ACC AM Mar 10

Industry and Association News

1. (ACC Mentioned) ACC Report: Chemical Shipments Down; Jobs, Construction Increase

   Mar 9, 2015 | Chem.Info

   By Andy Szal
   
   
   Economic indicators tracked by a chemical industry group had a mixed week to start the month of March, with employment and construction gains and declines in chemical shipments. The American Chemistry Council's weekly economic trends report showed shipments of chemicals down 1.3 percent in January compared to the previous...

Chemical Management News

2. (ACC Mentioned) A Sea of Troubles: Stopping Ocean Pollution at the Source

   Mar 10, 2015 | Budapest Business Journal

   By Marcus Eriksen
   
   
   If you could stand on the ocean floor, look up, and see only the plastic pollution suspended in our oceans, you would see massive clouds of plastic particles, a mist of dust-like microplastic fragments slowly settling to the seafloor. This “plastic smog” is taking over our oceans. Today, there are more than five trillion pieces of plastic...
3. (ACC Mentioned) Lautenberg Legacy to Play Key Role in Top Industry Reform Push

   Mar 10, 2015 | E&E Daily News

   By Sam Pearson
   
   
   Industry groups once derided former Sen. Frank Lautenberg's (D-N.J.) perennial proposals to tighten the nation's regulation of toxic chemicals, but now they are poised to invoke the late senator's legacy as they push for their preferred reform plan this month with the introduction of a reform bill expected in the next day or two...
4. (ACC Mentioned) EPA, ACC Settle Antimicrobial Data Requirement Suit

   Mar 9, 2015 | InsideEPA

   EPA and the chemical industry trade association American Chemistry Council (ACC) have settled the industry's lawsuit over the the agency's 2013 rule on new data requirements for registering antimicrobial pesticides for use. ACC sued EPA in July 2013 over the rule, which imposed first-time data requirements. The rule revised some existing...
5. Udall Set to Offer TSCA Reform Legislation With Industry Fees, Limited State Preemption

   Mar 10, 2015 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   Federal preemption of state chemical regulations would be narrowed under a bill to modernize the Toxic Substances Control Act that Sen. Tom Udall (D-N.M.) will introduce March 11, sources who have tracked the TSCA reform effort for years told Bloomberg BNA.
6. States Lead the Way

   Mar 9, 2015 | Environmental Working Group

   By Mary Ellen Kustin
   
   
   States are leading the way when it comes to protecting people from dangerous chemicals. And it’s a good thing, because the federal Toxic Substances Control Act, on the books since President Ford signed it into law, is broken. This statute is so dysfunctional that only five of the tens of thousands of chemicals in commerce have been...
7. Worker Exposures to Cobalt, Increased Uses Backdrop as NTP Reviews Its Carcinogenicity

   Mar 10, 2015 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   The National Toxicology Program has released its protocol for evaluating the carcinogenicity of cobalt and certain cobalt compounds. The protocol, posted online March 9, described the program's approach to surveying scientific literature to identify toxicity, worker exposure and other studies of cobalt. The protocol also described criteria ...
8. Studies Estimate EDC Exposure in EU Costs €157bn

   Mar 9, 2015 | Chemical Watch

   By Carmen Paun
   
   
   Exposure to endocrine disrupting chemicals (EDCs) in the EU has an annual price tag of at least €157bn, according to the US-based Endocrine Society, a professional, international medical organisation in the field of endocrinology and metabolism. The figure is the conclusion of a series of studies published by the society last week...

Chemical Security News

9. Coast Guard Reports Spill in Houston Ship Channel

   Mar 9, 2015 | The Wall Street Journal

   By Alison Sider
   
   
   A hazardous and highly polluting chemical spilled into the Houston Ship Channel on Monday afternoon when two vessels collided in foggy conditions, the U.S. Coast Guard said. One of the vessels that crashed was a chemical tanker carrying 216,000 barrels of methyl tertiary-butyl ether, or MTBE, the Coast Guard said.
10. Houston Ship Channel Partly Closed After Crash Spills MTBE

    Mar 10, 2015 | Bloomberg

    By Harry Weber
    
    
    A Venezuela-bound tanker spilled an unknown amount of gasoline additive MTBE into the Houston Ship Channel after a crash with another vessel, shutting down a portion of the waterway and one container terminal. The Carla Maersk, a 45,000-deadweight ton tanker, was heading out of the ship channel and had set course for Amuay ...

