. 16,128 (Mar. 26, 2015), is hereby SET ASIDE.
I expect the Obama administration will appeal.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/22/district-court-voids-obama-administration-fracking-regulations/

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Federal District Judge Halts BLM Fracking Rule

Jun 22, 2016 | Fuel Fix

By Victor Flatt

Today a Wyoming Federal District Judge halted the BLM’s proposed rule governing fracking on federal lands (including Indian lands). The basis of the opinion was a determination that the 2005 Energy Policy Act which explicitly withdrew authority from the EPA to regulate hydraulic fracturing under the Safe Drinking Water Act, mean that Congress has expressly “spoken on the issue of not regulating fracking.” It is clear that the opinion will be appealed to the 10th Circuit, and my own opinion is that the District Judge misinterprets the specific effect of the SDWA language in the 2005 Energy Policy Act.
It is true, as the Judge points out, that the 2005 Energy Policy Act unambiguously stops the EPA from regulating fracking under its SDWA authority. But under statutory interpretation rules, a limitation on the EPA to regulate fracking generally, does not mean that the BLM can not impose regulations on fracking on public lands.
In multiple statutes, Congress has granted the BLM authority to regulate public lands for “public welfare” (under the Mineral Leasing Act) and for multiple uses, including environmental protection, under the Federal Lands Planning and Management Act. Nothing in the 2005 Energy Policy Act repealed this authority. It is not inconsistent to prohibit the EPA from regulating fracking generally under a statute that was not designed for the operation, and still leaving the BLM authority to manage any activities that could affect groundwater on public lands (which may have other uses than direct drinking water for humans).
While I express no opinion on the wisdom of the BLM’s proposed rule or whether it provides needed environmental protection, I believe that they have the authority to regulate the activity on public lands. Whether they should is another question.
http://fuelfix.com/blog/2016/06/22/federal-district-judge-halts-blm-fracking-rule/

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Professor Inadvertently Helped Sink Fracking Rule

Jun 22, 2016 | E&E News PM

By Robin Bravender

Many law professors would be thrilled to have their work cited in a major court decision.
Not Hannah Wiseman.
The Florida State University law professor, who specializes in energy and environmental law, was dismayed when her 2008 law review article was cited by opponents of an Obama administration hydraulic fracturing rule in their bid to freeze the rule. And yesterday, she was irked again when she was cited in a strongly worded ruling that struck down the administration's regulation.

The federal judge and those opposing the rule got it wrong, Wiseman said.
"I'm frustrated that the petitioners and the court have continued to use the article for a proposition that it doesn't stand for," Wiseman said today in an interview. "I am not excited to have my article used in this manner."
She attempted to clarify her argument in a House Natural Resources Committee hearing last year, where she suggested that her comments had been taken out of context. She wrote ablog post today calling the court's opinion that cited her work "erroneous." And she's planning to co-author a brief to clarify her article if the court's ruling is appealed, as expected.
Wiseman wrote the article in 2008 when she was a visiting assistant professor in a two-year fellowship position at the University of Texas School of Law. (She noted today that she "was not even a tenured law professor" at the time, and it was the first article she'd written about hydraulic fracturing.)
Judge Scott Skavdahl, appointed by President Obama to the U.S. District Court for the District of Wyoming, cited her article as he presented an issue central to the case: whether a 2005 energy law removed fracking from federal regulators' reach. The footnote, citing Wiseman's article, says the Energy Policy Act "'conclusively withdrew fracing (sic) from the realm of federal regulation,' leaving any regulatory control to the states."
But Wiseman said she was taken out of context.
The comments in her article were intended to indicate that Congress exempted hydraulic fracturing from the Safe Drinking Water Act, "but not to suggest that many other well development stages associated with fracturing, such as flowback disposal and discharge, are exempt from federal laws," she wrote in her congressional testimony last year. "Notably, my article also does not address the separate authority of the BLM to regulate fracturing on federal lands," she added.
Skavdahl ruled yesterday that the Bureau of Land Management lacked congressional authority to promulgate the regulations (EnergyWire, June 22).
"The court's erroneous determination that a Congressional exemption of one activity from one federal environmental act exempts that activity from all other federal statutes -- including statutes that apply to activity on lands owned and managed for the benefit of the public -- could have far-reaching consequences," Wiseman wrote in her blog post today published by the Center for Progressive Reform.
"Unfortunately, the court in both its preliminary injunction and merits opinion largely adopts petitioners' dishonest interpretation and use of my article," she wrote. "Law review articles can provide useful history and can help illuminate the meaning of statutes and prior court opinions, but courts should not use them in place of direct legal precedent."
http://www.eenews.net/eenewspm/2016/06/22/stories/1060039244

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EPA Boosts Estimate of Benefits From Oil, Gas Rule

Jun 23, 2016 | BNA Daily Environment Report

By Brian Dabbs

The Environmental Protection Agency has boosted by $10 million the estimate of the benefits provided by a rule limiting emissions of methane and other pollutants from new and modified oil and gas wells, an agency official said.
The EPA's new source performance standards for new and modified oil and gas wells, issued in June (RIN:2060-AS30) will provide $170 million more in annual climate change benefits than the rule is expected to cost the industry, Bruce Moore from the agency's Office of Air Quality Planning and Standards said June 22. That's up from the $160 million in net benefits the EPA had estimated when the rule was finalized.
EPA officials previously said the new source performance standards rule would provide $690 million in climate change benefits in 2025, outweighing estimated compliance costs of $530 million. That equates to a $160 million net savings.
The American Petroleum Institute has argued the costs could be as much as $800 million in 2025.
The rule is expected to reduce volatile organic compound emissions by 200,000 tons and hazardous air pollutants by 4,000 tons, Moore said at the Air and Waste Management Association conference in New Orleans. Some of those benefits, however, are not financially quantifiable, Moore added.
The EPA has begun the information collection process to set comparable methane limits on existing operating wells.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434301&vname=dennotallissues&fn=92434301&jd=92434301

