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acc AM Feb 20
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(ACC Mentioned) Scientists Convened by Chemistry Council Attack CHAP Report on Phthalates in Toys
Feb 20, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Chronic Hazard Advisory Panel's 2014 report overestimated the effects of phthalates on human health, particularly their suspected ability to block activity of the male androgen hormones, according to a group of scientists. Christopher Borgert, president and principal scientist at Applied Pharmacology and Toxicology Inc... -
(ACC Mentioned) Listing of Two Common Industrial Solvents In UN Narcotics Treaty Set for March Vote
Feb 20, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The use of two industrial solvents commonly used by the makers of electronic goods and plastics would effectively be eliminated if countries vote in March to add the chemicals to the 1971 UN Convention on Psychotropic Substances. The World Health Organization has recommended two chemicals—1,4-butanediol... -
(ACC Mentioned) Chemical in Plastics May Affect Boys' Future Fertility
Feb 19, 2015 | HealthDay (in CBS News)
By Steven Reinberg
When expectant mothers are exposed to plastics chemicals called phthalates during the first trimester, their male offspring may have a greater risk of infertility later in life, a new study suggests. Boys exposed to the chemical diethylhexyl phthalate (DEHP) may be born with a significantly shorter anogenital... -
(ACC Mentioned) US Consumer Products Safety Commission Likely to Expand Phthlate Ban
Feb 19, 2015 | Plastics News
By Gayle S. Putrich
Phthalates used in plastics destined for children's toys and child care items will likely get a new, more stringent federal safety regulation even though scientists say the report used to make the decision is flawed. The proposed rule from the U.S. Consumer Products Safety Commission also would expand existing law to include... -
(ACC Mentioned) Linde's Illinois Plant Receives Responsible Care® Certification
Feb 19, 2015 | 4-Traders
Linde LLC has received certification of its Hartford, Illinois, air separation plant under the American Chemistry Council's Responsible Care® program (see also Linde North America). Kevin Conner, production manager for the Hartford plant, said, "The Responsible Care Certification is a measure of our Hartford colleagues' commitment... -
More Time for Input on Toluene Diisocyanates Rule
Feb 20, 2015 | BNA Daily Environment Report
Makers of chemicals, furniture and other products, environmental health organizations and other parties will have until April 30 to comment on a proposed rule that would give the Environmental Protection Agency oversight over new consumer uses of seven toluene diisocyanates (TDI) and related compounds. -
US EPA Extends Consultation on Toluene Diisocyanates Snur
Feb 20, 2015 | Chemical Watch
The US EPA has extended to 30 April the comment period on the proposed significant new use rule for toluene diisocyanates (CW 9 January 2015). The original deadline was 16 March. -
Proposed CPSC Nanotechnology Center Would Study Consumer Health Risks
Feb 20, 2015 | BNA Daily Environment Report
By Rebecca Kern
The use of nanotechnology in consumer products continues to grow each year, prompting the CPSC to seek funding to expand research into the health effects of the tiny particles in goods sold to consumers. “Our understanding is that nanotechnology is very prevalent and it's not well-labeled,” Consumer Product Safety Commission... -
General Mills To Remove Antioxidant BHT From Its Cereals
Feb 19, 2015 | Chemical & Engineering News
By Melody M. Bomgardner
In the wake of a campaign by the controversial blogger Vani Hari, who goes by the name Food Babe, General Mills says it is removing the antioxidant butylated hydroxytoluene (BHT) from its cereals. The action is the latest to be trumpeted by Hari, who is not a scientist but whose blogging about food additives has the ability... -
Demystifying New EPA Rules for Recycling Selected Hazardous Wastes
Feb 19, 2015 | Environmental Leader
By Jon Elliott
The Resource Conservation and Recovery Act (RCRA) and its state counterparts provide requirements to govern hazardous wastes during every step of their management, from “cradle to grave.” Although these rules are intended to improve management and provide incentives for recycling and other beneficial uses of hazardous wastes... -
Commission Poised to Amend REACH Reprotoxicity Rules
Feb 19, 2015 | Chemical Watch
By Philip Lightowlers
The European Commission was due to adopt amendments on 20 February to the REACH annexes covering reproductive toxicity testing, replacing the standard two-generation (OECD TG 416) with the extended one-generation reproductive toxicity study (Eogrts) (OECD TG 443). -
(ACC Mentioned) Final Briefs Submitted In 'Area Source' Boiler MACT Case
Feb 19, 2015 | InsideEPA
Environmentalists and industry have filed their final briefs in consolidated litigation against EPA's rule setting maximum achievable control technology (MACT) to reduce air toxics from smaller “area source” industrial, commercial and institutional boilers, which environmentalists say is unlawfully weak but industry criticizes... -
Oil, Gas Companies Not Entitled to Extend Leases When Sued, Pennsylvania Court Rules
Feb 20, 2015 | BNA Daily Environment Report
By John Herzfeld
Oil and gas leases in Pennsylvania can't be equitably extended by the courts when landowners unsuccessfully sue to challenge their validity, the state's Supreme Court ruled (Harrison v. Cabot Oil & Gas Corp., Pa., No. 75 MAP 2014, 2/17/15). In a Feb. 17 opinion on a question of state law certified in a pending case before the U.S. Court of Appeals... -
Miffed at the Fracking Ban, These New York Towns Hope Pennsylvania Might Adopt Them
Feb 19, 2015 | The Washington Post
By Jeff Guo
The early United States, like the early solar system, was a violent, unstable place. Claims on the land were vague, so states fractured freely. New York tussled with New Hampshire over a territory that would later become Vermont. Georgia calved Alabama and Mississippi. Kentucky spun off from proto-Virginia; Tennessee... -
Alberta Fracking Quake Fears Prompt Tougher Rules for Shale Area
Feb 19, 2015 | Bloomberg
By Rebecca Penty
Shale producers in Alberta’s Duvernay region are being asked to monitor and prevent earthquakes after regulators linked a series of seismic events over the last two months to hydraulic fracturing. Producers must test for quakes and, if they detect seismic events greater than magnitude 2.0 on the Richter scale, take measures to reduce... -
Rigs Running Hot Offshore as Shale Scales Back
Feb 19, 2015 | Bloomberg
By Zain Shauk
While U.S. drilling on land has fallen along with the price of crude, the risky and expensive drive to pull oil from the depths of the Gulf of Mexico is showing little evidence of a slowdown. Oil rigs working in the Gulf will increase by more than 30 percent this year compared with 2014, according to data from Wood Mackenzie, an industry consultant. -
Wyoming Lawmakers Mull Bill to Certify Carbon Storage Used in Oil Recovery
Feb 20, 2015 | BNA Daily Environment Report
By Tripp Baltz
A Wyoming legislative committee has approved a bill (S.F. 84) that would provide for the state to certify the quantity of carbon dioxide stored incidentally in certain oil and gas production activities. The House Minerals Committee approved the bill Feb. 18 on 8-0 vote and recommended approval in the full House... -
FERC Warned About Infrastructure Needs Linked to EPA Rule
Feb 19, 2015 | E&E News PM
By Hannah Northey
State regulators and industry groups warned the Federal Energy Regulatory Commission today that growing challenges in building new gas pipelines and power lines could put a pinch on states trying to comply with U.S. EPA's climate rule. Panelists at FERC's first technical conference on the Clean Power Plan said environmentalists'... -
Oil Industry Takes Aim At California’s War On Carbon
Feb 20, 2015 | The Sacramento Bee
By Dale Kasler
California’s effort to combat climate change was subjected to a fresh round of scrutiny Thursday as oil-industry representatives urged regulators to ease off on the state’s “low carbon fuel standard,” a centerpiece of the effort to rein in greenhouse gases. -
U.S. Energy Production Benefits Highlighted By Report of President's Economic Advisers
Feb 20, 2015 | BNA Daily Environment Report
By Alan Kovski
Growing domestic energy production has contributed broadly to employment and economic growth while laying a foundation for a low-carbon energy future, according to the 2015 Economic Report of the President, released Feb. 19. During the last three years, oil and natural gas production have contributed to growth... -
EPA’s Clean Power Plan: Achievable Goals And Deadlines Are Critical For Reliable, Affordable Electricity
Feb 19, 2015 | The Hill - Op-Ed
By Gerry Anderson
After the Environmental Protection Agency (EPA) issued its proposed guidelines last June to reduce carbon emissions from existing power plants, the agency was flooded with millions of comments from a broad range of interested parties. Among those submitting comments were the nation’s electric utilities... -
‘Safety Valve,’ Realistic Targets Vital To EPA Clean Power Plan, States, Utilities Say
Feb 20, 2015 | BNA Daily Environment Report
By Andrew Childers
A regulatory “safety valve” that would allow state and utilities additional time or flexibility to meet the Environmental Protection Agency's proposed carbon dioxide limits for power plants is vital to the rule's success, regulators and utility officials said Feb. 19. -
FERC Meeting Addresses Concerns Over ESPS' Citizen Suits, Safety Valve
Feb 19, 2015 | InsideEPA
By John Siciliano
EPA's acting air chief Janet McCabe is acknowledging concerns from state and federal officials that states could face citizen suits seeking to enforce provisions of their plans to comply with the agency's greenhouse gas (GHG) standards for existing power plants and is vowing to address the concerns and preserve states' flexibility. -
Power Plant Mercury Standards Litigation May Signal High Court's View of Deference
Feb 20, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's consideration of litigation challenging mercury and air toxics standards for power plants will be the next signal of how much judicial deference the Environmental Protection Agency and other federal regulations are afforded in interpreting statutory language, a panel of attorneys involved in environmental... -
White House Walks Away From Clean Coal, But Says It's Not Abandoning Carbon Capture
Feb 20, 2015 | BNA Daily Environment Report
By Jim Snyder, Mark Drajem and Matthew Philips
On the banks of the Illinois River, about 60 miles west of the state capital in Springfield, an old coal-fired power plant sits waiting for its future to arrive. First opened in 1948, it's been dormant since 2011, when its owner, St. Louis-based Ameren, shut down the plant rather than retrofit it to meet federal standards. -
Fly-By: What the Latest Aerial Study of Methane Emissions Tells Us
Feb 19, 2015 | Environmental Defense Fund
By Mark Brownstein
In the summer of 2013, researchers aboard a four-engine P-3 Orion aircraft – a variant of the plane used by the U.S. Navy to track submarines – flew over three of the nation’s biggest shale gas regions, taking measurements that would allow them to estimate the amount of methane leaking from the production fields below. -
All Toxic Gases From Coal Mine Blasting Must Be Managed, Federal Regulator Says
Feb 20, 2015 | BNA Daily Environment Report
By Rachel Leven
All toxic fumes released from “blasting” operations at coal mines would have to be managed under updated rules to be developed by an Interior Department agency, according to a notice to be published Feb. 20 in the Federal Register. This is an unsolicited move on the part of the Office of Surface Mining Reclamation and Enforcement... -
Ill. Lawmakers Float Carbon-Pricing Bill to Satisfy EPA Rule
Feb 19, 2015 | E&E News PM
By Jean Chemnick
State lawmakers in Illinois introduced legislation today that would price carbon emissions as a means of complying with U.S. EPA's Clean Power Plan. The bills sponsored by state Sen. Don Harmon (D) and state Rep. Elaine Nekritz (D) would increase Illinois' efficiency policies for homes and businesses by 50 percent, extend and expand... -
$1.1 Billion Available in Tax Credits for Clean Coal
Feb 20, 2015 | BNA Daily Environment Report
The IRS has about $1.1 billion in tax credits available for reallocation in the second round of the tax code Section 48A Phase III program, which helps offset the costs of investments in clean coal projects. In Notice 2015-14, the Internal Revenue Service said Round 2 of the reallocations will begin immediately and applications must be submitted... -
PHMSA Publishes Lithium Battery Rule Extension
Feb 20, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish a notice in the Federal Register Feb. 20 that extends until Aug. 7 the compliance deadline for portions of a lithium battery and cell transport rule. PHMSA announced the six-month extension Feb. 13 in response to calls from retailers and battery manufacturers... -
Risks Warrant Oil-by-Rail Halt, Environmentalists Say
Feb 20, 2015 | BNA Daily Environment Report
Millions of people, thousands of miles of water bodies and dozens of critical habitats for threatened or endangered species are within the Transportation Department-recommended evacuation zone of oil-by-rail routes, according to a Center for Biological Diversity report released Feb. 19. U.S. regulators should ban oil-by-rail transport... -
Fires Still Burning at West Virginia Oil Train Disaster Site
Feb 19, 2015 | The Hill - E2 Wire
By Timothy Cama
Some fires continued to burn Thursday afternoon, three days after a train carrying crude oil derailed and exploded in rural West Virginia. Suzanne Emmerling, a spokeswoman for the U.S. Department of Transportation, said that the fires are hampering investigators’ ability to access what they need in order to determine the disaster's cause. -
Oil and Water Don’t Mix -- Add Trains and It’s a Disaster Waiting to Happen
Feb 19, 2015 | Environmental Working Group
By Jose Aguayo & Renée Sharp
When I heard earlier this week that a train carrying crude oil had derailed and exploded in flames near the West Virginia town of Mount Carbon, I had a sickening feeling of déjà vu. It was just April of last year that a similar accident unfolded in Lynchburg, Va. Just like last year, the train operator was CSX. And just like last year, a river was... -
Feds: Speed Doesn’t Appear To Be Factor in Oil Train Crash
Feb 19, 2015 | AP (in the Washington Post)
By Joan Lowy & Matthew Brown
Speed doesn’t appear to have been a factor in an oil-train derailment in southern West Virginia, a federal transportation official said Thursday. The CSX train was going 33 mph at the time of Monday’s crash in the town of Mount Carbon. The speed limit was 50 mph, said Federal Railroad Administration acting administrator...
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(ACC Mentioned) Scientists Convened by Chemistry Council Attack CHAP Report on Phthalates in Toys
Feb 20, 2015 | BNA Daily Environment Report
By Rebecca Kern
The Chronic Hazard Advisory Panel's 2014 report overestimated the effects of phthalates on human health, particularly their suspected ability to block activity of the male androgen hormones, according to a group of scientists.
Christopher Borgert, president and principal scientist at Applied Pharmacology and Toxicology Inc., said, “The CHAP report failed to compare human versus rodent sensitivity to these anti-androgenic effects, and as a consequence they appear to have grossly overestimated chemical potencies” in assessing potential risks to humans from cumulative exposures to phthalates, phthalate alternatives, and other potential anti-androgens.
The group of scientists was convened by the American Chemistry Council to look at the recommendations made in the Chronic Hazard Advisory Panel's 2014 report to the Consumer Product Safety Commission on the use of phthalates in children's toys. The scientists outlined their findings in a teleconference Feb. 18.
The CHAP report, issued in July, recommended that the CPSC ban certain phthalates (or combinations of phthalates) due to possible health risks to children. The commission was directed to produce the report by the Consumer Product Safety Improvement Act of 2008 (140 DEN A-3, 7/22/14).
Phthalates are plasticizers used to increase the softness and flexibility of plastics and to improve their processing.