Energy and Environment News

11. (ACC Mentioned) In Novel ESPS Lawsuit, Final Briefs Keep Focus On Procedural Questions

    Mar 9, 2015 | InsideEPA

    By Anthony Lacey
    
    
    EPA and coal company Murray Energy have filed final briefs in the company's novel litigation seeking to block the agency from promulgating a final rule regulating greenhouse gases (GHGs) at existing power plants, with the litigants focused largely on a series of threshold procedural questions that will determine whether judges...
12. (ACC Mentioned) Study: US Chemical Exports Linked to Shale Gas May Double By 2030

    Mar 9, 2015 | Hydrocarbon Processing

    America’s shale gas revolution could lead to dramatic growth in US chemical exports over the next 15 years, according to a new report from Nexant and sponsored by the American Chemistry Council (ACC). Gross exports of chemical products, including plastics, linked to plentiful and affordable natural gas are projected to double...
13. BOEM Defends Plans for Seismic Surveys For Oil, Gas Exploration in Atlantic Offshore

    Mar 10, 2015 | BNA Daily Environment Report

    By Alan Kovski
    
    
    Critics continue to misrepresent the risks to marine life from planned seismic surveys off the Atlantic Coast by oil and gas companies, a federal environmental official said March 9. The statement from William Brown, chief environmental officer of the Bureau of Ocean Energy Management, came as opponents of the proposed oil and gas exploration...
14. Revisions to Draft Rules for Oil, Gas Wells In Pennsylvania Include Stream Protections

    Mar 10, 2015 | BNA Daily Environment Report

    By Leslie A. Pappas
    
    
    The protection of streams and wetlands within 100 feet of well pads and how to address abandoned wells are among the changes in a revised draft of new rules governing surface activities at oil and gas well sites, Pennsylvania's Department of Environmental Protection (DEP) announced March 9.
15. U.S. Court Upholds Interior Dept's Offshore Drilling Plan

    Mar 9, 2015 | Reuters

    By Ayesha Rascoe
    
    
    An appellate court has rejected a challenge to the current federal leasing plan for offshore drilling, ruling that the government properly weighed the costs and benefits of allowing oil and gas development. The Center for Sustainable Economy had filed a lawsuit against the Interior Department's offshore leasing program...
16. EPA Claim on Power Plant Emissions Data Questioned by Environmental Organizations

    Mar 10, 2015 | BNA Daily Environment Report

    By Patrick Ambrosio
    
    
    The Environmental Protection Agency's justification for establishing an alternative method for compliance with mercury and air toxics standards during power plant startup and shutdown conflicts with the sulfur dioxide monitoring requirements of the agency's acid rain program, according to an environmental organization that...
17. Supreme Court Allows Extended Arguments On EPA's Power Plant Mercury Standards

    Mar 10, 2015 | BNA Daily Environment Report

    By Patrick Ambrosio
    
    
    The U.S. Supreme Court will hear extended oral arguments on whether the Environmental Protection Agency was required to consider cost when the agency determined it was appropriate to regulate mercury and other hazardous air pollutants from power plants, a finding that ultimately led to the promulgation of the 2012 mercury...
18. Supreme Court Expands Time For Arguments on Toxics Standards

    Mar 9, 2015 | E&E News PM

    By Jeremy P. Jacobs
    
    
    The Supreme Court decided today to expand the time allotted for oral arguments in the challenge to U.S. EPA's Mercury and Air Toxics Standards. In a short order, the court granted a motion to provide 90 minutes for arguments in the consolidated cases brought by several states and industry groups, up from the usual hour.
19. EPA Rejects Claim Of Extended Compliance Period Weakening CISWI Rule

    Mar 9, 2015 | InsideEPA

    By Stuart Parker
    
    
    EPA is rejecting environmentalists' claim that its decision to allow some facilities to demonstrate compliance with its commercial and industrial solid waste incinerator (CISWI) air rule over a 30-day period in effect leads to weaker emissions controls, fighting advocates' bid for a court to force use of short three-hour compliance testing.
20. Greens Face Dilemma Over Mikulski Seat