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States Lead on Regulating Gas Flaring, Venting, Leaks

Jun 23, 2016 | BNA Daily Environment Report

By Tripp Baltz

In the summer of 2014, flare stacks with billowing, fiery plumes rose out of the ground above the Bakken Formation in western North Dakota like gigantic metal candles, burning unwanted methane gas at a rate of 375 million cubic feet a day—enough to meet the average daily needs of nearly 2 million homes.
Horizontal drilling and hydraulic fracturing had made it possible to extract previously inaccessible oil resources trapped within tight shale rock deep under the 18,000-square mile field, estimated to hold as many as 7.4 billion barrels of crude oil. The boom in oil drilling led to increased volumes of associated gas, the natural gas that comes up out of the well along with the crude.
New oil production was spreading faster than companies could install the infrastructure to gather, process and transport the gas, so instead they burned it up—at a rate more than one-third of North Dakota's total natural gas production. The national rate is less than 1 percent.
At a meeting of the Western Governors Association in Colorado Springs in June 2014, North Dakota Gov. Jack Dalrymple (R) said he was “embarrassed to say” producers in his state were wasting that much gas. “The problem is the [Bakken] play is not for natural gas, it's for oil,” he said. Oil is worth more and the infrastructure needed to capture natural gas requires “investments that are hard to put into place.”
Targeted Reductions
To reduce the waste, and advance the build-out of gas pipelines and other infrastructure, Dalrymple said at the time that North Dakota had just passed tough new requirements for the industry. He touted rules by the North Dakota Industrial Commission that took effect June 1, 2014, establishing phased-in flaring reduction targets with an initial goal of flaring no more than 26 percent of the state's produced gas by the fourth quarter of 2014, ultimately reducing it to under 10 percent by 2020.
The rules worked. The flaring rate in North Dakota is now 9.7 percent, meaning the industry reached its initial goal more than four years ahead of schedule. The commission has now set a new goal of 9 percent by 2020.
North Dakota is one of several states that has tightened its regulations recently on flaring and venting—the direct release of natural gas into the atmosphere. In the past three years many of the largest crude oil and natural gas producing states have approved new rules governing flaring and venting volumes and time limits, as well as new requirements for leak detection and repair (LDAR), with the aim of reducing overall fugitive emissions of methane, a potent greenhouse gas.
In approving or upgrading their rules, states cite the need to reduce greenhouse gas emissions from the industry as well as to prevent waste of a natural resource that could be used or sold.
“I think most people would agree that we should be using our nation's natural gas to power our economy – not wasting it by venting and flaring it into the atmosphere.”
—Sally Jewell, Interior secretary
Glowing Like a City at Night
Individual oil and gas states have significant problems with fugitive methane losses. A recent study by the University of Michigan showed the Bakken field, which spans part of Montana in addition to North Dakota, leaks ethane, another component of natural gas, at a rate of 250,000 tons a year, enough to be detected by atmospheric monitors in Europe. At night, the light from flaring in western North Dakota resembles a large American city from space.
In 2014 New Mexico's oil and gas producers reported wasting more than 180,000 metric tons of methane—enough to heat more than 168,000 homes each year—according to the Environmental Defense Fund, citing data reported to the EPA. The lost gas represents some $42.7 million in lost royalty revenue since 2009, according to the May 2014 Western Values Project “Up in Flames” report, an analysis of fugitive emissions from oil and gas activities.
Because the American public owns the gas produced on public lands, “oil and gas companies avoided at least $54-$64 million in royalty payments owed to taxpayers that go to fund federal, state and local needs,” the report said.
States generally require that leaks be detected by the use of either a “Forward Looking Infra Red (FLIR)” camera or by an analyzer meeting EPA standards (Method 21). Regulators say operators can offset the cost of compliance by selling the gas they capture or using it as an energy source at their facilities in the field.
‘Incredibly Short-Sighted.'
“It's incredibly short-sighted and wasteful to be flaring a valuable resource,” Jill Morrison, organizer with the Powder River Basin Resource Council in Sheridan, Wyo., told Bloomberg BNA. But in Wyoming, she said, producers “can't just flare indefinitely—they have to have a plan to capture the gas.”
“I think most people would agree that we should be using our nation's natural gas to power our economy—not wasting it by venting and flaring it into the atmosphere,” Interior Secretary Sally Jewell said in a statement.
The federal government also has moved to reduce fugitive gas emissions from the oil and gas sector. The Environmental Protection Agency in May released regulations requiring producers to control methane leaks from new facilities, and the Interior Department's Bureau of Land Management was scheduled to release a final rule (RIN:1004-AE14) in November to reduce flaring, venting and leaking of natural gas from onshore fields and pipelines on federal and Indian lands.