CPSC Issued Proposed Rule on Phthalates
Following the CHAP's submission of its report, the CPSC issued a proposed rule in December following the report's recommendations, including a permanent ban of five phthalates: diisononyl phthalate (DINP), diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP) and dicyclohexyl phthalate (DCHP). The rule also recommended lifting the current bans for diisodecyl phthalate (DIDP) and di-n-octyl phthalate (DNOP) .
The ACC commissioned an independent group—ToxStrategies Inc.—to conduct a peer review of the CHAP report, which resulted in a 293-page report published in September.
The ACC gathered a group of scientists who helped author the report in a media call Feb. 18 to highlight their concerns with the CHAP report.
Criticism of CHAP Report
The scientists criticized the CHAP report, saying the authors overestimated the effects of phthalates on human health, particularly their anti-androgenic effects.
“We've done independent analyses, and the fact that they've come to similar conclusions and actually very consistent and logical among one another, probably speaks to the inaccuracies that are indeed in the CHAP methodology and the report,” Borgert, one of the six scientists who authored the ToxStrategies report, said during the conference call.
Overall, the scientists concluded that human exposure to phthalates is low, and therefore CPSC should rely on existing regulations regarding phthalates.
“There should be confidence in existing regulatory decisions, and the recommendations presented in the CHAP report are viewed as overly cautious,” Warren Foster, a professor in the Department of Obstetrics & Gynecology at McMaster University, said in the ToxStrategies report.
Borgert said he thought there wasn't a strong scientific basis for any regulation.
“For myself, personally, while I'm not weighing in on regulation or policy, I find a very, very weak scientific basis for doing anything from this report,” he said.
Kaye Invites Comment
CPSC Chairman Elliot Kaye (D) defended the CHAP report's methodology and its conclusions and encouraged public comments on the proposed rule.
“The CHAP was comprised of highly respected scientists from around the world,” Kaye told Bloomberg BNA Feb. 18. “We appreciate the years of dedication and service that the members of the CHAP gave to the process of preparing a report on phthalates and phthalate alternatives.”
“CPSC has an open comment period, and we would like to see input from all interested parties,” he said. “This is a critically important rulemaking, and we are determined to follow the law and to get it right for the sake of consumer safety and the businesses impacted.”
CHAP Relied on Old Data, Critics Say
The High Phthalates Panel of the ACC, which represents manufacturers of phthalates like ExxonMobil Chemical Co., PolyOne Corp., and Evonik Corp., has also criticized the CHAP report process as being non-transparent and largely based on old data (249 DEN A-5, 12/30/14).
“CPSC should have considered the most recently available [Centers for Disease Control and Prevention] biomonitoring data from 2009–10 and 2011–12 prior to issuing a proposed rule,” the High Phthalates Panel of the ACC said in a December 2014 statement.
Also, the two Republican CPSC commissioners—Joseph Mohorovic and Ann Marie Buerkle—both raised concerns Dec. 17 that the CHAP report was based on outdated cumulative risk assessment data on phthalates from 2005–2006, compiled by the CDC's National Health and Nutrition Examination Survey.
Ultimately the commissioners voted 3–2 to pass the proposed rule based on the CHAP report's recommendations.
Comments on the proposed rule are due March 16. ACC said it will be submitting comments as well as the ToxStrategies report to the agency.
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(ACC Mentioned) Listing of Two Common Industrial Solvents In UN Narcotics Treaty Set for March Vote
Feb 20, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The use of two industrial solvents commonly used by the makers of electronic goods and plastics would effectively be eliminated if countries vote in March to add the chemicals to the 1971 UN Convention on Psychotropic Substances.
The World Health Organization has recommended two chemicals—1,4-butanediol (BDO; CAS No. 110-63-4) and gamma butyrolactone (GBL; CAS No. 96-48-0)—be added to the Schedule 1 list of the Psychotropic Substances convention.
“Industrial uses would essentially be prohibited,” Aaron Goldberg, an attorney with Beveridge & Diamond P.C., told Bloomberg BNA Feb. 19.
If ingested, the body converts both chemicals into a nervous system depressant called gamma-hydroxybutyric acid (GHB), FDA's notice said. GHB is a Schedule 1 controlled substance under U.S. Drug Enforcement Administration rules.
More than 583 million pounds of 1,4-butanediol and 249 million pounds of gamma butyrolactone were either manufactured in or imported into the U.S. in 2012, according to information chemical manufacturers reported to the U.S. Environmental Protection Agency.
European companies make or import between 100,000 metric tons and 1 million metric tons (220 million - 2.2 billion U.S. pounds) of BDO annually and between 10,000 metric tons and 100,000 metric tons (22 million - 220 million U.S. pounds) of GBL annually, according to information they reported to the European Chemicals Agency.
Ashland Inc., BASF Corp. and the Lyondell Chemical Co. are among the U.S. and European manufacturers of both chemicals.
FDA Accepting Comments on Possible U.S. Position
The Food and Drug Administration is accepting comments through Feb. 26 as it works with other federal agencies to craft the U.S. position on the recommendation, it said in a Jan. 27 Federal Register notice (80 Fed. Reg. 4283).
The U.S. is preparing for a possible vote on the inclusion in the convention of these two solvents and other compounds with veterinary, food additive and other uses.
National representatives will gather to discuss and possibly vote on these and other issues during the UN's Commission on Narcotic Drugs meeting March 9-17 in Vienna.
In addition to the body's conversion of the two chemicals into GHB, illegal laboratories can use gamma butyrolactone to make compounds used for their intoxicating effects, as bodybuilding drugs and as “date rape” drugs, according to information from federal agencies, including the DEA.
The Drug Enforcement Administration already regulates gamma butyrolactone under the Controlled Substances Act.
ACC Wants Recommendation Rejected
“The American Chemistry Council strongly urges the U.S. government to reject the WHO recommendations to list 1,4-butanediol and gamma butyrolactone under the 1971 Convention,” the council told BNA in a Feb. 19 e-mail.
BDO and GBL are high-volume industrial chemicals with multiple uses that touch nearly every sector of the economy, the council continued.
A key use of both chemicals is to make other widely used industrial compounds, according to an ACC website.
A significant use of GBL, because of its strong solvency properties, is in applications such as circuit board cleaning in electronics and high technology industries, and paint stripping, the council said. Other GBL applications include the production of herbicides and as a processing aid in the production of pharmaceuticals, the website said.
Chemicals BDO is used to manufacture include polyester polymers, which are used to make car bumpers and other auto parts. BDO is also used as a plasticizer, a carrier solvent in printing inks and a cleaning agent, the council's website said.
Would Be Most Restrictive Listing
The World Health Organization, which has recommended the two chemicals be added to the Schedule 1—or most restrictive—list of the Psychotropic Substances convention, recognizes the widespread and important industrial uses of the chemicals, the FDA said in its Federal Register notice.
The convention requires that companies making, trading or distributing Schedule 1 substances have licences, Beveridge & Diamond's Goldberg said in an online summary.
Except for scientific uses and very limited medical purposes, nearly all uses are prohibited, he wrote. A country can notify the U.N. that it's unable to prohibit the chemical as a result of “exceptional circumstances, but, even then, the country is required to address the treaty's prohibition as far as possible,” Goldberg wrote.
The U.S. is a party to the Convention on Psychotropic Substances.
Listing Could Eliminate Legitimate Uses
Schedule I listing could effectively eliminate legitimate, economically important industrial uses of the two chemicals, including, but not limited to, elastane fibers for stretchable fabrics, processing solvents for the semiconductor industry, heat-resistant plastics for computers and electrical components and PVC pipe cements, ACC told BNA.
The potential for illicit use of BDO and GBL is already well-recognized and controlled within the U.S., both by the DEA and through voluntary product stewardship safeguards established by manufacturers, the American Chemistry Council said.
“The WHO recommendations are highly disproportionate and would disrupt, if not eliminate, legitimate commercial uses,” it said.
The gamma butyrolactone and butanediol website ACC maintains offers guidance to companies on actions they should take to help ensure the proper use of their chemicals.
“As good product stewards, industry takes significant steps to educate its customers and coordinate with regulators and law enforcement authorities to help prevent diversion and misuse of its products,” the council told BNA.
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(ACC Mentioned) Chemical in Plastics May Affect Boys' Future Fertility
Feb 19, 2015 | HealthDay (in CBS News)
By Steven Reinberg
When expectant mothers are exposed to plastics chemicals called phthalates during the first trimester, their male offspring may have a greater risk of infertility later in life, a new study suggests.
Boys exposed to the chemical diethylhexyl phthalate (DEHP) may be born with a significantly shorter anogenital distance than those not exposed to these chemicals. Anogenital distance is the distance between the anus and the genitals. A shorter anogenital distance has been linked to infertility and low sperm count, the researchers explained.
"We saw these changes even though moms' exposure to DEHP has dropped 50 percent in the past 10 years," said lead researcher Shanna Swan, a professor of preventive medicine and obstetrics, gynecology and reproductive medicine at the Icahn School of Medicine at Mount Sinai in New York City.
"Therefore, we have not found a safe level of phthalate exposure for pregnant women," she contended.
Swan said that this study cannot prove that these boys will have fertility problems as adults or that DEHP causes these problems. However, animal studies have implicated the chemical in male reproductive problems. Based on the data from this study, Swan believes there is a strong association between exposure to DEHP and fertility in human males.
DEHP is used to soften plastics. Most exposure results from eating foods that pick up the chemical during processing, Swan said.
"Since food is the largest source of DEHP for consumers, it is difficult for pregnant women to minimize exposure," she said. "Eating unprocessed food will likely help. However, eliminating DEHP from food really has to be done by food producers."
The chemical is also found in medical tubing and in a variety of products, including flooring, wallpaper, lacquers and personal care products, Swan said.
The report was published Feb. 19 in the journal Human Reproduction.
For the study, Swan's team collected data on almost 800 pregnant women and their infants.
Specifically, the researchers found that exposure in the womb to three types of DEHP was associated with a significantly shorter anogenital distance in boys, but not in girls.
A group representing the chemical industry took issue with the study, however.
In a statement, the American Chemistry Council (ACC) stressed that the study only examined one type of phthalate, not all versions of the chemical. And it said that phthalates are "one of the most widely studied family of chemicals in use today."
The ACC added that DEHP "is known to break down into its metabolites within minutes after it enters the body. Information collected by the Centers for Disease Control and Prevention over the last 10 years indicates that, despite the fact that phthalates are used in many products, exposure from all sources combined is extremely low -- much lower than the levels established as safe by scientists at regulatory agencies."
But another expert says phthalate exposure may not be benign. Dr. Kenneth Spaeth, director of the Occupational and Environmental Medicine Center at North Shore University Hospital in Manhasset, N.Y., said, "virtually everyone in the U.S. experiences continual exposure to phthalates."
And, a number of studies have tied the chemicals with changes in developing fetuses. "Phthalates, in particular, have been shown in both human and animal studies to interfere with normal fetal development," he said.
This study supports what has been demonstrated before, that phthalate exposure in the first trimester is linked to male reproductive development, Spaeth said. "This study is an important step forward in establishing this effect because the study included a much larger number of individuals than prior studies and helps identify one particular agent, DEHP, as an important contributor to this effect," he said.
Additionally, this study shows the importance of exposure in the first trimester as a critical window for the effect of phthalates on the male reproductive system. "On the whole, given these features, the authors have contributed important information about the public health risk posed by phthalates," Spaeth suggested.
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(ACC Mentioned) US Consumer Products Safety Commission Likely to Expand Phthlate Ban
Feb 19, 2015 | Plastics News
By Gayle S. Putrich
Phthalates used in plastics destined for children's toys and child care items will likely get a new, more stringent federal safety regulation even though scientists say the report used to make the decision is flawed.
The proposed rule from the U.S. Consumer Products Safety Commission also would expand existing law to include Di-n-pentyl phthalate (DnPP), diisobutyl phthalate (DIBP), di-n-hexyl phthalate (DnHP) and dicyclohexyl phthalate (DCHP) as chemicals permanently banned from use in children’s toys and childcare items at concentrations greater than 0.1 percent.
The change, which could come as soon as mid-March, is based on the recommendations in a July 2014 report from the Chronic Hazard Advisory Panel (CHAP), which includes years of studies and research on phthalates. But the CHAP report is deeply flawed, said scientists in a Wednesday conference call coordinated by the American Chemistry Council.
The four experts who independently and individually reviewed the science behind the CHAP report said they came to the same conclusions, with concerns ranging from the inclusion of highly uncertain phthalate exposure estimates, potential problems with the small sampling of chemicals evaluated, a lack of information on tissue exposure to contaminants and the inaccurate extrapolation of phthalate sensitivity in laboratory rats to humans.
The problem isn't the rat studies themselves or how they were conducted, but how the data on phthalates’ effects on rats is extrapolated to other species and eventually to humans that is errant, said Warren Foster, a reproductive and developmental toxicity researcher in the Obstetrics and Gynocology Department at McMaster University in Hamilton, Ontario. In mouse and non-human primate studies, subjects have shown significantly lower sensitivity to phthalate exposure at any level and “we don't see the same effects — and that is good news,” Foster said. “I don't think that there's anything wrong with the science that's being considered [in the CHAP study]. It's how we interpret the science and the data we're getting. The species’ differences in metabolism are very important here.”
“It’s a matter of a good interpretation of the data,” said Christopher Borgert, president and principal scientist at Applied Pharmacology and Toxicology Inc. in Gainseville, Fla., “Regulations weren’t our charge. We’re scientists and we focused on the science. But speaking for myself, personally, I’m not weighing in on regulation or policy, but I find very weak scientific basis for doing anything based on this report.”
Three other phthalates, di (2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), and butyl benzyl phthalate (BBP), have been banned from use in children’s items in concentrations greater than 0.1 percent since February 2009; DINP, DIDP and DPHP are no longer used in personal care products and DnPP has already been phased out most U.S. and European PVC production.
CPSC is accepting public comment on the proposed rule until March 16.
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(ACC Mentioned) Linde's Illinois Plant Receives Responsible Care® Certification
Feb 19, 2015 | 4-Traders
Linde LLC has received certification of its Hartford, Illinois, air separation plant under the American Chemistry Council's Responsible Care® program (see also Linde North America).
Kevin Conner, production manager for the Hartford plant, said, "The Responsible Care Certification is a measure of our Hartford colleagues' commitment to safety, as well as being a good neighbor to our community, environmentally responsible and second-to-none as a supplier of products and services to our customers. They did a great job handling all the details associated with ACC certification."
Linde LLC is a member of The Linde Group, a world-leading gases and engineering company. The ACC is an association of producers, manufacturers and suppliers of chemical products. Linde has been a member of the ACC since 1951.
Responsible Care is a globally recognized management system aimed at helping companies improve performance in areas such as safety, health, environment and security. Certification is mandatory for all ACC member companies, which must undergo headquarter and facility audits by an independent, accredited auditor to verify that they have a structure and system in place that manages and measures performance. Lloyd's Register Quality Assurance (LRQA) is Linde's independent auditor. Since 2008, 24 Linde plants in North America have been certified under the program.