    Mar 10, 2015 | E&E Daily News

    By Josh Kurtz
    
    
    As Democrats come out of the woodwork and offer themselves as potential replacements for retiring Sen. Barbara Mikulski (D-Md.), environmental groups are facing a dilemma: What do they do when so many of their friends want the same job? Already, Rep. Chris Van Hollen (D), a longtime hero to environmentalists, has announced his intention...
21. Los Angeles Air District Tightens Limits On Lead Emissions From Battery Recycling

    Mar 10, 2015 | BNA Daily Environment Report

    By Carolyn Whetzel
    
    
    Southern California air quality officials have adopted stricter lead emissions limits for the two battery recycling plants operating in Los Angeles County. Approved by the South Coast Air Quality Management District governing board at a March 6 public hearing in Long Beach, the new standards mark the latest effort to reduce exposure to lead...
22. Agency Shakes Up Coal Research Staff

    Mar 9, 2015 | E&E News PM

    By Manuel Quiñones
    
    
    The Department of Energy's Office of Fossil Energy has tapped Duke Energy Corp. executive David Mohler to become the administration's new point person for coal research, the agency said today. Mohler, most recently Duke senior vice president and chief technology officer, will officially become deputy assistant secretary for clean coal...
23. Democrat Offers Bills Addressing Climate Change Risks

    Mar 10, 2015 | BNA Daily Environment Report

    Bills reintroduced in the House by Rep. Lois Capps (D-Calif.) would assist coastal communities, water utilities and public heath officials in dealing with droughts, floods, and risks posed by changes in climate. The Coastal State Climate Change Planning Act (H.R. 1276) would help coastal states plan and implement climate change adaptation projects...
24. Report: Florida Officials Told Not to Use Terms ‘Climate Change,’ ‘Global Warming’

    Mar 10, 2015 | BNA Daily Environment Report

    By David Knowles
    
    
    Florida's government may have figured out a way to beat climate change: Ignore it. A report by the Florida Center for Investigative Reporting published March 8 details the claims by employees of the Florida Department of Environmental Protection, who say that they were ordered to refrain from using the terms ...
25. Florida’s Gov. Rick Scott Denies Muzzling Global Warming Talk

    Mar 9, 2015 | Politico

    By Marc Caputo
    
    
    Florida Gov. Rick Scott on Monday denied an investigative report that his environmental protection agency muzzled workers from talking about global warming – but he also made clear that he didn’t want to talk about the issue at all. The controversy erupted Sunday after the nonprofit Florida Center for Investigative Reporting published an account...

Transportation News

26. Fiery Rail Spills Puts Safety Focus on Cutting Oil’s Volatility

    Mar 9, 2015 | Bloomberg

    By Jim Snyder
    
    
    A series of rail accidents involving oil tank cars that exceed federal safety standards yet still burst into flames after derailing is shifting the focus from the container to the crude -- and whether it’s too explosive to be carried by train. A wreck over the weekend in Canada brought the total to four in less than a month in the U.S. and Canada.

Full Text of Stories Below

Industry and Association News

1. (ACC Mentioned) ACC Report: Chemical Shipments Down; Jobs, Construction Increase

   Mar 9, 2015 | Chem.Info

   By Andy Szal

   Economic indicators tracked by a chemical industry group had a mixed week to start the month of March, with employment and construction gains and declines in chemical shipments.
   
   The American Chemistry Council's weekly economic trends report showed shipments of chemicals down 1.3 percent in January compared to the previous month, despite a 1.3 percent gain in the pharmaceutical sector.
   
   Without pharmaceuticals factored in, chemical shipments decreased 2.1 percent compared to December and 3.3 percent compared to January 2014. Inventories of both chemicals and pharmaceuticals also fell in January.
   
   According to more recent data, however, railcar loads of chemical products increased for the final week in February and numbers for the year to date increased 3 percent compared to the first two months of 2014. The ACC considers railcars the best indicator of "real-time" economic activity.
   
   In addition, the Institute for Supply Management reported the chemical industry expanded last month, with increased employment and hours worked. Federal statistics showed the chemical industry had 14,300 more payroll jobs in February than the same month in 2014.
   