A federal judge in Wyoming June 21 set aside a BLM federal hydraulic fracturing rule, a separate regulation from its proposed rule on flaring, venting and leaks. Judge Scott Skavdahl of the U.S. District Court for the District of Wyoming ruled Congress has not delegated to the Interior Department the authority to regulate fracking, and the BLM's effort to do so is in excess of its statutory authority. It was unclear whether the decision would have any effect on the BLM's venting and flaring proposed rule.
State rules are as important as federal regulations, if not superior to them, sources told Bloomberg BNA.
“The BLM rule will help, but there has to be better enforcement from BLM, so it's really important we have our own state rules,” Morrison said. Flaring and venting authorized under the Wyoming Oil and Gas Conservation Commission's rules, which were amended in April, must be reported monthly to the commission supervisor. “Sometimes the state rule is stronger and has gone farther.”
‘States Catch a Lot.'
An oil company might have a BLM permit to recover federal minerals but drill for it from a wellpad that is not on federal land, she said. “In Wyoming, if a company like Chesapeake wants to drill a federal well, they have to get permits from the state,” she said. “It creates a much stronger system of checks and balances. There's a lot that the BLM will ignore that the state will catch.”
“Colorado's robust, cost-effective LDAR program for components at well production facilities and natural gas compressor stations achieves similar or greater emission reductions than the proposed BLM LDAR program,” said Will Allison, director of the Colorado Air Pollution Control Division and Matt Lepore, director of the Colorado Oil and Gas Conservation Commission in April 22, 2016, comments on the BLM proposed rule.
“Colorado believes that requiring its oil and gas industry to comply with the proposed BLM rule in addition to Colorado's LDAR program could result in considerable administrative effort for all parties for little, if any, demonstrated environmental benefit,” they said.
“Colorado's robust, cost-effective LDAR program for components at well production facilities and natural gas compressor stations achieves similar or greater emission reductions than the proposed BLM LDAR program.”
—Will Allison, director of the Colorado Air Pollution Control Division and Matt Lepore, director of the Colorado Oil and Gas Conservation Commission in April 22, 2016, comments on the BLM proposed rule
Most flaring, venting and LDAR rules target fugitive releases, whether intentional or unintentional, of methane, a potent greenhouse gas with a global warming potential more than 25 times greater than that of carbon dioxide. Nearly one-third of methane emissions in the U.S. comes from oil production and natural gas production, transmission and distribution, according to the EPA. In April 2016, the EPA, in its 2014 greenhouse gas inventory, said the sector's methane emissions are 34 percent higher than the agency's previous estimates, with the industry pumping more than 9.8 million metric tons of pollution into the atmosphere each year.
Biggest Single Source of Methane
The new data mean the industry is the biggest single source of U.S. methane emissions, bigger than other sources such as livestock feedlots, wetlands, landfills and coal mines.
State rules to address the problem are better than the “one-size-fits-all” approach of the EPA rule and the BLM proposed rule, the North Dakota Petroleum Council said in comments on the BLM's proposed rule.
Environmentalists disagree, and say federal rules are needed.
“National rules are needed because this is a national problem,” Andres Restrepo, a staff attorney with the Sierra Club in Washington, D.C., told Bloomberg BNA. “Indeed it's a global problem, since it deals with climate change. It's fantastic that some states have taken the lead, but if this is going to be successful, it needs a national strategy that is going to take hold in all the states and provides a level playing field.”
Assess Royalties
A key element of the BLM proposed rule is that it would assess royalties on producers for leaks as well as associated gas that is vented or flared, Morrison told Bloomberg BNA. State rules generally do not have that provision, she said. In many states, for example, Colorado, royalties are assessed on what companies sell, not on what they produce.
“Wyoming at its state land office took some steps to collect state level royalties off flared gas, but no one has gone to the level that BLM has proposed,” Jon Goldstein, senior energy policy manager with the Environmental Defense Fund in Boulder, Colo., told Bloomberg BNA.
The EPA's final rule targeting reductions in methane, volatile organic compounds (VOCs) and toxic air emissions in the oil and natural gas industry was published June 3 in the Federal Register. Also June 3, EPA published a notice saying it is soliciting public comments on a Draft Information Collection Request to require oil and natural gas companies to provide extensive information needed to develop regulations to reduce methane emissions from existing oil and gas sources. The comment period on the draft ICR is open until Aug. 2.
‘Necessary Evil.'
“I think of flaring as a necessary evil, although it's better than venting—it's better to combust it rather than just allowing it to escape into the atmosphere,” Goldstein said. “Uncombusted methane is a very, very problematic natural gas, about 80 times more potent pound for pound than carbon dioxide.
“But flaring's still a problem,” he added. “Taxpayers are not getting their return, and this is a private mineral right subject to royalties and taxes. Even through flaring might be better, it's still a waste.”
With assistance from William Carlile in Phoenix, Leslie Pappas in Philadelphia, Carolyn Whetzel in Los Angeles, and Mark Wolski in Minneapolis.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434269&vname=dennotallissues&fn=92434269&jd=92434269

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Oil Industry Pleads for Arctic Drilling Option