The Hartford plant has been operating since 1995 producing oxygen, nitrogen and argon. Gaseous oxygen and nitrogen are shipped to refineries, metals and steel customers via a 20-mile network of pipelines. The liquid oxygen, nitrogen and argon are delivered by truck to a variety of end-users including hospitals, food processors and metals fabricators in Iowa, Illinois, Kansas, Kentucky, Missouri, Oklahoma and Tennessee. Linde employs 35 people at the plant.
Holly Jerdi, head of Health, Safety and Environment for Linde North America, said, "I congratulate all my colleagues at the Hartford plant for this accomplishment. Their efforts were invaluable in the process that places Linde among the leaders in the U.S. when it comes to sustaining the practices specified in the Responsible Care management system."
The Responsible Care management system offers an integrated, structured approach for driving continuous improvement in seven key areas: community awareness and emergency response; security; distribution; employee health and safety; pollution prevention; process safety; and product stewardship.
Implementing the Responsible Care system is a multi-step process. Companies must first plan - identify, assess and evaluate potential hazards and risks associated with their products, processes and operations - and establish goals and objectives to address any significant hazards or risks. Next, they must do what they have planned, checking their progress along the way to measure performance and take necessary corrective actions. Communicating with employees and other stakeholders, including neighbors and customers, along the way also is essential.
In the 2013 financial year, The Linde Group generated revenue of $23.1 bn (EUR 16.655 bn), making it the largest gases and engineering company in the world with approximately 63,500 employees working in more than 100 countries worldwide. The strategy of The Linde Group is geared towards long-term profitable growth and focuses on the expansion of its international business with forward-looking products and services. Linde acts responsibly towards its shareholders, business partners, employees, society and the environment - in every one of its business areas, regions and locations across the globe. The company is committed to technologies and products that unite the goals of customer value and sustainable development.
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More Time for Input on Toluene Diisocyanates Rule
Feb 20, 2015 | BNA Daily Environment Report
Makers of chemicals, furniture and other products, environmental health organizations and other parties will have until April 30 to comment on a proposed rule that would give the Environmental Protection Agency oversight over new consumer uses of seven toluene diisocyanates (TDI) and related compounds. At the request of chemical manufacturers, the EPA is providing 45 additional days to comment on the proposed Significant New Use Rule (SNUR) published Jan. 15 (80 Fed. Reg. 2068). Comments originally were due March 16 (06 DEN A-5, 1/9/15).
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US EPA Extends Consultation on Toluene Diisocyanates Snur
Feb 20, 2015 | Chemical Watch
The US EPA has extended to 30 April the comment period on the proposed significant new use rule for toluene diisocyanates (CW 9 January 2015). The original deadline was 16 March.
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Proposed CPSC Nanotechnology Center Would Study Consumer Health Risks
Feb 20, 2015 | BNA Daily Environment Report
By Rebecca Kern
The use of nanotechnology in consumer products continues to grow each year, prompting the CPSC to seek funding to expand research into the health effects of the tiny particles in goods sold to consumers.
“Our understanding is that nanotechnology is very prevalent and it's not well-labeled,” Consumer Product Safety Commission Chairman Elliot Kaye (D) said in a recent Bloomberg BNA interview.
“So consumers have no idea when they swing a tennis racket, and the ball hits the racket, some nanoparticles may be released, and you're breathing it in,” he said.
Kaye made a comparison that indicated a high level of concern about nanotechnology. “From a health perspective, it might mimic, to some extent, asbestos and the hazards that are posed by asbestos,” specifically that consumers can be exposed to nanomaterials through inhalation, he said.
Tiny Particles
Nanotechnology allows scientists to produce materials at a nanoscale, which is about 1 to 100 nanometers. One nanometer is approximately 1/100,000th the width of a human hair.
The CPSC recognizes that nanotechnologies can improve a product's strength, flexibility, stain resistance and cleaning ability, according to the agency's fiscal year 2016 budget request.
The agency requested $7 million to establish a nanotechnology center—the Center for Consumer Product Applications and Safety Implications of Nanotechnology (CPASION). The center would be a consortium of scientists tasked with researching “robust methods to quantify and characterize the presence, release and mechanisms of consumer exposure to nanomaterials from consumer products,” the CPSC said in the budget document.
The funding is contingent on congressional approval. CPSC staff members have briefed four appropriations subcommittees on the budget request, including the funding increase for nanotechology research.
“My sense of it was that there was interest in the [nanotechnology] proposal, without tipping in one direction or another,” Kaye told Bloomberg BNA Feb. 10. “I'm certain that should I have an oversight hearing of some sort, we'll all get a good gauge as to how they feel about it then.”
Kaye said the agency anticipates there may be a House appropriations subcommittee oversight hearing in early March for CPSC as part of the budget cycle.
Nanotechnology Center Set-Up
The CPSC would establish a five-year interagency agreement with the National Science Foundation and an academic institute to house the center, similar to the existing model between the NSF, the Environmental Protection Agency and Duke University.
“We envision the center being much more than researchers taking money and looking at things,” Kaye said.
“We look at it as a hub where not only can this core research be done, but the manufacturers can go to it, can engage with it, learn from it and see what they can do to make sure that they use nanoscale materials in their manufacturing process safely,” he said. “Also, consumer advocates or any other representative can have a place to have policy questions answered and just to engage and learn more.”
He said the CPSC would play a role in overseeing the research.
“We would be providing the overall guidance and direction from a research perspective, and then I would imagine that you would see a lot of regular interaction between our in-house experts and those academics and scientists from the outside who would be located at the center,” Kaye said.
Ubiquity
Nanotechnology has become ubiquitous in consumer products today.
“Our sense is that it's already out there to a large degree,” Kaye said.
The Woodrow Wilson International Center for Scholars issued a report in 2008 analyzing the CPSC's role in nanotechnology (its most recent report on the topic), saying that nanotechnology is used in all of the categories that CPSC regulates, including toys and baby products, sports and fitness equipment, home improvement and garden equipment, clothing, appliances, computers and other electronic devices.
The Wilson Center also established a Consumer Products Inventory, which has documented more than 1,800 consumer products to date that have been identified as containing nanomaterials, Todd Kuiken, a senior program associate in the Science and Technology Innovation Program in the Wilson Center, said in a Feb. 12 interview.
“We know we're probably grossly underestimating the actual number of products that are on the market” with nanotechnology, Kuiken said, as the inventory only includes products containing nanomaterials that have been identified by the manufacturer, an advertising agency, a research organization or third party. “It's probably impossible to suggest what a number would be” for all of the consumer products that contain nanomaterials, as many do not label these ingredients.
Kaye said his initial priority in nanotechnology research would be children's products.
Likewise, Jaydee Hanson, the policy director at the International Center for Technology Assessment, said in a Feb. 10 interview, “Any of the products that children are going to be using would be my first priority. I would like the CPSC first to focus on the products that children might put into their mouths or that adolescents exercising might be using.”
Timing of Regulatory Approach
Kaye said the CPSC is trying to take a proactive approach to nanotechnology, unlike the slower approach the agency took toward lead and phthalates before Congress stepped in.
“This [nanotechnology center] reflects where we're trying to go as an agency,” he said. “This is a forward-thinking, yet cost-effective approach to consumer safety.”
He said the agency's approaches toward regulating lead and phthalates in consumer products “churned and stewed for a long time without definitive government action.” He said this led the lawmakers to take somewhat of a “blunt and crude approach” in the Consumer Product Safety Improvement Act to address concerns about two well-established hazards.
Kaye said the delayed reaction on lead and phthalates “caused significant disruption to the market.”
“Unfortunately nanotechnology is already out there to a large degree, but it's still relatively early in the nano world,” he said. “What we're proposing is a better model for not only public health, but also for keeping federal costs down.”
However, others think that the CPSC is actually bit behind the curve on nanotechnology.
“If they can pull off and get this center up and running, I think that's a good thing,” said the Wilson Center's Kuiken. “It's a little late for it, but it's better late than never.”
“The CPSC is doing the best they can,” Kuiken said. “They are one of the agencies we've identified as needing to take a bigger role in looking at nanomaterials because we were seeing all of these products enter the market, and a lot of them fell under the purview of CPSC.”
He expressed concerns about the CPSC's funding for nanotechnology. “They have a small budget to be able to do the kind of research into these products” necessary to determine their impact, he said.
Effort Dates to 2009
The CPSC started receiving small amounts of funding for nanotechnology research in 2009; the funding was increased to a constant $2 million per year starting in 2011, Scott Wolfson, the CPSC spokesman, told Bloomberg BNA.
The CPSC has spent the nanotechnology funds researching children's products, paints and coatings, pressure-treated wood, clothing and textiles, laser printers and sports equipment, he said.
The agency has also used the funding to establish agreements with other agencies, including the EPA, the NSF and the Food and Drug Administration. It's also set up agreements with academic institutions, including the Virginia Polytechnic Institute and State University, the Harvard School of Public Health, Rutgers University and Duke University, he said.
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General Mills To Remove Antioxidant BHT From Its Cereals
Feb 19, 2015 | Chemical & Engineering News
By Melody M. Bomgardner
In the wake of a campaign by the controversial blogger Vani Hari, who goes by the name Food Babe, General Mills says it is removing the antioxidant butylated hydroxytoluene (BHT) from its cereals.
The action is the latest to be trumpeted by Hari, who is not a scientist but whose blogging about food additives has the ability to make big companies jump. Last year the Subway sandwich chain removed a dough conditioner, azodicarbonamide, from its breads after similar haranguing by Hari.
Many of America’s favorite cereal brands contain a dash of BHT, a synthetic antioxidant that prevents vegetable oils from going rancid. BHT may be added directly to cereal, though it is commonly added to the plastic or wax paper liner of the packaging. From there, it migrates into food.
“BHT is an FDA-approved food ingredient, but we’re already well down the path of removing it from our cereals. This change is not for safety reasons but because we think consumers will embrace it,” General Mills says. The company claims the move has been under way for more than a year and was not motivated by the petition that Hari launched on Feb 5. Hari also has called on Kellogg’s to remove BHT.
There is no scientific evidence that BHT is harmful in the amounts used in packaged food. Indeed, in small amounts, it may have anticancer effects similar to those provided by naturally occurring antioxidants. But studies of larger doses have shown mixed results. In some mouse and rat studies, BHT appeared to trigger cancer in the forestomach, an organ that humans don’t have.
BHT is approved for use in both the U.S. and Europe, but Hari points out that cereals marketed in Europe by General Mills and Kellogg’s do not contain the additive. Already, General Mills says, the Cheerios, Trix, Kix, and Lucky Charms it sells in the U.S. contain no BHT. Cheerios products, for example, rely on vitamin E, also called mixed tocopherols, to keep them fresh. Other label-friendly antioxidants available to cereal companies include vitamins A and C and extracts of rosemary and thyme.
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Demystifying New EPA Rules for Recycling Selected Hazardous Wastes
Feb 19, 2015 | Environmental Leader
By Jon Elliott
The Resource Conservation and Recovery Act (RCRA) and its state counterparts provide requirements to govern hazardous wastes during every step of their management, from “cradle to grave.” Although these rules are intended to improve management and provide incentives for recycling and other beneficial uses of hazardous wastes, many organizations find many of the rules unnecessarily onerous – and therefore potentially counterproductive if they actually discourage beneficial activities. In addition, over time changes in technologies, commercial activities and regulatory priorities reveal gaps in existing rules. In January, the Environmental Protection Agency (EPA) revised its “Definition of Solid Waste” rules governing a number of potentially hazardous wastes that it instead considers to be “hazardous secondary materials,” and the range of recycling and recovery activities eligible for special regulatory considerations. The revisions become effective on July 13, 2015.
What Are ‘Hazardous Secondary Materials?’
EPA has revised exclusions from the category of (potential) hazardous wastes defined as hazardous secondary materials. The general definition remains the same:
Hazardous secondary material means a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter.
EPA’s use of the subjunctive “would be discarded” tells us how EPA considers spent materials, by-products and sludges that are managed in some way other than being discarded. The most recent changes revise the lists of materials being addressed, and the non-discard activities that qualify for special regulatory consideration. Most importantly, reclamation of a hazardous secondary material may qualify for one of two dozen exclusions—a specified material managed in a specified way is not a solid waste (i.e., is excluded from the definition, and therefore from all associated regulatory requirements).
Which General Revisions Apply to Hazardous Secondary Materials Handling?
EPA is revising the following generally-applicable requirements: Revises the definition of “legitimate recycling” to focus on whether the products make a “useful contribution” to an economic process, confirming that in-process recycling and transfers to other processes can both be legitimate.Revises rules for transfers to third parties, to require that the recipient be a “verified” recycler or reclamation facility (i.e, with appropriate permit or variance to conduct the activity).Clarifies onsite management requirements, including container labeling.
What Revisions is EPA Making to Material-Specific Exclusions?
These revisions eliminate one pre-existing exclusion, revise two, and add one. The following provisions will apply once the revisions become effective in July:
–Reclamation under control of the generator’s organization (revised). Change from requirement for land-based management at the generator’s facility to management under control of the generator’s organization (i.e., including at other facilities).Addition of details to requirements for emergency preparedness and response programs.
–Reclamation at a third party “verified reclamation facility” (revised). Addition of requirements that facility be subject to formal regulatory authority to conduct reclamation (permit or variance).Conforming requirements to notify EPA or state agency, providing reporting.Clarify onsite management requirements (including containment).
–Excluded exports (repealed, so all exports will be subject to RCRA requirements).
–Remanufacturing specified solvents from specified industrial sectors (new). Available only to these solvents: toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol.Available only if solvent originated from chemical processing use (e.g., reacting, extracting, blending) and not if from other uses (such as degreasing).Available only if generator in a specified sector: pharmaceutical, basic organic chemical manufacturing, plastics and resin manufacturing, or paint and coatings sectors.Available only if the solvents are remanufactured at a facility in one of those sectors.Available only if the solvents are then used in one of those chemical processing use at a facility in one of those sectors.Available only if the spent solvents are managed in compliance with new, detailed standards for containment, tank systems, and air emissions.
Self-Assessment Checklist
Does the organization generate chemical process wastes that EPA’s regulations identify as hazardous secondary materials (before or after July 13, 2015)?
Does the organization manage any hazardous secondary materials that it generates (before or after July 13, 2015)?
Does the organization manage any hazardous secondary materials generated by other organizations (before or after July 13, 2015)?:
For any activity involving generation or management of a hazardous secondary material, has the organization determined whether the activity is excluded from RCRA regulation (before or after July 13, 2015)?
For any non-excluded activity, has the organization determined its compliance responsibilities (before or after July 13, 2015)?:
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Commission Poised to Amend REACH Reprotoxicity Rules
Feb 19, 2015 | Chemical Watch
By Philip Lightowlers
The European Commission was due to adopt amendments on 20 February to the REACH annexes covering reproductive toxicity testing, replacing the standard two-generation (OECD TG 416) with the extended one-generation reproductive toxicity study (Eogrts) (OECD TG 443).
Once adopted, the changes to Annexes VIII, IX and X should be published within a week or so, and will come into force 20 days after. Echa will then update its guidance on reproductive toxicity accordingly.