   Spending on chemical manufacturing projects and construction related to chemical production also increased sharply compared to the first months of 2014. The nearly 60 percent jump in manufacturing projects, the ACC said, reflected "the massive investment in new chemical manufacturing capacity motivated by the U.S. shale gas advantage."

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Chemical Management News

2. (ACC Mentioned) A Sea of Troubles: Stopping Ocean Pollution at the Source

   Mar 10, 2015 | Budapest Business Journal

   By Marcus Eriksen

   If you could stand on the ocean floor, look up, and see only the plastic pollution suspended in our oceans, you would see massive clouds of plastic particles, a mist of dust-like microplastic fragments slowly settling to the seafloor.

   This “plastic smog” is taking over our oceans. Today, there are more than five trillion pieces of plastic in the world’s oceans, together weighing more than 250,000 tons.

   Plastic in the oceans is always moving, sometimes violently, and becomes brittle under the ultraviolet rays of the sun. It is constantly being attacked by curious fish, seabirds, and marine mammals and reptiles, colonized by millions of microbes, and ingested by zooplankton and other filter feeders, like barnacles and jellyfish. As a result, plastic in the oceans is rapidly shredded into microplastics, which quickly disseminate.

   To make matters worse, microplastics act as tiny sponges, absorbing chemical pollutants in the ocean, of which there are many. Chemical pollutants like pesticides flow downhill to the ocean and stick to plastic, leaving most marine scientists in agreement that microplastics in the ocean are hazardous waste.

   Microplastics that are not ingested by marine life are typically driven below the ocean surface, to be captured by deep ocean currents for redistribution around the world. We are now finding microplastics in ice cores, remote shores, and on the ocean floor. Where there is seawater, there is plastic.

   When faced with air pollution in the 1970s, people had all sorts of outlandish ideas, like installing giant vacuum cleaners on top of city buildings. Others looked up and said, “That doesn’t make sense. Just control emissions at the source.” Laws to control emissions from cars and power plants have since proven to be the solution.

   Scientists like myself who study ocean pollution understand that plastic shreds to microplastic rapidly, is globally distributed, and settles to the seafloor the same way air pollution settles to the ground. With this knowledge, the public can accurately say, “Ocean cleanup is not where solutions start. Just control emissions at the source.” All solutions to this problem must start on land.

   But controlling emissions is where we find conflict. Plastics Europe and the American Chemistry Council, the trade groups that represent plastic producers and manufactures worldwide, uniformly reject solutions that threaten plastic production. They focus solely on post-consumer waste-management solutions, including more landfills, incinerators, recycling centers, and trash bins, and they expect cities to pay for these solutions with taxpayer funds. They aggressively oppose product phase-outs and bottle bills, regardless of how successful these strategies are at eliminating waste.

   Given the latest research on plastic pollution in our oceans, we must agree on a few principles.

   First, microplastics should be labeled as hazardous waste. Overwhelming scientific study shows concentrations of toxins on plastic are at very high levels, and these levels decrease when marine organisms try to digest microplastic pollution.

   Second, ocean cleanup is an inefficient and unnecessary strategy. The plastic that is in the oceans now will rapidly shred and settle to the seafloor or wash ashore, making cleanup at sea the least efficient means of recovery, and the least effective means of controlling emissions of waste to the ocean. Industry-funded beach and ocean cleanups are largely a distraction from efforts to stop pollution at the source.

   Finally, producers must take responsibility for the lifecycle of plastics. Industry must either monetize incentives to recover waste plastics or innovate environmentally friendly product and packaging alternatives. Simply put, if you can’t get your product back, make it harmless. Taxpayers can no longer bear the full responsibility for managing the threats of plastic waste.

   Knowing that trillions of plastic particles, which scientists deem hazardous waste, are cycling through entire marine ecosystems underscores the importance that community leaders eliminate single-use, throw-away plastic products and packaging from society. It will take leadership to design better products and packaging to replace the status quo. If we do not end this problem on land, we can surely anticipate greater contamination of all we gather from the sea.

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3. (ACC Mentioned) Lautenberg Legacy to Play Key Role in Top Industry Reform Push

   Mar 10, 2015 | E&E Daily News

   By Sam Pearson

   Industry groups once derided former Sen. Frank Lautenberg's (D-N.J.) perennial proposals to tighten the nation's regulation of toxic chemicals, but now they are poised to invoke the late senator's legacy as they push for their preferred reform plan this month with the introduction of a reform bill expected in the next day or two, just ahead of a Senate hearing expected next week.