Jun 23, 2016 | The Hill - E2 Wire

By Timothy Cama

The oil industry is pleading with the Obama administration not to completely take Arctic offshore drilling off the table for the next five years.
Industry groups and environmentalists, among others, made it clear in comments filed last week with the Interior Department that with Atlantic coast drilling out of the picture, they are turning their focus to the debate over the Arctic.
“Access to oil and natural gas resources in the Alaska [outer continental shelf] under balanced and science-based regulations is an essential part of the nation’s long term economic and energy security,” a coalition of industry groups, including the American Petroleum Institute and the Independent Petroleum Association of America, wrote to the Interior Department.
“America’s Alaska [outer continental shelf] can make an important contribution to sustaining our nation’s overall crude oil supplies at a time in the future when Lower 48 production — now flourishing due to industry’s development of technologies to extract oil and natural gas from shale, tight sandstone and other formations previously thought to be non-economic — is projected to be in decline,” it said.
A group of Alaska-based business and labor organizations agreed.
“A strong Alaskan economy is not simply effected [sic] by the development of the Arctic OCS — it is dependent upon it,” the group said. “Our state’s oil fields have matured over the years, and it is vital that new arenas and development opportunities are realized for the future economic security of our state.”
The defense of Arctic drilling comes despite significant obstacles to production, including a lack of market interest, hurdles from the Obama administration and fierce political opposition.
President Obama is in the process of deciding whether to allow three auctions of drilling rights in the Chukchi and Beaufort seas north of Alaska during the 2017 to 2022 planning period. It’s part of the process by the Interior Department’s Bureau of Ocean Energy Management (BOEM) to map out its schedule for drilling rights sales around the country during that time period.
The plan would significantly tie the hands of Obama’s successor, because any additional lease sales that a future president wants to authorize would require a full, time-consuming revision to the five-year plan that could be subject to litigation.
In the latest update to the plan, released in March, Obama reversed his proposal from a year earlier to allow drilling in the Atlantic Ocean. Officials still want to have numerous lease sales in the Gulf of Mexico, one of the most developed offshore drilling areas in the world.
Without the Atlantic, the Arctic is the only frontier where the oil industry has an opportunity to produce oil and gas in a new offshore area, so companies and groups are fighting to preserve it.
Oil companies have shown an eagerness to get into the Arctic, though their plans have stalled for now.
Royal Dutch Shell last year drilled the first exploratory well in the Arctic’s outer continental shelf in years but abandoned it at the end of the summer and said it has no plans to try again soon. Shell concluded that the costs of Arctic drilling do not outweigh the benefits when oil prices are so low.
Concerns about falling oil prices have spurred numerous oil companies to abandon their lease rights.
But those withdrawals and the economic factors behind them aren’t the end of the story for Arctic drilling, and oil companies want to reserve the right to try again in the future.
Statoil, a Norwegian state-owned oil company that exited Alaska in November, is lobbying for future Arctic lease sales.
“Statoil is pleased that BOEM continues to recognize the importance of Alaskan [outer continental shelf] exploration and development,” the company wrote. “Statoil believes that the three proposed Alaska [outer continental shelf] lease sales should be maintained without further access restrictions.”
When Interior kept the Arctic in the most recent version of the plan, the agency said any drilling activity would be subject to strict new environmental, climate and safety considerations, which the industry is trying to fight.
Environmentalists, meanwhile, are turning their attention to the Arctic after scoring a big win on the Atlantic.
Greens have fought hard for years against Arctic drilling, warning of the possibility of major oil spills in a harsh and unforgiving environment. They also argue that the oil and gas produced in the region would be catastrophic for climate change.
“This administration now has the opportunity and obligation to think holistically about the future of the Arctic region and to ensure that decisions prioritize the health of ocean ecosystems, proven response capacity, and a sustainable energy future,” wrote Oceana. “Removing the Chukchi and Beaufort seas from the 2017-2022 Five-Year Program is one important step to furthering those goals.”
The Natural Resources Defense Council said the administration ought to permanently block drilling in the Chukchi and Beaufort seas.
“New oil and gas leasing from America’s OCS is surplus to our energy needs, if we are to come anywhere close to the agreed-upon path to containing climate change below catastrophic levels,” the group said. “We cannot burn it without promoting catastrophic climate outcomes.”
In all, Interior received more than 2,000 comments on the five-year plan. It plans to review them and publish a final schedule by the end of the year.
http://thehill.com/policy/energy-environment/284546-oil-industry-pleads-for-arctic-drilling-option

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Chemical Security News

Lawmakers Propose $11 Million for Chemical Safety Board

Jun 23, 2016 | BNA Daily Environment Report

The Chemical Safety and Hazard Investigation Board should receive $11 million for fiscal year 2017, Senate and House appropriations committees recommended (H.R. 2822, S. 1645).
The $11 million in spending is the same the CSB had for FY 2016. The White House asked for $12.4 million.Unlike the budget for the Occupational Safety and Health Administration, which is set by committees with spending oversight of the Labor Department, the CSB appropriation is set by committees overseeing budgets for the Environmental Protection Agency and Interior Department.The CSB money may come with strings attached. The House bills propose several riders, including mandates for the CSB to:• justify a request to organize an annual symposium on innovation in chemical safety,• explain the scope and need for a study on land use and facility siting and• not produce videos that encourage the public to lobby Congress and state governments on legislative issues.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92434279&vname=dennotallissues&fn=92434279&jd=92434279