The Commission's REACH Committee agreed to introduce Eogrts as a standard reprotoxicity test, last autumn (CW 25 September 2014). Echa has forwarded more than 200 draft decisions to the Commission, where its Member State Committee could not agree on the reprotoxicity test methods.
The need for a second generation, as part of Eogrts, will have to be assessed for each of these substances, before the test is conducted. But according to a statement on Echa's website, the Commission says a common approach will be adopted. This is not a formal decision that needs formal adoption, the Commission told Chemical Watch, but an approach that would be agreed between the Commission, Echa and member states. The Commission added that it is examining the legal aspects of the 'common approach', and it will be presented to the Caracal, the forum for competent authorities for REACH and CLP. It is, therefore, unable to say yet when this will be published or the first decisions made, regarding the draft decisions it received from Echa.
The Commission’s position on Eogrts is that it is a better method of identifying adverse effects on reproduction and, therefore, better fulfils REACH’s aim of protecting human health. It is also necessary to require this test because of REACH’s obligation to replace, reduce and refine testing on vertebrate animals. When a second generation is not triggered, Eogrts uses approximately 50% less animals, compared to the previously required two-generation study. Hence, it has good potential for reducing the number of animals used in high-tier reproductive toxicity testing.
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(ACC Mentioned) Final Briefs Submitted In 'Area Source' Boiler MACT Case
Feb 19, 2015 | InsideEPA
Environmentalists and industry have filed their final briefs in consolidated litigation against EPA's rule setting maximum achievable control technology (MACT) to reduce air toxics from smaller “area source” industrial, commercial and institutional boilers, which environmentalists say is unlawfully weak but industry criticizes for being tougher than the law requires.
Area source boilers are those emitting less than 10 tons per year (tpy) of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs. EPA's area source rule is part of a package of “combustion” rules also regulating larger “major source” boilers, setting emissions limits for solid waste incinerators, and defining what materials are “fuel” for use in boilers or “waste” covered by the incinerator rule.
All the rules are being litigated before the U.S. Court of Appeals for the District of Columbia Circuit. The case over the area source rule is American Chemistry Council (ACC), et al. v. EPA, et al.
In a flurry of final briefs filed Feb. 18, environmental groups, industry and EPA reprise their positions taken earlier in the case, ahead of oral argument that has yet to be scheduled.
EPA in the rule avoided setting hard numeric MACT emissions limits for many boilers, instead opting for “tune-ups” and work practice standards, citing its discretion to do so under Clean Air Act provisions allowing the agency to set weaker generally available control technology standards. Environmental groups Clean Air Council, Environmental Integrity Project, Louisiana Environmental Action Network, Partnership for Policy Integrity and Sierra Club in their final briefs say this approach is flawed and contrary to the air law's requirements that EPA consider MACT and apply it where appropriate.
The technology required to cut tons of HAPs emitted by area source boilers already exists, and EPA cannot arbitrarily ignore the benefits it would offer, the environmental groups argue. “EPA does not dispute that the standards under review will barely reduce the toxic pollution that area-source boilers emit,” the groups say in their final reply brief.
They defend EPA, however, against industry arguments that EPA violated the air law by not setting MACT limits taking malfunction periods into account and by requiring “energy assessments” for boilers that call for an examination of other equipment within a facility that affects the boiler's energy usage. The industry groups, including ACC, the National Association of Manufacturers and U.S. Chamber of Commerce, among others, argue that the assessments amount to illegal regulation of equipment that falls outside the scope of the air law's MACT provisions.
EPA in its final brief defends its right to require the assessments, arguing that the regulated source category is not restricted exclusively to the equipment that actually emits HAPs as industry claims, and that the assessments encourage -- but do not compel -- efficient use of boilers that will reduce the pollutants they emit. EPA also argues that setting MACT limits to reflect “myriad” possible malfunction events is impracticable.
With respect to environmentalists' arguments, the agency broadly defends its discretion to determine when some alternative to numeric MACT standards is appropriate and when other requirements, such as Title V air permitting provisions, can be waived for area sources.
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Oil, Gas Companies Not Entitled to Extend Leases When Sued, Pennsylvania Court Rules
Feb 20, 2015 | BNA Daily Environment Report
By John Herzfeld
Oil and gas leases in Pennsylvania can't be equitably extended by the courts when landowners unsuccessfully sue to challenge their validity, the state's Supreme Court ruled (Harrison v. Cabot Oil & Gas Corp., Pa., No. 75 MAP 2014, 2/17/15).
In a Feb. 17 opinion on a question of state law certified in a pending case before the U.S. Court of Appeals for the Third Circuit, the Pennsylvania Supreme Court found that although granting of equitable lease extensions by the courts is common in other jurisdictions to allow oil and gas companies to make up for time lost during litigation, contract law in Pennsylvania doesn't allow it.
The opinion, ruling on an issue of first impression in the state, backed the position of landowner plaintiffs and the environmental group Earthjustice, which filed a friend-of-the-court brief. They had argued that oil and gas companies remain free to negotiate their own tolling provisions in leases without intervention from the courts.
The defendant, Cabot Oil & Gas Corp., had argued that disparities in lease payouts among thousands of Pennsylvania landowners for extraction from the Marcellus Shale reserve have prompted unjustified lease validity lawsuits and that it didn't make economic sense to spend millions of dollars on drilling at a site while litigation is pending.
Cabot maintained that lease validity lawsuits forestall drilling and development and that the court should “follow the mainstream approach of other jurisdictions which have treated a meritless lease challenge as a repudiation and applied equitable remedial principles.”
In the lower court case on appeal with the Third Circuit, the U.S. District Court for the Middle District of Pennsylvania in 2012 granted summary judgment to Cabot on the claim of the landowners, Wayne and Mary Harrison, that their lease had been fraudulently induced by misrepresentations by an agent of the maximum bonus payment a gas-producing company would pay per acre.
District Court Rejected Bid to Extend
Although the district court rejected the landowners' bid to invalidate the lease, it also turned aside Cabot's motion to award an extension of the primary lease term to account for the time the unsuccessful lawsuit was pending.
Cabot appealed to the Third Circuit, where it sought certification of the equitable extension question to the state Supreme Court (Harrison v. Cabot Oil & Gas Corp., 3rd. Cir., No. 12-03613, 9/19/12).
In an opinion joined by Justices J. Michael Eakin, Max Baer, Debra McCloskey Todd and Correale F. Stevens, Chief Justice Thomas G. Saylor said the court had accepted the certification, “recognizing that the issue was one of first impression and of significant public importance, given that its resolution may affect a large number of oil-and-gas leases in Pennsylvania.”
Cabot's position was grounded “squarely on the principle that a party to a contract is entitled to the benefit of its bargain,” Saylor said. The company maintained that, if one contracting party deprives the other of a benefit it had bargained for, “the law should correct the deprivation,” the judge said.
The company's stance was that “wrongful” lease validity lawsuits are motivated by “hopes of securing the freedom to pursue more lucrative arrangements,” according to the decision.
Plaintiffs Say Companies Can Still Negotiate
The Harrisons, however, cited district court cases ruling against extending primary lease terms beyond their expressed period and said that oil and gas companies “frequently enter into leases” and “then delay drilling according to their own interests and timetables,” the judge said.
“Moreover, according to the Harrisons, such companies are readily capable of negotiating appropriate tolling provisions in connection with their leases to account for the prospect of delay occasioned by lessor validity challenges,” he said.
“Given such considerations, the Harrisons described the equitable-extension principle as nothing more than a ‘judicial affirmative action program’ for oil and gas producing companies, which ‘abuses landowners who have done nothing other than exercise their legal rights,’ ” the judge said.
The landowners also differed with Cabot's position that “the mere filing of a declaratory judgment action represents a repudiation of a lease,” Saylor said. Under Pennsylvania law, he said, more is required than “the mere assertion of a challenge to the validity of an agreement to demonstrate such repudiation.”
The court declined to “adopt a special approach to repudiation pertaining to oil-and-gas leases, as a substantial number of other jurisdictions would appear to have done.”
Although equitable extension may be available in cases where landowners have affirmatively repudiated a lease, “the mere pursuit of declaratory relief challenging the validity of the lease does not amount to such,” Saylor said.
Leveling of Playing Field Seen
Deborah Goldberg, managing attorney for Earthjustice in New York, said in a telephone interview that while the decision doesn't directly address the environmental issues related to hydraulic fracturing in the Marcellus Shale region of Pennsylvania, it does mean “that people who feel they were duped into signing leases will not be deterred from suing by the prospect that, if they lose, the leases could be extended.”
It thus may reduce the leverage oil and gas companies exert in negotiating leases and make them “less aggressive” in the terms they seek, she told Bloomberg BNA. None of the landowners she represented in the amicus curiae brief in the case intend to renew their leases, she said.
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Miffed at the Fracking Ban, These New York Towns Hope Pennsylvania Might Adopt Them
Feb 19, 2015 | The Washington Post
By Jeff Guo
The early United States, like the early solar system, was a violent, unstable place. Claims on the land were vague, so states fractured freely. New York tussled with New Hampshire over a territory that would later become Vermont. Georgia calved Alabama and Mississippi. Kentucky spun off from proto-Virginia; Tennessee from proto-North Carolina.
The nation’s borders have long since cooled into place. It’s hard to imagine California splitting into six new states, or Western Maryland divorcing from Annapolis, or Colorado undergoing mitosis. Still, you see secession movements like these popping up everywhere these days, because they serve an underlying truth: Rural and urban America are drifting apart.
Take this latest effort, by a set of New York towns on the Pennsylvania border. Upset by Gov. Andrew Cuomo’s hydraulic fracturing ban in December, these places have threatened to abscond for Pennsylvania, which allows fracking. Yesterday, local television station WBNG reported that the Upstate New York Towns Association is preparing research on behalf of 15 municipalities interested in secession.
This rural section of New York, close to Pennsylvania, has suffered acutely in recent decades. Manufacturing has withered and farming is getting tougher. People prayed for a casino to jump-start the local economy, but in December the state gaming board decided not to give them one. Many see these oil and gas wells as their last chance for economic revitalization.
“The Southern Tier is desolate,” one town supervisor told WBNG. “We have no jobs and no income. The richest resource we have is in the ground.”
The association says that tax circumstances might also be better in Pennsylvania.
Nick Barone lives in Deposit, N.Y., a town of 1,712 just five miles from the Pennsylvania border. He’s the president of the town’s chamber of commerce. Most people in Deposit are in favor of fracking, himself included, Barone said. “I just don’t understand why our governor doesn’t want to do it,” he added. “It doesn’t make sense.” News of the secession plan hasn’t yet reached him.
For towns to leave the state would be difficult, requiring buy-in from lawmakers in both New York and Pennsylvania. There’s no guarantee, after all, that Pennsylvania would even want these towns. Congress would probably have to weigh in as well.
Another recent proposal would create an upstate autonomous region called New Amsterdam, with its own governor, supreme court and secretary of state. New York would still exist on paper as one state, but it would function as two.
“It is equally unfair to both upstate and downstate residents to share a representative government,” advocates for the plan explain on their Web site.
And that gets to the crux of the matter. Since the early years of the Constitution, states have retained powers because they are different and should be allowed to govern differently, or so the argument goes. But the real divisions in America now aren’t between the states, but between their urban and rural citizens, groups who face vastly different economic circumstances. Though secession campaigns can seem frivolous — and it’s unlikely that any will succeed — these threats reflect real desperation in rural America.
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Alberta Fracking Quake Fears Prompt Tougher Rules for Shale Area
Feb 19, 2015 | Bloomberg
By Rebecca Penty
Shale producers in Alberta’s Duvernay region are being asked to monitor and prevent earthquakes after regulators linked a series of seismic events over the last two months to hydraulic fracturing.
Producers must test for quakes and, if they detect seismic events greater than magnitude 2.0 on the Richter scale, take measures to reduce the impact of their activity, the Alberta Energy Regulator said Thursday. If a tremor is detected above magnitude 4.0, producers must immediately halt drilling and can’t resume until they get approval from regulators.
Provincial regulators are blaming fracking for a cluster of 18 quakes with magnitudes as high as 3.7 in December near Fox Creek, Alberta, and several others in January, including one with a magnitude of 4.4. Chevron Corp., Royal Dutch Shell Plc and Encana Corp. are among companies drilling for natural gas liquids in the Duvernay region.
“While these seismic events have not impacted public safety, it is our job to take this precautionary step to ensure energy resources in this area are developed in a safe and responsible manner,” Jim Ellis, chief executive officer of the Alberta Energy Regulator, said in a statement.
Fracking, which has been used in Alberta since the 1950s, includes the pumping of vast amounts of water, sand and chemicals underground at high pressure to free oil and gas from tight rock formations such as shale.
The technique has been tied to earthquakes across North America.
Oklahoma has seen the largest increase in earthquakes that scientists have tied to wastewater disposal from fracking. Last year 585 tremors were registered, according to state figures. Between 1990 and 2008, there were never more than three of magnitude 3.0 or greater in the same year.
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Rigs Running Hot Offshore as Shale Scales Back
Feb 19, 2015 | Bloomberg
By Zain Shauk
While U.S. drilling on land has fallen along with the price of crude, the risky and expensive drive to pull oil from the depths of the Gulf of Mexico is showing little evidence of a slowdown.
Oil rigs working in the Gulf will increase by more than 30 percent this year compared with 2014, according to data from Wood Mackenzie, an industry consultant. At the same time, the number of land-based rigs has fallen by a third since October, bearing the brunt of industry-wide cutbacks that have shed tens of thousands of jobs in the U.S.
The reasons are two-fold. The rise in deep-water drilling stems from years of planning and billions of dollars already invested, and the payoff can be considerable. Anadarko Petroleum Corp.’s Lucius platform can handle as much as 80,000 barrels a day from the six wells that feed into it, an output that would take hundreds of onshore wells to reach, according to John Christiansen, a company spokesman.
“The economic life of these projects is in the decades,” said Fadel Gheit, an analyst for Oppenheimer & Co. in New York. “You’re going to milk this cow for another 30 years, so you don’t care what the price of milk is today.”
Large oil producers including Anadarko, BP Plc, Chevron Corp. and Royal Dutch Shell Plc are continuing to invest offshore even as shrinking profits force them to cut back on spending. BP has 10 rigs active in the Gulf of Mexico, which it says is a company record.
By contrast, in the oilfields of Texas, Colorado and North Dakota, producers are scrambling to rein in drilling as oversupplies have cut crude prices by more than half since June. Last Steps
It’s a different calculus for prolific deep-water wells, which can produce far greater quantities of crude over a longer time span than a typical onshore well. The new wells are the latest step in a long-term development plan where much of the investment -- in pipelines, platforms and subsea processing systems -- already has been made.
“When you’re 90 percent complete, you’re not going to stop,” Gheit said.