   The chemical industry and groups that support a plan taking shape to update the Toxic Substances Control Act of 1976 have spent months downplaying the differences that remain between an industry-backed bill and language preferred by Environment and Public Works Committee ranking member Barbara Boxer (D-Calif.) and many environmental groups. Though Lautenberg was regarded as a liberal legislator, the bill released nearly two years ago that stemmed from talks between him and Sen. David Vitter (R-La.) is still looking for the support of most environmental groups.

   Meanwhile, although Sen. Tom Udall (D-N.M.) has taken Lautenberg's place at the negotiating table and has secured changes from the original "Chemical Safety Improvement Act" to fix what critics said were loopholes that could lead to lax regulation and bar states from taking action on their own, the language hasn't won the support of most of the public health community and key Democrats.

   But the plan to invoke Lautenberg's legacy -- including by calling his widow, Bonnie Englebardt Lautenberg, to deliver a statement before the Environment and Public Works Committee in favor of the proposal and naming the bill the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- threatens to inflame divisions between Boxer and other Democrats.

   A committee aide said the bill was being reviewed, but "it is already clear that many very serious concerns remain," including restrictions the bill would place on future state regulations and language that would not ensure immediate action on the most harmful substances, like asbestos.

   The bill "eviscerates state law and at the same time would not make a dent even in the thousand chemicals we already know present a serious threat," the committee aide said.

   Despite the effort to reach a bipartisan consensus, the bill is set to be introduced without the support of most environmental and public health groups, many of which released a letter yesterday opposing the proposal in its current form.

   The bill "continues to have serious flaws that undermine protection of public health," said the letter, adding, "and we continue to be ready to work with senators to get those changes." The letter was signed by representatives of Safer Chemicals, Healthy Families; the Natural Resources Defense Council; the United Steelworkers; the League of Conservation Voters; and other groups.

   The most significant problems include restricting state regulations for chemicals designated "high priority" for which EPA action is planned but not completed, barring co-enforcement of federal regulations by states and allowing EPA to designate chemicals as "low priority" without testing them. The proposed legislation also makes it more difficult for EPA to restrict the use of a chemical found to be unsafe from specific products by creating additional administrative steps that could prolong the process, the groups said.

   Despite the criticism, the chemical industry has defended the result of the negotiations and said the proposal is reasonable. And Michael Walls, the American Chemistry Council's vice president of regulatory and technical affairs, told an industry gathering last week that lawmakers were "on the cusp of bringing our country's nearly 40-year-old chemicals management law into the 21st century" (E&E Daily, March 4). The group has also expressed frustration with Boxer's tactics in the past.

   "A lot of people are playing politics with this issue, and a lot of people are not looking to compromise or get something done," a Senate aide said. "The serious folks are recognizing that a lot of work is being done, and even folks who aren't supportive in the end, I think, will be much more supportive of the process." 'A tough nut'

   Updating the nearly 40-year-old TSCA law was a top priority for Lautenberg, who pushed hard to see it through, even at the end of his life, said Ben Dunham, who was Lautenberg's legislative director at the time and is now a director at McKenna Long & Aldridge.

   Lautenberg and Vitter's partnership in the Senate was highly unusual. For years, Lautenberg had introduced different versions of the bill that were more restrictive and were opposed by the industry and Republicans. At hearings held in 2009 and 2010 when Democrats controlled the Senate, some GOP senators asserted that EPA officials weren't using existing authorities under TSCA, arguing that they didn't need new regulatory tools.

   Lautenberg took on other public health fights with the tobacco and alcoholic beverages industries, the National Rifle Association and big chemical companies and won significant victories, pushing for laws to disclose toxic chemical releases, ban smoking on airplanes, ban people convicted of domestic violence offenses from owning guns and crack down on drunk driving. His fights amassed him a record of voting liberal 94 percent of the time, according to Americans for Democratic Action.