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Transportation News

Crude-by-Rail Advance Notice Coming in Washington

Jun 23, 2016 | BNA Daily Environment Report

By Paul Shukovsky

A draft crude-by-rail advance-notification rule in Washington hit the limits of what a state can do in the face of federal preemption of state regulation, an oil spill program manager said June 21 at a Pacific States/British Columbia Oil Spill Task Force meeting.
Washington state's ability to create rail safety rules, like that of any state seeking to impose tighter safety standards and rules on railroads, is sharply circumscribed under federal law, which gives the Federal Railroad Administration such regulatory authority. That led Washington Department of Ecology Spill Program Manager Dale Jensen to tell colleagues assembled in Seattle that state regulators would receive “very limited information” from railroads under the draft rule.
“In our state, we have pushed as far as we think we can up against federal preemption. Our state has been very good at figuring out what we can do at the state level and pushing up against federal authorities and encouraging strongly our federal partners to take action,” Jensen told Bloomberg BNA in an interview.
Deadline Looming
The draft notification rule and two others involving oil spill contingency plans will be effective October 1, Jensen said. Under provisions of the notification rule, owners and operators of a facility such as one of the state's five refineries that will receive crude oil from railroad cars will have to provide the ecology department with advance notice of all scheduled deliveries. The draft rule requires revealing the crude's origin and specific gravity, which measures whether it will float or sink in water.
From the audience, Port of Seattle Commissioner Fred Felleman—who is also Northwest consultant to Friends of the Earth—questioned whether that is enough information. “We've got a lot of different species of crude coming in these days,” Felleman said. Given that many specific characteristics of the crude are not required to be revealed by the draft rule, Felleman asked: “How can the state feel prepared to effectuate a response if these data are not afforded and why aren't they included in the rule?”
“It's a good place to start,” Jensen replied. “It's a whole lot more information than we have right now.” He told Bloomberg BNA during a break in the meeting: “There's very comprehensive information on the transfers from ships coming in; but on the rail side it's very limited in our proposed rule. And that was very specifically defined in our state law,” he added, referring to a bill that passed in 2015, ESHB 1449 .
‘Bakken Explodes—Tar Sands Sink.'
Felleman told Bloomberg BNA outside the conference hall that “given the unique nature of these new fuels—Bakken explodes and tar sands sinks—without having fine resolution of the type of crude oil, it completely hinders the state in effectuating an appropriate response.” Felleman pointed out that substances added to the crude to facilitate transport should also be reported.
Frank Holmes of the Western States Petroleum Association told Bloomberg BNA during a break in the meeting that with the new rule, which requires reporting of specific gravity, “the agency will have the information they need to do their response. On the notification piece, we worked closely with the Department of Ecology and Dale and his group to work through the specific language that's in that proposed rule and we will comply with that.”

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Oregon Senators Call for FRA Emergency Order to Stop Oil Train Traffic

Jun 22, 2016 | PoliticoPro - Whiteboard

By Jennifer Scholtes

Oregon's senators are again calling on the FRA to halt oil train traffic through the Columbia River Gorge until the agency determines the cause of this month's tanker crash.
In a letter today to Administrator Sarah Feinberg, and Sens. Jeff Merkley and Ron Wyden requested that the agency use emergency order authority to ban trains carrying crude oil and other hazardous materials from traveling through the gorge until the agency pens its final investigative report on the fiery derailment.
The senators also want train traffic through the region to be paused until steps have been taken to make sure this is the last time such an accident happens there. And they want speed restrictions and more track inspections on that swath of rail.
“In Oregon, and the Columbia River Gorge, in particular, there are unique reasons for additional safety measures,” the senators write. “The Gorge has unique environmental, economic, cultural and tribal importance. Unit trains travel on tracks that pass through and near many small towns that are not well-equipped to deal with the type of fire that occurred in Mosier.”
The lawmakers are asking Feinberg to look into several specific questions they have about the Mosier derailment, including why recent rail inspections failed to detect a broken “lag bolt” thought to have caused the derailment and what safeguards would help prevent lag bolts from failing.
Merkley and Wyden earlier this month joined Reps. Earl Blumenauer and Suzanne Bonamici, as well as Gov. Kate Brown, in calling for DOT to look for other routes that would put fewer of their state’s residents at risk.
https://www.politicopro.com/energy#

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Obama Signs Pipeline Safety Bill Into Law

Jun 23, 2016 | BNA Daily Environment Report

President Barack Obama today signed into law legislation that would reauthorize the Pipeline and Hazardous Materials Safety Administration through fiscal year 2019, as well as give the Transportation Department authority to issue emergency orders in the event of a spill or other accident.
The PIPES Act (S. 2276) also sets new federal minimum safety standards for underground natural gas storage facilities, increases inspection requirements for certain underwater oil pipelines and ensures the agency completes unfinished rulemakings required in the 2011 reauthorization legislation.
The Senate passed the bill, called the Protecting our Infrastructure of Pipelines and Enhancing Safety Act, by unanimous consent June 13 with the support of groups representing pipeline operators such as Dominion Transmission Inc. and Cheniere Energy Inc.