Gulf of Mexico production will jump from 1.4 million barrels per day in 2014 to an average of 1.58 million barrels per day in 2016, a 13 percent increase, according to Wood Mackenzie projections. The growth in deep-water will add to total U.S. output, which is projected to grow by 14 percent over that period as rising efficiency continues to push shale production up despite declines in drilling. ‘Mega Projects’
Deepwater oil developments are so enormous they are referred to within the industry as “mega projects,” featuring platforms that can cost as much as $2 billion, wells that cost about $300 million to drill, and a system of pumps and processing equipment along the seafloor that can add another $100 million, Sandeen said.
“These aren’t onshore projects where you’re going to produce from a well for a few years,” said Jackson Sandeen, a senior research analyst covering the Gulf of Mexico for Wood Mackenzie. “These are 30 to 40 year projects where a slight bump in the road in the short term is not really going to affect the project in the long term.”
The jump in rig activity in the deep Gulf of Mexico isn’t focused on exploration wells, where companies seek to confirm that oil prospects exist. Oil giants are cashing in on previously confirmed discoveries by drilling wells into reservoirs that have already proven to be productive, and where they already have platforms built or under construction. Falling Rates
New projects, however, aren’t likely to get started unless oil prices rise to around $75 for a sustained period, said Brian Youngberg, an analyst for Edward Jones in St. Louis. That’s leaving a fleet of brand new rigs entering the market with fewer prospects for contracts.
The rental rates for deep-water drilling rigs, which last year cost more than $500,000 a day to operate, have already fallen to $400,000 a day as fewer companies plan new projects, said Cinnamon Odell, senior rig analyst for industry consultants IHS Inc.
The costs of deep-water wells during a time of low oil prices is drawing some companies into partnerships to share costs as they push ahead on existing projects. BP, Chevron and ConocoPhillips earlier this year said they would collaborate as they drill Gulf of Mexico wells in 24 jointly held offshore leases. As part of the deal, BP sold Chevron half of its equity interests in the Gila and Tiber fields. The three companies also have joint ownership interests in exploration blocks east of Gila, known as Gibson, where they plan to drill in 2015.
By combining financial resources amid low crude prices, the companies are increasing the likelihood that they can find and develop new oil in the Gulf, which remains the most attractive offshore oil region in the world, Youngberg said.
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Wyoming Lawmakers Mull Bill to Certify Carbon Storage Used in Oil Recovery
Feb 20, 2015 | BNA Daily Environment Report
By Tripp Baltz
A Wyoming legislative committee has approved a bill (S.F. 84) that would provide for the state to certify the quantity of carbon dioxide stored incidentally in certain oil and gas production activities.
The House Minerals Committee approved the bill Feb. 18 on 8-0 vote and recommended approval in the full House, where the bill is now pending. The Senate approved the bill Feb. 5 on a 26-1 vote, and the governor is expected to sign it.
The legislation would establish a new process authorizing the Wyoming Oil and Gas Conservation Commission to issue orders recognizing and certifying permanent underground storage of captured carbon dioxide during enhanced oil recovery operations. It could affect companies such as Anadarko Petroleum Corp. and Denbury Resources Inc.
Pumping Pressurized Carbon Dioxide
Oil producers use enhanced recovery to pump pressurized carbon dioxide into the earth surrounding an oil well, Michael Von Flatern (R), sponsor of the measure, told Bloomberg BNA Feb. 19. Under the bill, enhanced recovery would not be subject to existing state laws regulating underground sequestration of carbon, he said.
“That's a problem,” Jill Morrison, organizer with the Powder River Basin Resource Council, an environmental group based in Sheridan, told Bloomberg BNA Feb. 19. She said the bill would provide an exemption from Wyoming rules governing carbon sequestered through enhanced oil recovery.
Wyoming's existing geologic sequestration laws were developed from 2007 to 2010 to prevent carbon leaks and contamination of drinking water supplies, she said.
Wyoming's carbon sequestration rules apply at the cessation of oil and gas operations, and they are geared to accomplish one of two outcomes: the conversion of a site to underground sequestration, which is then regulated by the Wyoming Department of Environmental Quality, or the plugging and abandoning of applicable wells under oil and gas commission rules.
Use of Valuable Resources
Von Flatern said the bill is designed to encourage the use of valuable carbon dioxide resources that might otherwise be stranded. He said Wyoming Gov. Matt Mead (R) supports the bill and will sign it, viewing it as “good economic development” for the state.
Morrison said the bill is being promoted by Denbury Resources, a Plano, Texas-based oil and gas operator, and is unnecessary since Wyoming rules already “protect public safety, health and the environment from carbon dioxide leaks.”
Greg Schnacke, executive director of governmental relations for Denbury, told Bloomberg BNA Feb. 19 that having state-certified carbon dioxide injection will support the financial requirements that future projects need by providing a method for proof of regulatory compliance.
Denbury contributed $2,000 to Mead's 2014 reelection campaign, according to the National Institute on Money in State Politics. Mead serves on the Wyoming Oil and Gas Conservation Commission. Denbury also contributed $500 to Rep. Tom Lockhart (R), chairman of the House Minerals Committee, the institute said.
The bill also would cover Anadarko Petroleum Corp., which has employed enhanced oil recovery in Wyoming, Morrison said.
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FERC Warned About Infrastructure Needs Linked to EPA Rule
Feb 19, 2015 | E&E News PM
By Hannah Northey
State regulators and industry groups warned the Federal Energy Regulatory Commission today that growing challenges in building new gas pipelines and power lines could put a pinch on states trying to comply with U.S. EPA's climate rule.
Panelists at FERC's first technical conference on the Clean Power Plan said environmentalists' opposition to new infrastructure could complicate compliance with the Obama administration's climate goals.
FERC Commissioner Philip Moeller, after hearing about difficulty in siting new power lines, called for federal coordination.
"Some agency of the federal government has to be empowered to bring the other ones together and highlight the importance that it is extremely difficult to site pipes and wires," Moeller said. "Without those pipes and wires in place, I don't know how this plan works." Moeller said an administration agency like the Energy Department or EPA would likely fit the bill because it could compel participation.
Judi Greenwald, DOE's director for climate, environment and energy efficiency in the Office of Energy Policy and Systems Analysis, told FERC commissioners that energy efficiency is expected to increase and avoid the need to build new power lines.
But Moeller reiterated concerns that states have raised about embracing energy efficiency into a plan that's federally enforced. "A compliance plan eventually has to add up, and a state has to be comfortable with how it's enforced," he said.
Jim Hoecker, a former FERC chairman who is now general counsel of Wires, a nonprofit group of transmission owners, said EPA has said "virtually nothing about electric transmission in this rule" and called on FERC to work through its landmark Order 1000 -- a rule that requires regional transmission planning -- to identify the Clean Power Plan as a public policy priority.
Hoecker said that transmission cannot be a Band-Aid and that FERC needs to teach EPA about the difficulty of building new transmission lines. "This is absolutely critical that the commission be active as an educator and as a regulator, because this is happening all over your jurisdictional turf," he said.
Michael McMahon of Boardwalk Pipeline Partners said building larger pipelines can take up to three years, and the process hinges on companies securing customers -- and therefore capital -- and maneuvering an increasingly crowded permit queue. McMahon acknowledged there is excess capacity in the nation's pipeline system but said wiggle room isn't always located near areas of consumption.
"Timing matters," McMahon said.
Moeller also questioned DOE's conclusion that only "modest" natural gas interstate pipeline additions would be needed to comply with a national carbon policy.
DOE commissioned Deloitte MarketPoint to analyze demands on the power sector and the nation's gas pipeline complex under a "simple, illustrative" national carbon policy -- not EPA's proposal. The report found that a shift from coal to gas would require an infrastructure expansion that would be "modest, relative to historical capacity additions."
Deloitte reached that conclusion after analyzing three scenarios using the North American Integrated Model: a reference case that assumed no carbon policy, an "intermediate demand case" that assumed a carbon policy would be applied to the power sector, and a "high demand" case that assumed a carbon policy would be applied to both the power sector and accelerated coal-fired generation retirements.
Susan Tierney, a senior adviser at the Analysis Group who peer-reviewed DOE's report, said she agreed with the conclusion that gas infrastructure comes on much faster than other projects, including combined-cycle gas generation and other baseload generation or transmission.
Moeller said he didn't want to "shoot the messenger" but told DOE's Greenwald that the report was too optimistic (Greenwire, Feb. 10).
"The report was perceived as, whether you meant to or not, as rosy but ... it's not, and more a granular look at peak demand is what's necessary," Moeller said. "Some of my environmental friends are not thrilled by the thought of more pipelines in New England, but just about everybody else has recognized a need for that.
"What we're really talking about is peak capacity, when it's really needed, about 16 hours from now when it's really, really cold," Moeller added.
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Oil Industry Takes Aim At California’s War On Carbon
Feb 20, 2015 | The Sacramento Bee
By Dale Kasler
California’s effort to combat climate change was subjected to a fresh round of scrutiny Thursday as oil-industry representatives urged regulators to ease off on the state’s “low carbon fuel standard,” a centerpiece of the effort to rein in greenhouse gases.
A California Air Resources Board hearing on whether to renew the standard, known as LCFS, turned into a three-hour debate on whether the regulation is workable or effective. Environmentalists and executives who produce ethanol, biodiesel and other alternative fuels urged the agency to stay the course and keep the standard intact, saying it has helped usher in a new generation of greener products.
Oil-industry executives countered that the LCFS is unrealistic and must be adjusted.
Nick Economides, manager of state fuels regulation at Chevron Corp., said the Air Resources Board must move away from its “strategy of higher-than-achievable goals.” He said it relies heavily on the development of alternative fuels, many of which haven’t yet panned out. “We have invested heavily (in alternative fuels) and regretfully, we have not been successful,” he said.
The agency is expected to make a final decision during the spring or summer.
The LCFS originally took effect five years ago. It’s coming up for renewal as public debate intensifies over California’s climate-change law, Assembly Bill 32. The state’s cap-and-trade program, which puts a price on the right to emit greenhouse gases, was broadened in January to include motor vehicles. That resulted in an increase of several cents a gallon in gas prices shortly after New Year’s Day.
The LCFS targets greenhouse gases from a different angle. It requires producers of transportation fuels to reduce the “carbon intensity” of their products by 10 percent by 2020. Carbon intensity doesn’t just measure the carbon coming out of tailpipes; it takes into account the process of manufacturing and distributing the fuels. That includes, for example, the amount of carbon released into the air when corn is planted to create feedstock for ethanol, as well as the greenhouse gases generated when a refinery turns crude oil into gasoline.
While not as well known as cap and trade, the LCFS is highly controversial among those who work in the fuel business. It is up for renewal because the 5th District Court of Appeal ruled in 2013 that the Air Resources Board violated provisions of the California Environmental Quality Act when it adopted the LCFS in 2009. The court didn’t throw the standard out but told the agency to redo the necessary environmental reviews and then vote whether to renew it. The agency also is proposing to revise some of the computer models used to measure the carbon intensity of various fuels.
It seemed clear Thursday that – regardless of industry complaints – the Air Resources Board will renew the standard later this year. A staff report to the board said the LCFS will eliminate an estimated 35 million tons of carbon between 2016 and 2020. Board Chairwoman Mary Nichols said the regulations “have all been working quite well despite the efforts over the years to undermine ... this rule.”
Board member Daniel Sperling, a transportation professor at UC Davis who helped conceive of the LCFS, said he understands why the petroleum industry chafes against the regulation.
“We’re telling them, ‘We want you to change your business model and your main product,’” Sperling said. “I can sympathize with the oil industry.”
A string of environmentalists and alternative-fuels providers chimed in with support for the standard. The LCFS works on market principles; fuel producers that surpass the standard are awarded credits, which they can sell to companies struggling to comply with the rules. The credits, currently worth around $25 per ton of carbon, have created financial incentives that are helping fledgling industries like biodiesel expand.
“Ten years ago, you were buying biodiesel by the jar,” said Shelby Neal of the National Biodiesel Board, a trade association. Now the industry is creating 1.4 billion gallons a year of the low-carbon fuel.
“We’re here today, and we’re affordable,” Neal told the agency.
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U.S. Energy Production Benefits Highlighted By Report of President's Economic Advisers
Feb 20, 2015 | BNA Daily Environment Report
By Alan Kovski
Growing domestic energy production has contributed broadly to employment and economic growth while laying a foundation for a low-carbon energy future, according to the 2015 Economic Report of the President, released Feb. 19.
During the last three years, oil and natural gas production have contributed to growth of 0.2 percent to 0.3 percent in gross domestic product each year, said the annual report from the White House Council of Economic Advisers.
That rate extended over enough years “adds up to quite a lot of growth,” CEA Chairman Jason Furman said at a news conference hosted by the Christian Science Monitor.
A shrinking trade deficit in petroleum has accounted for more than a fifth of the decline in the U.S. trade deficit since 2006, the report said.
At the same time, subsidies and mandates for renewable energy have helped advance President Barack Obama's Climate Action Plan to shift away from the carbon-based fuels that contribute to climate change, the report said.
Stress Put on Climate Policy
The report's chapter on energy was largely an advocacy document for the president's energy and climate policies. It repeatedly promoted the president's “all-of-the-above” energy strategy while stressing the need to move toward wind, solar and other renewable energy sources.
“The need to act now to stem climate change is clear; delaying would only lead to larger costs for future generations,” it said.
In keeping with the climate change emphasis, the report cited federal tax credits for wind and solar energy. The American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5) also provided developers of wind, solar and other low-carbon projects the option of receiving grants rather than tax credits, and that program has provided almost $22 billion in grants since 2009, the report said.
The tax incentives “are quite important, and that's why we've proposed to make them permanent,” Furman said.
‘Dramatic Rise' in Renewables
The White House report contrasted sharply with the data of the Energy Information Administration, the statistical branch of the Energy Department. As a relatively independent federal agency, the EIA releases its data without taking policy positions.
The White House report hailed “a dramatic rise in the use of renewables for electricity generation” and noted the rapid percentage growth rates in wind and solar energy. It also pointed to sharp growth in liquid renewables because of ethanol and biodiesel.
The report said wind-powered generation nearly tripled from the start of 2009 to the start of 2014 and solar-powered generation nearly quadrupled over the same period. Ethanol and biodiesel consumption expanded from less than 2 billion gallons in 2000 to more than 15 billion gallons in 2013, the report said.
But those gains are from small base amounts and still amount to small percentages of total U.S. energy, as indicated by EIA data. Wind and photovoltaic energy together amounted to only 2.2 percent of U.S. energy consumption in 2014, and ethanol and biodiesel together totaled only 1.3 percent of U.S. energy consumption in 2014, according to the EIA.
Wind farms and solar photovoltaics are used for electricity generation. EIA data on net electricity generation in 2014 show wind accounting for 4.5 percent and solar accounting for one-half of one percent.
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Feb 19, 2015 | The Hill - Op-Ed
By Gerry Anderson
After the Environmental Protection Agency (EPA) issued its proposed guidelines last June to reduce carbon emissions from existing power plants, the agency was flooded with millions of comments from a broad range of interested parties. Among those submitting comments were the nation’s electric utilities, which are uniquely tasked with implementing EPA’s guidelines, known as the Clean Power Plan, while also providing reliable and affordable electricity, around the clock, for more than 300 million Americans.