   To fight the smoking ban, airlines and cigarette companies worked together to mobilize supporters, such as by leaving cards on airplane seat backs urging opposition to the changes. Some lawmakers said Lautenberg's push was too aggressive, preferring instead to back research on whether it was possible to modify aircraft to better ventilate the smoke. When the measure was attached as an amendment to a transportation appropriations bill in 1989, Lautenberg said the public health savings outweighed whatever economic harm it could cause tobacco farmers.

   "Grow soybeans or something else," Lautenberg said, according to the University of California, San Francisco's library of tobacco records. In another interview, he lamented that the industry "want[ed] to go to the mat on every issue."

   When Congress approved the new drinking law restrictions, some states held out for years from adjusting drinking ages, even though the law Lautenberg pushed for penalized them by taking their federal highway funding.

   "He was a tough nut, let's put it that way," said Brigid Harrison, a political science professor at Montclair State University. "When you think of him, certainly he was able to build coalitions in Congress, but he was not someone that was known as the great compromiser. Coming from a state like New Jersey, he was virtually assured re-election for most years, and he was a progressive legislator, so it wasn't as if he were coming from a swing state where he needed to compromise his beliefs and his policies."

   But it wasn't a winning approach when it came to tightening the system for managing chemicals, Dunham said.

   In 2009, Lautenberg asked then-EPA Administrator Lisa Jackson at a Senate committee hearing what should be done about persistent bioaccumulative toxins, or PBTs. Lautenberg also asked if "there are non-PBT chemicals -- substances like asbestos, formaldehyde or [hexavalent chromium] -- for which we know enough about hazard and exposure so that EPA should move to risk management without having to first conduct additional risk assessment," though he ultimately dropped those provisions from the "Chemical Safety Improvement Act" -- a sticking point for Democrats like Boxer. 'We're going to have to compromise'

   Though the "Safe Chemicals Act" cleared the Environment and Public Works Committee in 2012 with Democrats in control, Lautenberg gave up trying to seek a Senate floor vote when he realized the bill was set to lose big, Dunham said.

   "It was at that point that we realized that we're going to have to compromise," Dunham said. "[Lautenberg] said to us at that point, 'We're going to have to figure out a way to get this done, and we're going to have to do it with Republicans.'"

   The progress made since then has shown that Lautenberg "would be proud of where we are," Dunham said.

   Today, chemical industry groups invoke Lautenberg's support as a sign that updating TSCA would benefit the nation, not just their companies. But Lautenberg and the chemical industry had their disagreements. Like Lautenberg's past opponents, the industry didn't take lightly to the "Safe Chemicals Act," which would establish the kind of strict safety standards favored by Democrats like Boxer. Cal Dooley, the American Chemistry Council president, called the "Safe Chemicals Act" "extreme" (E&E Daily, June 19, 2012).

   "It's time to break away from the chemical industry lobbyists and listen to concerned parents, pediatricians and nurses who are demanding change," Lautenberg said upon introducing the bill in April 2013, for what would be the final time.

   The industry's enthusiasm hasn't extended to other Launtenberg accomplishments. Efforts to strengthen Lautenberg's other chemical safety milestones -- like adding new chemicals to the Toxics Release Inventory, reinstating the Superfund cleanup tax and putting new security requirements in place at chemical facilities -- have all stalled for decades amid opposition from the industry.

   The pending Senate bill wouldn't even be the only one named for Lautenberg this session. Rep. Sheila Jackson Lee (D-Texas) beat Udall and Vitter to it with H.R. 54, the "Frank Lautenberg Memorial Secure Chemical Facilities Act," to require chemical facilities to use inherently safer technologies, a past Lautenberg proposal opposed by the industry that is not expected to advance this year.

   The EPW Committee hearing -- expected for March 18 -- could provide an opportunity for Englebardt Lautenberg to weigh in, after some reports said she was rebuffed in 2013 by Senate Democrats.

   The late senator's death in 2013 created friction between her and some Senate Democrats, according to media reports, which said Englebardt Lautenberg had lobbied senators to take action on her late husband's chemical bill. Boxer has previously told reporters her relationship with Lautenberg's widow was a private matter, CQ Roll Call reported in 2013. Englebardt Lautenberg married the senator in 2004, when he was 81.

   Lawmakers named the bill after consulting with Englebardt Lautenberg, spokeswomen for Udall and Inhofe said. Committee staff say she wasn't asked to appear at the opening push for the bill but wants to push for what was Lautenberg's last political goal.