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Obama Signs Safety Legislation

Jun 22, 2016 | E&E News PM

By Hannah Hess

President Obama signed into law today a bill to extend the federal pipeline safety program within the Pipeline and Hazardous Materials Safety Administration through fiscal 2019.
The Protecting Our Infrastructure of Pipelines and Enhancing Safety Act, S. 2276, directs the agency to prioritize implementation of 42 mandates required in its last authorization before initiating new rules and requires the Department of Transportation to develop minimum safety standards for underground natural gas storage facilities.
In the wake of a devastating methane leak in a Los Angeles neighborhood, California lawmakers said the new law will ensure that regulators apply lessons learned to protect the country from future environmental disasters. The October-through-February methane leak helped spur action from Congress.
The law also gives PHMSA its first-ever authority to halt pipeline operations or take other steps if certain practices or situations creating an "imminent hazard" are detected.
Rep. Lois Capps (D-Calif.) hailed it as an important "first step." The law includes key provisions she authored in direct response to a corroded pipeline that leaked 123,000 gallons of crude along Refugio Beach last summer.
"This new law will help protect the health and safety of communities and environments across the nation by holding the energy industry accountable," Capps said. "It will do so by raising the safety standards for pipelines and implementing lessons learned from past accidents in order to prevent future spills such as examining the causes of corrosion, as we saw with the [Plains All American Pipeline LP] spill, and the best way to prevent it."
Capps said she will continue to push for policies that will further strengthen pipeline safety, as well as those that encourage the use of clean, renewable energy sources. That includes a measure (H.R. 5443) designed to empower people affected by spills and leaks to sue PHMSA (Greenwire, June 10).
Industry groups applauded Obama's signing of the bill.
Don Santa, president and CEO of the Interstate Natural Gas Association of America, said the measure would complement the industry group's efforts.
"Members of the interstate natural gas pipeline industry are already hard at work building on Congress' efforts to enhance the nation's pipelines through an aggressive safety program, anchored with an overarching goal of zero pipeline incidents," Santa said.
http://www.eenews.net/eenewspm/2016/06/22/stories/1060039246

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Environment News

EPA Agrees to Deadlines for Action on State Ozone Plans

Jun 23, 2016 | BNA Daily Environment Report

By Andrew Childers

The Environmental Protection Agency has agreed to a series of deadlines to take action on plans for six states to implement the “good neighbor” provisions of federal air quality standards for ozone (Sierra Club v. McCarthy, N.D. Cal., No. 3:15-cv-04328, settlement filed 6/21/16).
A proposed consent decree, filed June 21 in the U.S. District Court for the Northern District of California, would resolve a lawsuit brought by the Sierra Club alleging the EPA had failed to perform is mandatory duty to either approve or disapprove the state plans to implement the Clean Air Act's “good neighbor” provision as part of their efforts to implement the national ambient air quality standards for ozone set in 2008 (RIN:2060–AN24).
Section 110(a)(2)(D) of the Clean Air Act requires states to take steps to control emissions of ozone precursors such as volatile organic compounds and nitrogen oxides to prevent those emissions from degrading air quality in downwind states.
Proposed Consent Decree Deadlines
Louisiana
• Prongs 1 and 2 by Aug. 1
• Prong 3 by Oct. 3
• Prong 4 by Dec. 15, 2017
New Jersey
• Prongs 3 and 4 by Sept. 30
New York
• Prongs 1, 2 and 4 by Aug. 15
• Prong 3 by Nov. 1
Wisconsin
• Prongs 1 and 2 by Aug. 1
• Prong 3 by Dec. 16
Wyoming
• Prongs 1, 2 and 4 by Nov. 18
• Prong 3 by Sept. 30
California
• Issue a federal plan or approve an adequate state plan for monitoring emissions by Dec. 15, 2017.
• Issue a federal plan or approve an adequate state plan delineating emergency powers to control emissions sources by Sept. 23.
• Take action on a plan for the Northern Sonoma Air District by Dec. 16.
• Take action on a plan for the Mendocino Air District by March 15, 2017.
• Take action on a plan for the North Coast Air District by March 15, 2017.
The proposed consent decree would set a schedule for the EPA to take action on various components of the good neighbor plans for California, Louisiana, New Jersey, New York, Wisconsin and Wyoming. The Clean Air Act requires that the good neighbor plans include four provisions, known as “prongs.”
The prongs are: (1) provisions to prevent any emissions activity in one state from degrading air quality in downwind states, (2) provisions to prevent interfering with continued compliance with the federal air quality standards in another state, (3) provisions ensuring emissions from one state to do not interfere with steps another state is taking to prevent significant deterioration of air quality, and (4) provisions to prevent interfering with downwind states' measures to protect visibility.
Series of Deadlines
The proposed consent decree would set a series of deadlines for the EPA to take action on those four prongs as part of the state plans. The EPA has already disapproved California's plan, so the proposed consent decree includes a schedule for the EPA to either approve a revised plan for the state and three air quality districts or issue a federal plan to implement the ozone requirements.
The Sierra Club sued the EPA in 2015, alleging the agency had failed to take action to approve or disapprove the state plans within 12 months of deeming them administratively complete. The EPA had deemed the plans complete in 2013, according to the group's lawsuit.
The proposed consent decree must be published in the Federal Register for public comment and then approved by the court judge before it can take effect.
Boulder, Colo., attorney Robert Ukeiley represented the Sierra Club, while the EPA was represented by the Justice Department.