As the generators of electricity and operators of the nation’s expansive and interconnected electric grid, electric utilities are pleased that the Federal Energy Regulatory Commission (FERC) is hosting a technical conference this week in Washington to discuss how the Clean Power Plan will impact the reliability of the nation’s electric grid. EPA’s understanding of the electric system could be enhanced by working more closely with FERC, which is responsible for system reliability issues.
It is worth underscoring that our industry has a strong track record when it comes to reducing emissions associated with electric generation. And we are committed to finding a workable path to achieving the Clean Power Plan’s proposed reductions, while also ensuring the continued reliable and affordable delivery of electricity.
That said, there is a feature of the Clean Power Plan that is unworkable and unnecessarily risky.At first glance, it may appear that EPA’s proposed guidelines give states until 2030 to achieve compliance. In large measure, this is not the case. That’s because EPA has proposed stringent interim targets that start in 2020. Because of the way the interim targets are designed, 80 percent of states must achieve more than half of their 2030 emission rate goals by 2020 and 11 states must achieve 75 percent or more of their 2030 goals by 2020.
The speed and scope of the changes that the 2020 compliance targets would require are unprecedented and, thus, threaten the reliability of the system. After state plans are finalized and approved by EPA in the 2017 to 2018 time frame, most utilities and states effectively will have less than three years to complete a host of major compliance initiatives.
Three years is simply not enough time to make the substantial changes in the generation resource mix, energy infrastructure, and market mechanisms required to make the proposed 2020reductions. Even with enhanced efficiency and reductions in demand growth, the bulk of the emission reductions will require closing coal plants and, in parallel, building new natural gaspower plants, natural gas pipelines, renewable generation, and electric transmission.
It’s important to remember that all new infrastructure must be planned, permitted, approved by state officials, reviewed for reliability impacts, and constructed. Completing a natural gas pipeline can take five years; the planning, siting, and construction of new natural gas power plants require four years; and completing a transmission line takes up to eight years.
As recently noted by the North American Electric Reliability Corporation (NERC)—the entitymandated by federal law with maintaining the reliability of the power grid—these time frames are, in some cases, best-case scenarios. Longer transmission lines have recently taken more than 10 years to complete—from planning, siting, and permitting, through construction. In addition to threatening reliability, the proposed 2020 interim targets may sharply increase electricity prices for customers if major changes have to be implemented quickly.
My home state, Michigan, illustrates the conflict between the proposed guidelines and electricreliability that FERC needs to help EPA address. The 2020 target requires Michigan to achieveapproximately 75 percent of its 2030 reduction by 2020, despite the fact that our state plan to address the regulation is unlikely to be finalized until 2017 or 2018. Among the issues we will have to manage are the retirement of on the order of 60 percent of the state’s coal-fired generation, the approval and building of new gas generation, renewable generation, gas pipelineinfrastructure and electric transmission. This conflict is not unique to Michigan—it is faced by the majority of states.
Before the Clean Power Plan is finalized, it is critical that EPA recognize the complexities of operating and maintaining a reliable electric grid and include a more reasonable glide path to 2030 emission reduction goals that maintain reliability at a reasonable cost. Unless the 2020 interim goals are eliminated or substantially revised, states simply cannot achieve significant emission reductions without jeopardizing reliability and sharply increasing rates.
It is critically important that stakeholders and agencies tasked with ensuring reliable and affordable electricity for customers, including FERC, provide feedback to EPA on the time required to design, plan, permit, and construct replacement generation and new or expanded transmission lines and pipelines. FERC also must work with EPA to make clear how the interconnected power system operates, what is required to ensure its reliable operation, and how long necessary changes to the system will take.
Finally, EPA should keep in mind the importance of the existing nuclear fleet when it comes to maintaining reliability and reducing emissions. The proposed rule relies on the existing nuclear fleet to achieve emission reductions, but does not include any mechanism to incent its continued operation in the face of challenging economics. Similarly, the guidelines do not recognize the value of new and imported zero-emissions sources of hydropower, including hydropower imported from Canada. The nation cannot achieve its carbon-reduction goals without the continued operation of the existing nuclear fleet and new and existing hydro plants.
EPA’s Clean Power Plan must respect how the electric system works and provide adequate time to make the necessary changes to achieve carbon emission reductions that ensure the continued clean, reliable, affordable operation of our nation’s electric grid for the benefit of all customers. -
‘Safety Valve,’ Realistic Targets Vital To EPA Clean Power Plan, States, Utilities Say
Feb 20, 2015 | BNA Daily Environment Report
By Andrew Childers
A regulatory “safety valve” that would allow state and utilities additional time or flexibility to meet the Environmental Protection Agency's proposed carbon dioxide limits for power plants is vital to the rule's success, regulators and utility officials said Feb. 19.
To be most effective, the safety valve provisions and requirements need to be built into the EPA's final Clean Power Plan rule rather than tacked on after the fact, as was done with the agency's air toxics standards for power plants, state and utility representatives told the Federal Energy Regulatory Commission.
Janet McCabe, the EPA's assistant administrator for air and radiation, said states have offered practical recommendations for how such a safety valve could be constructed.
“EPA is taking all of this info and the suggestions commenters have provided to us very seriously as states and generators move forward with meeting their emissions reductions obligations,” she said.
The so-called safety valve would give states and utilities additional time or compliance options to meet the carbon dioxide emissions reductions targets in the EPA's Clean Power Plan in the event of unforeseen circumstances such as generation retiring earlier than anticipated or delays in developing additional natural gas infrastructure. It would allow states to continue operating dirtier generating units to ensure grid reliability.
The EPA included a similar safety valve in its mercury and air toxics standards for power plants, but some states and utilities said it was included after the rule was completed, making it less effective than it could have been. And unlike the air toxics standards, which set standards for individual power plants, the Clean Power Plan looks at the power system as a whole. That needs to be taken into consideration as the EPA develops a safety valve, panelists said.
“It is really important in our view to write the processes into the final rule itself,” Craig Glazer of the ISO/RTO Council said.
FERC on Feb. 19 convened the first of four workshops examining the potential effect of the EPA's proposed Clean Power Plan on the reliability of the electricity generating system. The proposed Clean Power Plan (RIN 2060-AR33) would set unique carbon dioxide emissions targets for the power sector in each state. State regulators would be tasked with determining how best to achieve those reductions.
Interim Targets Need Adjustment
States and utilities also said the EPA's proposal to set an interim target that front-loads many of the required emissions reductions could pose reliability concerns. Instead of setting an interim goal that states must achieve between 2020 and 2029, the EPA should allow states to craft their own path for coming into compliance with the final 2030 target, they said.
For example, Susan Bitter Smith, chairwoman of the Arizona Corporation Commission, said it will be impossible for her state to meet the EPA's proposed interim target, which requires the majority of the emissions reductions to be achieved by 2020. The state's natural gas pipelines are already operating at capacity, and 80 percent of the state's land is either publicly owned or owned by tribes, making siting new infrastructure extremely difficult.
“In July, every single amount of power being generated from our power plants is utilized. We have no room for error,” Smith said.
The EPA has indicated it would be open to revising the interim targets. Most recently, Administrator Gina McCarthy told the National Association of Regulatory Utility Commissioners the agency could revise its approach to the interim targets in the final rule (32 DEN A-1, 2/18/15).
“Moving the glidepath will be very, very helpful,” Alexandra Dunn, executive director and general counsel of the Environmental Council of the States, said. “It will allow states to plan over a longer period of time. I think EPA has heard so much angst about the 2020 early deadline that I would predict they will make some changes there in the final rule.”
The rule's timing could limit the ability of states to consider collaborative approaches. With the final rule expected this summer, states would have to begin submitting their implementation plans in 2016. Though states can get extensions to develop collaborative plans, it is not sufficient to facilitate the kind of cooperation necessary, Dunn said.
“I've had states say, ‘I don't have time to work across state lines. I'll have to write a plan that just addresses my state,’ ” she said.
Infrastructure Timing Important
McCabe touted the EPA's decision to provide states with a 15-year compliance period that would allow states and utilities to make the investments necessary to achieve the required carbon dioxide reductions. However, utility groups say more time will be necessary to develop the infrastructure necessary to comply with the proposed rule. Siting and building new natural gas pipelines can take three years, and building new transmission infrastructure can take a decade or more, according to utility groups.
Though the Energy Department said some natural gas pipelines are not currently being used at their capacity, Michael McMahon, senior vice president and general counsel of Boardwalk Pipeline Partners, who spoke on behalf of Interstate Natural Gas Association of America, said those underutilized pipelines may not be located where they could serve the areas of growing demand for natural gas for electricity generation. New natural gas pipelines are likely to be necessary to comply with the Clean Power Plan, he said.
New infrastructure development could be further complicated by new draft guidance from the White House Council on Environmental Quality that instructs federal agencies to study the climate change implications of projects under review, Susan Kelly, president and chief executive officer of the American Public Power Association, said.
States Fear Federal Enforceability
States may be hesitant to take advantage of the emissions reductions tools outlined by the EPA, particularly energy efficiency programs, because including those provisions in an implementation plan would make them federally enforceable.
“To the degree those get put into a [state implementation plan], they feel there's a big target on their chests for walking into lawsuits,” FERC Commissioner Tony Clark said.
Dunn said states have not yet begun drafting their implementation plans due to uncertainty about what the final version of the Clean Power Plan will look like. However, she agreed that some states are already leery of making energy efficiency programs that were previously voluntary a federal obligation.
“States are going to be reluctant to bring things into their plan that are currently voluntary partnerships with business,” she said.
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FERC Meeting Addresses Concerns Over ESPS' Citizen Suits, Safety Valve
Feb 19, 2015 | InsideEPA
By John Siciliano
EPA's acting air chief Janet McCabe is acknowledging concerns from state and federal officials that states could face citizen suits seeking to enforce provisions of their plans to comply with the agency's greenhouse gas (GHG) standards for existing power plants and is vowing to address the concerns and preserve states' flexibility.
Speaking Feb. 19 at the Federal Energy Regulatory Commission’s (FERC) first-ever technical conference on the implications of EPA’s existing source performance standards (ESPS), McCabe said said she sees a “potential” for states to be sued by third parties for their attempts to comply with the ESPS, where the states’ use of compliance flexibilities under the rule could become subject to litigation.
“As a former state regulator, . . . I am extremely sensitive to this kind of issue and we tried to be extremely sensitive to this kind of issue, and we tried to be extremely sensitive to that in the proposal [by] recognizing a potential tension there,” McCabe said.
She added: “There are some things we can think about in the final rule to provide space for states to design plans that wouldn't necessarily bring every last bit into federal enforceability. We want to work very hard to find a way to be responsive to those concerns.”
McCabe's commitment was one of several areas where regulators and other participants in the conference appeared to suggest ways to address concerns over the rule. For example, representatives of environmental, electricity and grid groups agreed on the need for a relatively narrow reliability “safety valve” to address adverse grid reliability impacts, though they differed on how such a mechanism should be structured.
Under the ESPS, EPA sets rate-based GHG emission targets for each state and then requires states to submit compliance plans detailing how they plan to attain the targets. Once approved by EPA, those compliance plans are enforceable by third-party suits authorized by litigation rights contained in the Clean Air Act.
Given the enforcement option, critics of EPA's rule fear that the ESPS will prompt a host of citizen suits that will give environmentalists tremendous power to dictate energy supply policy for states. As a result, they fear the suits will undermine the flexibility that EPA has vowed to provide states as they seek to comply with their GHG targets.
“I think states are going to be reluctant to bring things into their plan that currently are sort of voluntary partnerships with businesses. They want that to be discretionary," Alexandra Dunn, executive director of the Environmental Council of the States, a group that represents state environmental commissioners, told the FERC conference.
“If [the concept of federal enforceability] is interpreted too rigidly, we will see inflexible approaches to state plans. If putting it in the plan makes it federally enforceable, that's going to be a deterrent,” she said.
Dunn also cautioned that fossil fuel-fired power plants, which are most clearly subject to regulation under section 111(d) of the air act, could be forced to bear the brunt of emission reduction requirements in state compliance plans if other “building block” strategies, such as increased use of natural gas and greater use of renewable energy and energy efficiency, do not withstand legal scrutiny or do not deliver reductions.
“Do those plants end up at the end of the day having to sort of bear the shortfalls of the other building blocks not delivering as projected? There is some risk there," she said.
FERC Commissioner Tony Clark, one of the two Republicans on the commission, echoed Dunn's concerns, warning that many states believe if they include measures in compliance plans later be subject to suit, they are “effectively walking into a buzz saw where their entire state plan can become subject to judicial fiat,” he said.
'The Bane' Of States
Clark said such suits are “the bane” of state government, adding that many utility regulators raised during the winter meeting of the National Association of Regulatory Utility Commissioners (NARUC) in Washington, DC, held earlier this week. State commissioners “feel there is a big target on their chest[s]” in being subject to “judicial fiat” if someone, or some group, does not believe a state's compliance strategy is adequate or underplays a particular resource, he said.
For example, Kenneth Anderson, Jr, of Texas Public Utility Commission, speaking at the NARUC meeting, said regulators are “very concerned with federal enforceability of state implementation plans, and particularly by third-party plaintiffs that could bring suit in federal court.”
“We simply aren't going to turn the keys to [the Texas grid] over to the Sierra Club in [a] federal lawsuit,” he said, noting that environmentalists tend to be the largest litigants in cases regarding the Clean Air Act. “It just won't happen.”
Anderson said Texas “won't do a plan if that’s the risk. We won’t turn our energy efficiency program over to the Sierra Club or other environmental groups that really don't have a clue about how energy markets work.” He explained that the state may not write a compliance plan and let EPA implement a federal plan unless there is federal enforcement litigation relief, while also questioning whether such relief is possible.
Given such concerns, Clark said EPA “has an interest in getting as many states willing to play ball as possible in terms of setting up [state implementation plan (SIP)] or regional plans because there are a lot of things that states can voluntarily put into a SIP that EPA can’t mandate as part of a federal implementation plan.”
Clark asked McCabe if there is “a way for EPA to address that concern through the rule itself to limit some of the exposure states have that might encourage them to play ball? Or is this just embedded in the [air] act itself” where Congress would have to provide the answer?
McCabe did not address the need for Congress to act, but reiterated that EPA is aware of the concerns and will work with states to help resolve the potential tension between state plans, EPA enforceability if they fulfill their obligations and the potential of state plans being subject to lawsuits leveled by third parties. “We want states to have as much flexibility as possible, but we also recognize the very real impulse to not put into a federally enforceability world things . . . that traditionally have not been” included, she said.
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Power Plant Mercury Standards Litigation May Signal High Court's View of Deference
Feb 20, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The U.S. Supreme Court's consideration of litigation challenging mercury and air toxics standards for power plants will be the next signal of how much judicial deference the Environmental Protection Agency and other federal regulations are afforded in interpreting statutory language, a panel of attorneys involved in environmental litigation said Feb. 19.
Speaking at an event sponsored by the D.C. Bar, the attorneys discussed whether the EPA should expect to receive less judicial deference following a 2014 Supreme Court decision that limited the agency's greenhouse gas permitting program.
In that 5–4 decision, the Supreme Court struck down the EPA's tailoring rule, which it held to be an “impermissible rewriting” of an unambiguous statutory threshold in the sections of the Clean Air Act covering prevention of significant deterioration construction and Title V operating permits (Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 78 ERC 1585, 2014 BL 172973 (2014); 121 DEN A-1, 6/24/14).
Thomas Lorenzen, a partner at Dorsey & Whitney LLP, said the Supreme Court's view of judicial deference “maybe hasn't played itself all the way out yet.”
Upcoming Supreme Court consideration of the EPA's power plant standards for emissions of mercury and other hazardous air pollutants, as well as a lawsuit challenging the tax-credit subsidies for health care under the Patient Protection and Affordable Care Act, both will shed further light on the court's views, according to Lorenzen.
Chevron Case Raised
“That's where we're going to see whether Chevron has really changed,” he said.
Lorenzen was referring to the Supreme Court's 1984 decision in Chevron U.S.A. Inc. v. NRDC, which established a two-part test for review of agency actions. Under Chevron, a court first must decide whether the plain text of the law is clear. If the law is ambiguous, then the court must decide whether the agency's interpretation of the law is permissible.
John Walke, clean air director for the Natural Resources Defense Council, said it remains to be seen whether the court's view of Chevron deference has changed. He said there are opportunities to read the decision in Util. Air Regulatory Grp. v. EPA narrowly based on it being a “special and unique case.”
Called ‘Exceptional Case.'
Kate Konschnik, director of Harvard Law School's Environmental Policy Program, agreed there were several facts in the greenhouse gas permitting litigation that made it an “exceptional case,” including that the agency's interpretation of the Clean Air Act conflicted with numerical thresholds included in the Clean Air Act for permitting requirements.
The EPA's tailoring rule increased the statutory thresholds of 100 tons per year or 250 tons a year of emissions of a regulated pollutant to 100,000 tons of carbon dioxide or carbon dioxide equivalent greenhouse gases. The agency did that so only larger sources of greenhouse gas emissions would have to obtain Clean Air Act permits.
The Supreme Court found the EPA lacked the authority to change those thresholds to accommodate its interpretation of greenhouse gases triggering permitting requirements.
Uncertainty on Future Decisions
Konschnik said it is difficult to tell if the Util. Air Regulatory Grp. v. EPA opinion will mean something new for future litigation. A broad reading of the Supreme Court's decision could indicate a shift in who interprets ambiguous statutory language from federal agencies to the courts, she said.
The Util. Air Regulatory Grp. v. EPA opinion does make it “a lot more unclear” going forward how the EPA will fare in challenges to its regulations that are based on interpretation of the Clean Air Act, according to Konschnik.
In addition to the mercury and air toxics standards litigation, Konschnik also highlighted ongoing litigation challenging the Environmental Protection Agency's authority to regulate carbon dioxide emissions from power plants.
In its opening brief filed in the U.S. Court of Appeals for the District of Columbia Circuit, the EPA argued that its interpretation of ambiguously worded provisions of Section 111(d) of the Clean Air Act are due deference by the court (In re Murray Energy Corp., D.C. Cir., No. 14-112, brief filed 2/12/15; Murray Energy Corp. v. EPA, D.C. Cir., No. 14-1151, brief filed 2/12/15; 31 DEN A-1, 2/17/15).
Konschnik said in that case, there are statutory terms up for interpretation and a need for contextual reading of the Clean Air Act.
“What will be deferred to and what won't be deferred to?” she asked.
Review of ‘Seemingly Ambiguous' Language
Lorenzen said the litigation on the mercury and air toxics standards will focus on “seemingly ambiguous” language in the Clean Air Act.
The Supreme Court in November 2014 agreed to consider whether the EPA “unreasonably refused to consider costs” when it determined that it was “appropriate and necessary” to regulate emissions of hazardous air pollutants from power plants. Oral arguments in that litigation are scheduled for March 25 (Michigan v. EPA, U.S. No. 14-46, oral arguments scheduled 2/2/15; (22 DEN A-1, 2/3/15).
Walke of the NRDC noted that Justice Antonin Scalia, who authored the majority opinion in Util. Air Regulatory Grp. v. EPA, also authored a 2001 decision finding that the Clean Air Act unambiguously prohibits the EPA from considering implementation costs when setting national ambient air quality standards (Whitman v. American Trucking Ass'ns, 531 U.S. 457, 51 ERC 2089 (2001); 40 DEN AA-1, 2/28/01).
In that opinion, Justice Scalia indicated that Congress would have used other language in the Clean Air Act if it intended to require the agency to consider costs in setting national air standards to protect public health, according to Walke. There also is no “express mention” of cost in the term “appropriate and necessary” either, he said.
Dissenting Opinion Criticized
When asked about the Supreme Court's decision to review the D.C. Circuit's April 2014 decision to uphold the mercury and air toxics standards, Lorenzen said the dissenting opinion D.C. Circuit Judge Brett Kavanaugh wrote carries “substantial weight” with the conservative wing of the Supreme Court.
Lorenzen noted that it only takes four votes for the Supreme Court to decide to review a case and described Kavanaugh as a “darling” of conservative justices on the Supreme Court.
In the dissenting opinion, Kavanaugh wrote that considering cost is “common sense and sound government practice” for an agency tasked with deciding whether it is “appropriate” to move ahead with a regulation (White Stallion Energy Center LLC v. EPA, 748 F.3d 1222, 2014 BL 103957 (D.C. Cir. 2014); 73 DEN A-1, 4/16/14).
Walke criticized Kavanaugh's dissenting opinion, encouraging the audience to find the “winning case citation” that backs Kavanaugh's opinion on cost.
“It's just not there,” he said.
If the new test on agency interpretations of statutory language is what judges determine to be common sense, then Chevron “really has no meaning,” Walke said.
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White House Walks Away From Clean Coal, But Says It's Not Abandoning Carbon Capture
Feb 20, 2015 | BNA Daily Environment Report
By Jim Snyder, Mark Drajem and Matthew Philips
On the banks of the Illinois River, about 60 miles west of the state capital in Springfield, an old coal-fired power plant sits waiting for its future to arrive.
First opened in 1948, it's been dormant since 2011, when its owner, St. Louis-based Ameren, shut down the plant rather than retrofit it to meet federal standards.
Last year workers came to give it a makeover. Using almost $1 billion in stimulus money, the project was supposed to become the poster child for clean-coal technology. Rather than spewing into the sky, the carbon dioxide produced as the plant burned coal would be captured into a pipeline buried below corn and soybean fields. It would run 30 miles east to Jacksonville, where the gas would be injected 4,000 feet underground.
“It was like we were the phoenix rising,” says the plant's director, Mike Long.
The resurrection was short-lived. Earlier this month, the Department of Energy announced it was withdrawing support (24 DEN A-1, 2/5/15).
Environmentalists who want investment in renewable power technologies rather than fossil energy cheered the decision. “We don't need it, and we can't afford it,” Bruce Nilles, head of the Sierra Club's Beyond Coal campaign, says of carbon-capture projects.
President Obama has made addressing climate change a key part of his legacy. In November, he struck an historic agreement with Chinese President Xi Jinping to reduce greenhouse gas emissions (219 DEN A-8, 11/13/14).
The White House has backed solar and wind power projects and touted the benefits of the country's surging production of natural gas, which burns about 50 percent cleaner than coal, still the largest source of electricity in the U.S.
Last year, the Environmental Protection Agency proposed tighter standards for existing power plants.
Obama ‘Absolutely Not’ Retreating
The Illinois project, called FutureGen, was supposed to be a model for coal's climate-friendly future. It was backed by some of the world's biggest coal mining companies, who created a nonprofit, the FutureGen Industrial Alliance, to oversee the plant's conversion.
The White House saw FutureGen as a way to show leaders in China and India, where coal fuels more than half of electricity generation, that they can address their own carbon emissions without compromising economic growth. About 40 percent of man-made carbon emissions come from power plants.
The White House says the decision to walk away from FutureGen doesn't mean it's abandoning carbon capture. Since 2009, the Department of Energy has invested $6 billion in clean coal, and Obama included about $2 billion in tax credits for carbon capture in his proposed 2016 budget.
White House spokesman Eric Schultz said in a Feb. 6 briefing that the decision is “absolutely not” a signal Obama is retreating. “The administration has shown unprecedented support for clean-coal technologies,” he said.
Yet Obama decided not to fight for FutureGen after Republicans in Congress refused in December to extend a September deadline for using the stimulus money allocated to the project in 2009.
Backer Assails Action
“It makes no sense to pull the plug on $1 billion committed to America's signature near-zero emissions power project at such a critical time for these investments in technology,” said Gregory Boyce, chairman and chief executive officer of Peabody Energy, the world's largest private-sector coal company and one of FutureGen's backers.
SaskPower opened the world's first full-scale clean-coal plant last October in Canada's Saskatchewan province.
Known as Boundary Dam, the plant cost $1.2 billion, $190 million of which came from the Canadian government. Its emissions travel down a pipeline rather than up a smokestack.
But Boundary Dam enjoys one key advantage over FutureGen: Rather than simply burying its emissions, it sells the carbon dioxide to an oil company, which injects the compressed gas into old wells to coax more oil to the surface—a process known as “enhanced oil recovery.”
That turns the carbon dioxide into a marketable by-product, creating a steady revenue stream that offsets some of the costs of putting a lid on emissions.
Similar Project Under Way in Texas
A similar project is under way in Texas, where NRG Energy, a utility in Houston, is leading a $1 billion effort to build a clean-coal plant called Petra Nova. The project got $167 million in federal funds. As part of the deal, NRG bought a stake in a nearby oil field.
The idea is to inject Petra Nova's carbon dioxide emissions into the wells there, boosting production from 500 barrels a day to an estimated average of 15,000 barrels a day for 10 years.
Selling that oil is “the only meaningful way for us to generate a return for shareholders,” says John Ragan, president of NRG's Carbon 360 group.
Pairing carbon capture with the enhanced recovery of crude oil is hardly a vision for a perfect clean-energy solution.
It's another reason many environmentalists oppose clean-coal technology; it's also why FutureGen was so important to clean coal. If it worked, it would have demonstrated that carbon capture makes economic sense without having to rely on revenue from oil sales.
Seen as Shaky Business Model
As oil prices fall, financing clean coal through crude production has started to look like an increasingly shaky business model.
In early February, Schlumberger, the world's largest oilfield services company, said in a statement that its carbon-capture unit stopped taking on new business.
The four other clean-coal plants that are in the works in the U.S. are all designed to deliver their captured emissions to oil producers. With the exception of Petra Nova, they're all either behind schedule, over budget, or both.
The cost of building Southern Co.’s Kemper plant in Mississippi, which has received $270 million in federal funds, is now estimated at $6.2 billion, more than double its original price. The facility is scheduled to open in 2016.
In Texas, Summit Power is past its deadline to begin construction on a $1.7 billion coal plant that's been awarded $450 million in federal funding, as well as more than $600 million in tax credits. A plant in California that got about $400 million in federal money, the $4 billion Hydrogen Energy California project (HECA), is also behind schedule.
Other Projects ‘Likely Dead.'
Now that the Energy Department has pulled support for FutureGen, “I think both of those projects are likely dead,” says Jim Wood, who served as deputy assistant secretary of energy from 2009 to 2012 and now heads the U.S.-China Clean Energy Research Center at West Virginia University.
A Summit spokeswoman says the company is rushing to complete financing and begin construction. HECA didn't respond to requests for comment.
The lack of viable clean-coal plants means the Obama administration will have to rely even more on boosting renewables and natural gas as a source of electricity to achieve its goals of cutting power plant carbon dioxide emissions by 30 percent by 2030.
It also highlights why its 2010 cap-and-trade proposal for regulating emissions by power generators was so crucial.
Congress failed to pass a bill that would have provided an estimated $75 billion in incentives for coal plants using carbon-capture technology through 2030 and about $177 billion through 2050. Without it, the administration has less to offer the utilities to get them to invest in clean-coal technology.
Opening to Challenge EPA Rule
The struggles of FutureGen and other clean-coal projects create another problem for the White House's climate policy.
The regulations the EPA is developing lower the amount of allowed emissions for coal plants to the point that it's impossible to build one without using carbon capture.
In the absence of commercially viable carbon-capture technology, utilities may have an opening to challenge the new regulations in court, says Jeff Holmstead, a former senior EPA official under George W. Bush, who now works at Bracewell & Giuliani.
The EPA already has extended the time frame utilities would have for complying with new emissions standards. “I think there is a good chance they'll finalize a rule with a higher emission rate,” Holmstead says.
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Fly-By: What the Latest Aerial Study of Methane Emissions Tells Us
Feb 19, 2015 | Environmental Defense Fund
By Mark Brownstein
In the summer of 2013, researchers aboard a four-engine P-3 Orion aircraft – a variant of the plane used by the U.S. Navy to track submarines – flew over three of the nation’s biggest shale gas regions, taking measurements that would allow them to estimate the amount of methane leaking from the production fields below.
The team from University of Colorado’s Cooperative Institute for Research in Environmental Sciences (CIRES) and NOAA Earth System Research Laboratory published their findings this week in the Journal of Geophysical Research: Atmospheres, adding new depth to our understanding of methane leaks, but also underscoring important questions.
Comparing their readings to production figures for the region, they estimated a total leak rate of 0.18 to 2.8 percent, which is at the low end of the range of findings in other research. For some, this may be cause for celebration.
But don’t pop the champagne corks just yet.
The study is just one snapshot – data from one afternoon, on one day, in each of the three places.
The study, which looked at gas fields in Louisiana and Texas, Arkansas, and Pennsylvania, offers a one-day snapshot of what was happening on the ground, as measured from the air. A one-day survey can produce results with a significant range of uncertainty.
For example, another flyover study of Utah’s Uinta Basin, also led by researchers from NOAA and CIRES, showed leak rates ranging from 6.2 to 11.7 percent, and an additional flyover of the Denver-Julesburg Basin, led by NOAA, found leak rates in the range of 2.5 to 5.7 percent. This is just the case with the new study published today, which recorded methane leak rates from 0.18 to 0.41 percent in the Marcellus Shale to 1.0 to 2.8 percent in the Fayetteville.
More robust studies that cover longer time periods actually suggest methane emissions are often higher than previously estimated. EDF’s own studies – including two released last week looking at the transmission and storage and gathering and processing sectors of the oil and gas industry – have repeatedly shown that random leaks and malfunctions are a major source of emissions.
Because these events are random, a one-day overflight will not give a full picture of emissions coming from a basin over a day, a month, or a year. What is needed is regular and ongoing monitoring.
This is why major oil and gas producing states like Colorado and Wyoming are instituting ongoing leak detection and repair programs and why states like Pennsylvania can continue to move the ball forward and show leadership by enacting strong methane regulations. The federal government has also recognized the importance of these measures, with the White House announcing in January a goal of reducing methane emissions 40 to 45 percent by 2025. The rules EPA will propose this summer to achieve that goal will likely include efforts to enhance emissions measurement and leak repair.