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GOP Critics Slam McCarthy on 'Suspect Science' Behind Rules

Jun 23, 2016 | E&E Daily

By Amanda Reilly

House Republican critics of U.S. EPA yesterday used a hearing in the Science, Space and Technology Committee to pepper Administrator Gina McCarthy with a barrage of questions on agency regulations.
The hearing, titled "Ensuring Sound Science at EPA," gave GOP critics the opportunity to question the administrator on everything from the agency's climate change rules to water regulations to the review of the carcinogenicity of the herbicide glyphosate.
Chairman Lamar Smith (R-Texas) alleged that the agency frequently uses "suspect science, questionable legal interpretations and flawed analysis" to craft expansive and expensive environmental rules.
He also charged that EPA had failed to provide requested data to the committee on agency regulations.
"The Environmental Protection Agency has become an agency in pursuit of a purely political agenda rather than an agency that protects the environment," Smith said. "EPA's political agenda is to rearrange the American economy, instituting command and control by the Obama administration."
Republicans far outweighed Democrats at the hearing. Only three Democrats spoke in defense of EPA during the 2½-hour hearing, the rest choosing to instead attend the sit-in with their colleagues on the House floor to try to force a vote on gun legislation (see related story).
EPA regulations are "balanced and progressive," ranking member Eddie Bernice Johnson (D-Texas) said at the outset of the hearing.
Johnson slammed her GOP colleagues for launching 12 separate investigations of EPA rules during this Congress. According to Johnson, EPA has already delivered more than 15,000 documents spanning 139,000 pages to the Science Committee in response to those investigations.
"I don't know to what end. Does anyone even read it when it gets here?" Johnson said. "The sum total result of all this committee oversight can be measured more in press releases than in any concrete findings that can justify the time and resources EPA has had to spend in order to satisfy the majority's demands."
The issues raised at the hearing were similar to those raised at a wide-ranging hearing last July -- the last time McCarthy testified in front of the full Science, Space and Technology Committee.
As it did in July, EPA's Clean Power Plan, through which the agency is requiring states to develop plans to reduce carbon dioxide emissions from existing power plants, figured prominently at yesterday's hearing.
The Supreme Court in February stayed the plan pending the resolution of complex litigation. McCarthy defended it and other EPA regulations, saying that science and the law "[serve] as the backbone of each of the agency's actions."
But Republicans maintained that the rule will cause economic doom and raise electricity prices.
Smith cited numbers from a Chamber of Commerce analysis of the U.S. Energy Information Administration's latest annual energy outlook that shows the Clean Power Plan would slow economic growth and lead to thousands of job losses.
At one point in the hearing, Rep. Gary Palmer (R-Ala.) showed McCarthy a video of families and workers in his district talking about their struggles with finding jobs and getting their children through college.
"There's a price to pay for this," Palmer said.
The EIA report also showed that average retail electricity prices in the late 2020s would be 3 percent higher than without the rule in place. The report, however, also said that electricity prices would fall back to normal by 2040.
While Johnson said that EPA has been responsive to the committee's document requests, Rep. Dana Rohrabacher (R-Calif.) painted a different story. He said that, since August 2015, the committee has sent 10 letters to McCarthy containing 35 total requests; of those, Rohrabacher said that EPA has sent back four replies and "only one was fully responsive."
"Do you consider that compliance with our lawful authority as a legislative oversight of your agency," Rohrabacher asked.
McCarthy said she would like to respond to committee requests for documents "more quickly" but that her agency was overloaded by congressional requests for information.
"I will assure you that we are doing everything we can to respond to your requests in a timely way," McCarthy said. "I know that we continue to do searches that are necessary. It is very challenging -- the amount of requests we receive from this committee and others."EPA questioned on glyphosate report
Republicans also used yesterday's hearing to question McCarthy about EPA's decision to take down a report from its website that downplayed the cancer risk of glyphosate, a commonly used farm chemical.
That finding contradicted a 2015 report by the International Agency for Research on Cancer (IARC) that found a possible link to cancer, as well as a study in 2008 by Swedish researchers finding that glyphosate increased the risk of small lymphocytic lymphoma.
EPA published the report by its Cancer Assessment Review Committee on April 29; it vanished from the agency's website May 2.
Over the past month, lawmakers have questioned EPA's motivations for removing the 87-page report dated Oct. 1, 2015, despite it being marked "final."
Rep. Frank Lucas (R-Okla.), who served as chairman of the House Agriculture Committee last Congress, yesterday pressed McCarthy for answers.
"Why did EPA wait several months to post the report marked 'final' but then removed it?" Lucas asked.
Lucas said that the removal from the website raised concerns that high-ranking officials at the agency made a "post-science decision that changed the outcome of the scientific work" and overruled the original decision to post the report.
McCarthy called the situation "extremely unfortunate" but said that nothing untoward occurred.
She said the report was not meant for public view and that it was marked "final" because it was a final review from the cancer assessment committee -- but not a final agency document.
"It was unfortunate that it was mistakenly released by a contractor because it is still in review by the agency," McCarthy said, "and when we have an issue that's as important as glyphosate is to the agricultural community, we want to make sure that we get the science right."
EPA has long since missed a target date of July 2015 for publishing its findings on glyphosate and cancer. McCarthy said that the report would "ultimately be made public" and estimated that the final report will be available this fall.
http://www.eenews.net/eedaily/2016/06/23/stories/1060039270

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NAFTA Environmental Text Differs from TPP Approach