Leading companies recognize the need for such programs, too, with many joining us in the Methane Detectors Challenge, a project to identify and deploy technology capable of providing continuous emissions monitoring at sites.
Methane has the potential to undermine the climate benefits natural gas provides over other fossil fuels. If natural gas is to truly provide a cleaner energy alternative to get us on a path toward a non-carbon future, it must be produced responsibly, with strong regulations that require leak detection and repair to prevent harmful methane emissions.
The CIRES study is just one in what is becoming a large body of scientific analysis of methane emissions and doesn’t tell the full story. Continuing research by EDF and others will help us understand the bigger picture of these emissions and provide policymakers and industry leaders with the information they need to help prevent them.
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All Toxic Gases From Coal Mine Blasting Must Be Managed, Federal Regulator Says
Feb 20, 2015 | BNA Daily Environment Report
By Rachel Leven
All toxic fumes released from “blasting” operations at coal mines would have to be managed under updated rules to be developed by an Interior Department agency, according to a notice to be published Feb. 20 in the Federal Register.
This is an unsolicited move on the part of the Office of Surface Mining Reclamation and Enforcement, which considered updating its “blasting” rules in response to an April petition by an environmental group.
That petition from WildEarth Guardians, which OSM has granted, only requested that the office examine rules related to nitrogen oxides emissions from coal mine operations that use explosives to expose hard-to-reach coal seams.
“We have concluded that the current silence in our regulations on toxic gases released during blasting is no longer acceptable and only perpetuates the disparities between the various practices of the state regulatory authorities,” the notice said, highlighting state regulators' concerns regarding authority to enforce in this area.
The office now will move to the rulemaking phase, where it is likely to find significant opposition from the mining industry that also opposed the WildEarth petition.
OSM intends to propose changes to certain definitions, training and testing requirements and specify that toxic gases such as carbon monoxide are a “blasting” danger that must be managed to protect public health and property, the notice said.
State mining regulators, the mining industry and WildEarth are waiting for the final rule to determine the firm scope and impact; however, some of the parties have questions, such as how enforceable will the proposal actually be.
Toxic gases that result from blasting such as nitrogen oxides and carbon monoxide have varying effects on public health and the environment.
Carbon monoxide can cause health effects ranging from fatigue to impaired brain function to death. Nitrogen oxides can help form ground-level ozone and fine particle pollution and lead to respiratory issues in people, according to the Environmental Protection Agency.
Upcoming Rule's Scope Unclear
The scope and impact of the upcoming rulemaking varies depending on who is asked.
Greg Conrad, executive director of the Interstate Mining Compact Commission, told Bloomberg BNA it will depend on how toxic gases are defined and identified to determine which states and mining operations are affected.
Depending on these factors, “this could really take on an entirely different and larger dimension both for state regulators and for the regulated industry,” he said.
Meanwhile, Jeremy Nichols, climate and energy program director for WildEarth Guardians, told Bloomberg BNA the upcoming proposal could affect companies operating large surface and strip mining operations across the nation from Appalachia to the Illinois and Power River basins.
Sulfur Dioxide Also Could Result From Blasting
In terms of toxic gases, there are others that can result from blasting at coal mines beyond nitrogen oxides and carbon monoxide, such as sulfur dioxide, Nichols said.
In certain concentrations and frequencies, exposures to sulfur dioxide can be fatal, according to the Mine Safety and Health Administration.
Despite praising the Office of Surface Mining for taking seriously its responsibility to protect the public, Nichols said the limited language on what the proposed rule would contain also didn't draw the line in the sand his group was looking for.
“There's nothing in here that says orange clouds are prohibited,” Nichols said, referring to the orange clouds produced by blasting that indicate nitrogen oxides' concentration levels are up to 300 times higher than national health standards.
No Orange Clouds Prohibition
By prohibiting orange clouds, the Office of Surface Mining would make a clear distinction between what end result is acceptable to protect the public and property and what end result isn't, Nichols said.
Instead, it appears the Office of Surface Mining will be providing requirements for training and testing that could prove more difficult to create, given that mining in different climates may require different actions to achieve the same result and may be more difficult to enforce, Nichols added.
“It would be like instead of having speed limits, giving out driving manuals. We're not going to tell you how hard to push the gas pedal because how could we enforce that? Just meet the speed limit,” Nichols said. “Rather than having a speed limit, we're coming up with a complicated list of steps that people should take, and that's going to make it difficult to enforce.”
Meshing Proposal With Air Act Requirements
For state mining regulators, Conrad told Bloomberg BNA that questions remain about how the upcoming proposal would mesh with applicable Clean Air Act requirements.
The actual scope as determined by OSM in the upcoming rulemaking also will affect his members' views, Conrad added.
“Until we see the specifics of the rule itself, it will be difficult to judge both its need and its value,” Conrad said.
Nancy Gravatt, a National Mining Association spokeswoman, said the notice isn't a proposed rule and therefore declined to comment but said the association is disappointed the petition was granted.
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Ill. Lawmakers Float Carbon-Pricing Bill to Satisfy EPA Rule
Feb 19, 2015 | E&E News PM
By Jean Chemnick
State lawmakers in Illinois introduced legislation today that would price carbon emissions as a means of complying with U.S. EPA's Clean Power Plan.
The bills sponsored by state Sen. Don Harmon (D) and state Rep. Elaine Nekritz (D) would increase Illinois' efficiency policies for homes and businesses by 50 percent, extend and expand its renewable energy standard, and create a market-based "cap and invest" mechanism that would direct funds toward various state expenditures.
The legislation would provide a basis for Illinois' state implementation plan under the EPA draft rule for existing power plants, which demands that the Prairie State cut its power-sector carbon dioxide emissions by 33 percent by 2030.
"As strong as the clean energy economy is today, with 100,000 clean energy jobs throughout the state, Illinois is at a tipping point," Harmon said in a statement.
Nekritz said the bills would keep Illinois' renewable energy sector competitive compared with those of nearby states that threaten to outstrip its production.
The Harmon-Nekritz legislation would sell allowances by auction and direct the bulk of the revenue -- 65 percent -- to energy efficiency and renewable energy expenditures. Ten percent of the revenue would go to communities affected by power plant pollution, while 5 percent each would go to low-income heating assistance, job transition funding and "innovative strategies."
No money is currently assigned to help prop up Illinois-based Exelon Corp.'s fleet of six nuclear reactors in the state, but the company is putting the finishing touches on a bill that would do so (EnergyWire, Feb. 17).
Exelon has offered its fleet as a source of reliable, carbon-free generation, but it is unclear whether the nuclear giant might be willing to support legislation like Harmon's.
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$1.1 Billion Available in Tax Credits for Clean Coal
Feb 20, 2015 | BNA Daily Environment Report
The IRS has about $1.1 billion in tax credits available for reallocation in the second round of the tax code Section 48A Phase III program, which helps offset the costs of investments in clean coal projects. In Notice 2015-14, the Internal Revenue Service said Round 2 of the reallocations will begin immediately and applications must be submitted to both the Department of Energy and the IRS by April 1. The agency said Feb. 18 that about $1.1 billion in credits are available due to forfeiture of previously allocated Phase I and Phase II credits and unallocated Phase II credits. The credit is worth 30 percent of the cost of qualified investments in advanced coal-based power generation technologies. Section 48A(f) specifies how technologies can qualify for this special tax treatment. The IRS launched Round 1 of the reallocations in the Phase III project via Notice 2012-51, with $658.5 million in credits from Phase I of the project . Notice 2015-14 is effective Feb. 8. It is scheduled for publication in Internal Revenue Bulletin 2015-10, dated March 9.
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PHMSA Publishes Lithium Battery Rule Extension
Feb 20, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish a notice in the Federal Register Feb. 20 that extends until Aug. 7 the compliance deadline for portions of a lithium battery and cell transport rule. PHMSA announced the six-month extension Feb. 13 in response to calls from retailers and battery manufacturers (33 DEN A-4, 2/19/15). The extension applies to all modes of transportation except air. The rule would, in part, harmonize the Hazardous Materials Regulations with relevant international standards and would alter some lithium battery and cell transport requirements, such as specific shipping description standards. The Federal Register notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-03500.pdf.
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Risks Warrant Oil-by-Rail Halt, Environmentalists Say
Feb 20, 2015 | BNA Daily Environment Report
Millions of people, thousands of miles of water bodies and dozens of critical habitats for threatened or endangered species are within the Transportation Department-recommended evacuation zone of oil-by-rail routes, according to a Center for Biological Diversity report released Feb. 19. U.S. regulators should ban oil-by-rail transport using DOT-111 tank cars and issue a moratorium on transport of crude oil overall to protect these environmental and public health valuables, the center's report, “Runaway Risks: Oil Trains and the Government's Failure to Protect People, Wildlife and the Environment,” said. U.S. regulators also should limit the number and weight of cars on an oil train as well as its speed, the report said. Several high-profile derailments within the last few years have resulted in fires, environmental and property damage and, in one case, 47 human deaths. The center compiled oil-by-rail routes from a March 2014 Trains magazine article, “All Oiled Up.” The center's report is available at http://www.biologicaldiversity.org/campaigns/oil_trains/pdfs/runaway_risks_web.pdf.
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Fires Still Burning at West Virginia Oil Train Disaster Site
Feb 19, 2015 | The Hill - E2 Wire
By Timothy Cama
Some fires continued to burn Thursday afternoon, three days after a train carrying crude oil derailed and exploded in rural West Virginia.
Suzanne Emmerling, a spokeswoman for the U.S. Department of Transportation, said that the fires are hampering investigators’ ability to access what they need in order to determine the disaster's cause.
The Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration, both units of the Transportation Department, are leading the investigation, working with other federal and state agencies and CSX Corp., which operated the train.
In a Thursday afternoon update about the investigation, Emmerling said the train was traveling at 33 miles per hour at the time of the derailment, well under the limit of 50 miles per hour.
Investigators are gathering and analyzing video footage and data on track and mechanical inspections, Emmerling said.
The National Transportation Safety Board has decided against leading an investigation. But the agency has sent employees to the site to gather information that might be useful for assisting other agencies, it said in a statement.
Meanwhile, the Coast Guard and other federal and state agencies involved in the disaster have created an official unified command to handle the response.
“The top priorities for response personnel remain the safety of the community and responders, and mitigating the impact to the environment,” Coast Guard Capt. Lee Boone, the on-site coordinator for the response, said in a statement.
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Oil and Water Don’t Mix -- Add Trains and It’s a Disaster Waiting to Happen
Feb 19, 2015 | Environmental Working Group
By Jose Aguayo & Renée Sharp
When I heard earlier this week that a train carrying crude oil had derailed and exploded in flames near the West Virginia town of Mount Carbon, I had a sickening feeling of déjà vu. It was just April of last year that a similar accident unfolded in Lynchburg, Va. Just like last year, the train operator was CSX. And just like last year, a river was contaminated. And just like last year, the train was carrying crude oil from the intensively fracked Bakken formation in North Dakota.
I asked EWG analyst Jose Aquayo to look into how common these train derailments are. What he found shocked me. During a 10-month period from March 2013 to January 2014, 10 major crude oil spills occurred due to train accidents. In the last week alone, two major oil railcar disasters made headlines – the one in West Virginia and a similar accident in Ontario, Canada. An NBC News investigation earlier this year found that there were more crude oil spills from accidents involving American trains in 2014 than in the previous 39 years since the federal government began keeping records.
With the fracking boom sweeping the nation, this trend is unfortunately all too likely to continue. The amount of oil being transported by rail has increased from 9,500 carloads in 2008 to more than 400,000 in 2013, according to the Association of American Railroads. More oil equals more trains – and more trains equal more accidents.
When you add the mounting toll of train accidents to the toxic chemicals used and produced by the oil and gas industry, the massive amounts of water used in some fracking operations and the specter of global climate change, it’s clear that America’s water supplies will never be truly safe until we move away from fossil fuels and toward clean-energy solutions.
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Feds: Speed Doesn’t Appear To Be Factor in Oil Train Crash
Feb 19, 2015 | AP (in the Washington Post)
By Joan Lowy & Matthew Brown
Speed doesn’t appear to have been a factor in an oil-train derailment in southern West Virginia, a federal transportation official said Thursday.
The CSX train was going 33 mph at the time of Monday’s crash in the town of Mount Carbon. The speed limit was 50 mph, said Federal Railroad Administration acting administrator Sarah Feinberg.
“We can see from event recorders that the train was traveling below speed limit and starting to accelerate at time of derailment,” Feinberg said.
The train had gone through the town of Montgomery minutes earlier where the speed limit was 30 mph, she said.
The derailment shot fireballs into the sky, destroyed a house, leaked oil into a Kanawha River tributary and forced nearby water treatment plants to temporarily shut down. The owner of the destroyed home was treated for smoke inhalation. No other injuries were reported.
The cause remains unknown. Investigators had reviewed video from cameras on the front and rear of the locomotives as well as a train coming from the opposite direction. But the footage showed nothing significant.
“You can clearly see and hear where the derailment takes place,” Feinberg said.
Twenty-seven of the 107 tank cars derailed, and 19 of those were involved in the fires, which continued smoldering Thursday.
The small fires have prevented investigators from gaining full access to the crash scene. Feinberg said it might be necessary to use a dry chemical to douse the fires, out of worry that using water or spray foam would wash oil into the river.
Robert C. Lauby, the railroad agency’s chief safety officer, said oil must first be pumped out of damaged tank cars before they can be removed — a process slowed by weather-frozen hoses and pumps. The removal of the damaged cars is likely to start Friday, he said.
No rail cars entered the river and no oil has been detected in river water samples, according to a joint statement from several agencies that have responded to the derailment. Water treatment systems were brought back online Tuesday, and a boil-water advisory for area residents expired Thursday.
A road leading to the derailment site remained closed, preventing about 225 people from returning to 100 homes, said Coast Guard Lt. Scott McBride, speaking on behalf of the agencies.
“We’re working on a plan to possibly reopen that road because residents are getting itchy to get back to their homes,” he said.
Amtrak, whose Chicago-to-New York Cardinal route travels along the same tracks where the derailment occurred, has been told by CSX that the tracks won’t reopen until early next week, said Amtrak spokesman Marc Magliari in Chicago.
The CSX train was bound for an oil-shipping depot in Yorktown, Virginia, along the same route where three tank cars plunged into the James River in Lynchburg, Virginia, last year, prompting an evacuation.
“We at the Department of Transportation and in the administration understand the gravity of this issue,” U.S. Transportation Secretary Anthony Foxx told The Associated Press on Thursday.
That’s why the department chose to craft a rule that not only deals with the question of tank car design, but also with operational issues that could prevent accidents, such as lower speeds and better braking and emergency response after an accident occurs, he said.
“It’s an approach that pushes the country forward on all fronts,” Foxx said.
The department finished drafting final rules and sent them to the White House budget office earlier this month. The budget office is supposed to complete reviews of regulations within 120 days, but often takes many months longer. Federal officials are prohibited from publicly discussing the details of the proposals until the rules are made final.
Some of these measures would cost billions more and have been strongly opposed by the oil and rail industries.
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