Jun 23, 2016 | BNA Daily Environment Report

By Emily Pickrell

As the debate continues over the environmental protections the Trans-Pacific Partnership will provide, some of the most relevant information may come from the results produced by its predecessor, the North America Free Trade Agreement.
Both the partnership and the North American agreements contemplate giving citizens the right to report environmental violations related to trade, but the process for doing so differs significantly.Under the North American approach, the Montreal-based Commission for Environmental Cooperation—an organization dedicated to environmental cooperation and enforcement in the three countries—reviews complaints of environmental violations, known as citizen submissions.
The commission has no enforcement power beyond publishing the factual records and requesting a response from the respective government. Bringing such environmental issues into the public sphere, however, can put pressure on the alleged violator, according to Rodrigo Garcia Galindo, the director of international legal affairs for the Mexican Environmental Ministry.“The CEC provides for public shaming, and it generates public debate and public discourse and incremental change,” Garcia said. “The factual records are a powerful form of debate and discussion in economic policy—they put a spotlight on certain issues that are worrisome in the environment.”The factual records also allow local communities to provide input on the impact that businesses' trading may have on them, according to Robert Moyer, the director of submissions on enforcement matters at the commission.“It is a transparent process and promotes public participation to ensure that the public has a role in determining whether a country is successfully upholding its environmental laws,” Moyer said.Sumidero CanyonOne such factual report focused on a conflict over the operations of a rock quarry company in the Sumidero Canyon National Park, which was declared a protected natural area in 1980, 15 years after the rock quarry company, Cales y Mortero's, began its operations.In 2002, a local organization began pressuring the government to uphold local noise and air emissions regulations. While the local and state governments took steps to end the use of dynamite blasts and required the company to take other corrective measures. Alejandra Aldama, a spokeswoman for the Committee for the Betterment of Ribera Cahuare, said that starting the citizen submission process with the commission in 2011 helped move the process forward.“We think that it is very important that an independent organization, one that is separate from our own government, has taken an interest doing the investigations over the situation that Mexican officials simply were not doing,” Aldama said.These submissions, which can be made by any citizen of any of the North American countries, are first reviewed by the Secretariat, and the issue is then voted on by the council to decide whether it will be followed up with a research report, known as a factual record.Shortly before the factual record investigation began in 2014, the company announced plans to move its operations to a new site by 2019. Since that time, the company and the Ribera Cahuare organization have agreed to sit down together with local government officials to come to agreement on the exact timeline for the move.Despite some disagreement with Ribera Cahuare over the exact details of whether needed permits had been in place, representatives of Cales y Morteros agree that the factual record gave both sides an opportunity to express their side of the story and to try to come to a resolution.“The factual report was helpful in documenting the facts,” said Luigi Pontones, an environmental attorney representing Cales Y Morteros. “The perception of the company had been completely negative, because it is did not react directly to accusations by local groups and in the press. The factual helped explain the reality of the company against all the complaints, both legitimate and illegitimate. It gave us the opportunity to raise our voice. It was very helpful in this sense–and it was very objective.”Shame Versus SanctionsOthers point out the limitations of the factual records, which contain information behind reports of non-enforcement, but which do not come to any final conclusions or allow the commission to take any enforcement actions based on their findings.“The jury is still out on whether factual records work or not—it is unrealistic to get anything like a court in which governments are forced to come up to speed,” said Aaron Cosbey, a senior associate with the International Institute for Sustainable Development. “But the idea is that you could shame a government by coming up with a report that they are not living up to their own environmental standards.”Requests Under TPPUnder the TPP, citizens can still submit requests to have violations investigated, but these requests must come from the citizen of the country and are handled first by the country in question. Based on the response, it is then followed up by the environmental committee, rather than an independent secretariat.The Trans-Pacific Partnership would provide a greater potential to follow up on environmental violations by allowing for trade sanctions, a feature that has become part of the other recent trade agreements.Yet critics argue that the inherently political nature of the committee, combined with its infrequent meetings, will mute any potential benefit.“Under NAFTA, the Secretariat was given explicit and implicit authority to act as an independent body,” said Ben Beachy, a senior policy advisor for responsible trade at the Sierra Club. “Now you don't have an independent party. It undercuts the narrative that the TPP is an environmentally friendly agreement—in some ways it takes significant steps back from prior agreements.”Others view the changes as a more cooperative approach, designed to acknowledge the limitations of an international trade body trying to police its members.“This is a trend towards a more voluntary mechanism for regulatory compliance, rather than command and control,” said Elizabeth Trujillo, a professor of international trade law at Suffolk University Law School, noting that similar approaches were used in a trade agreement between the U.S. and Colombia. “We are seeing that type of language more and more in the bilateral agreements. It is not surprising that it would be in the TPP.”As for local activists in countries with poor environmental track records, they say that an international presence plays an invaluable role in keeping local governments engaged.“Mexico has made agreements with other countries over how it would enforce its environmental protections,” Aldama said. “But when we, as citizens, brought up the issue of environmental laws being violated, Mexican officials either did nothing or took half-hearted steps to address the situation.”
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EPA Finalizes Changes to Incinerator Regs

Jun 22, 2016 | E&E News PM

By Sean Reilly

U.S. EPA is moving ahead on a final roster of changes to its emissions standards for commercial and industrial solid waste incinerators.
The changes come in response to industry reconsideration petitions and affect such issues as the definition of a kiln and particulate matter limits, according to a final rule scheduled for publication in tomorrow's Federal Register.
EPA first issued the New Source Performance Standards and emissions guidelines for incinerators in 2011 and revised them in 2013. Agency employees had previously projected that they would cut releases of carbon monoxide, hydrogen chloride, mercury and other pollutants by about 30,000 tons annually.
The rules are the target of a battery of competing lawsuits filed by industry and environmental groups with the U.S. Court of Appeals for the District of Columbia Circuit. A three-judge panel held a consolidated oral argument on those suits -- as well as legal challenges to EPA regulations on "major source and "area source" boilers -- in December, but has not yet announced decisions in any of those cases.
http://www.eenews.net/eenewspm/2016/06/22/stories/1060039243

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