   "Sen. Lautenberg long championed this issue and recognized that protecting the health and safety of American families and our environment is a priority shared by both parties," Inhofe said in a statement. "He moved past the partisanship that too frequently consumes the Senate and Congress as a whole when he put aside his previous TSCA reform legislation and introduced the bipartisan legislation that was not only the framework for this current bill, but has been since strengthened through Senator Udall's work with Senator Vitter."

   The path to 60 votes

   It's not clear which additional Democrats will support the Udall-Vitter bill, which will need at least six Democrats to break a filibuster in the chamber.

   Sens. Kirsten Gillibrand and Charles Schumer of New York, Robert Menendez of New Jersey, Dick Durbin of Illinois and Udall of New Mexico were the only holdover Democrats who co-sponsored the "Safe Chemicals Act" and stayed on for the "Chemical Safety Improvement Act."

   A spokesman for Durbin said the senator had not seen the new legislative language. Representatives for Gillibrand, Schumer and Menendez didn't respond to requests for comment.

   Udall and proponents of the bill are expected to push heavily for filibuster-proof support.

   "For the first time, we have a bill that can break the logjam and pass," Udall said in a statement. "And not only will our bill significantly improve existing law -- but it is the best opportunity we are likely to ever have for another 40 years. We are constantly working to improve it."

   It's an argument some environmental groups understand.

   "Given this Congress, I don't think we're going to be moving anything for quite a while" if the bill fails, said Jeff Tittel, director of the Sierra Club's New Jersey chapter.

   Others raised the prospect that chemical management legislation could go the way of failed climate change bills if lawmakers prove unable to act. If lawmakers do nothing, "we may be stuck with this bad law for another decade or two," said Richard Denison, a senior scientist at the Environmental Defense Fund.

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4. (ACC Mentioned) EPA, ACC Settle Antimicrobial Data Requirement Suit

   Mar 9, 2015 | InsideEPA

   EPA and the chemical industry trade association American Chemistry Council (ACC) have settled the industry's lawsuit over the the agency's 2013 rule on new data requirements for registering antimicrobial pesticides for use.

   ACC sued EPA in July 2013 over the rule, which imposed first-time data requirements. The rule revised some existing requirements for data submissions required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for registrants of antimicrobial pesticides, including ballast water treatments, antifoulants and wood preservatives.

   In the settlement, which EPA announced March 9, the agency agrees to within four months “post a proposed guidance document called the Antimicrobial Pesticide Use Size Index ("USI") on the EPA website and take comment on the proposed USI for thirty days.”

   In an email announcing the settlement, EPA explains that the USI “will include a compilation of existing antimicrobial pesticide use sites and identify how each use site fits within the 12 use patterns established in the regulation. This guidance document will help prospective registrants by making it easier for them to identify which data are necessary to register their product(s).”

   The settlement includes additional deadlines, wherein EPA is required within two and half years to “propose a correction to the Final Rule that will make the language of the Final Rule as it pertains to the 200 [part per billion (ppb)] level established in 40 C.F.R. § 158.2230(d) consistent with the U.S. Food and Drug Administration's use of that same level by making clear that the 200 ppb level established in the Final Rule is based on total estimated daily dietary intake, and is not based on the amount of residue present on only a single commodity.”

   And, within 60 days of the final agreement, the settlement requires EPA to “issue an interim guidance document explaining EPA's interpretation of the 200 ppb level established in the Final Rule.”

   ACC petitioned for appeals court review of the rule days before it was scheduled to take effect in July 2013. Shortly thereafter, the parties began settlement talks. In comments to EPA filed before the agency published the final rule, ACC raised cost concerns as well as a jurisdictional argument, saying EPA should not use authority under FIFRA to collect data for some pesticide uses.

   ACC met with EPA and White House Office of Management and Budget officials in 2012, urging the agency to revise and re-propose the pending rule. ACC officials have said that EPA's economic analysis was flawed, wrongly assumed the rule would not expand required data generation and underestimated the rule's economic impacts.

   EPA, meanwhile, suggested in the past that the dispute stems from differing interpretations of the 1996 Food Quality Protection Act and the 1998 Antimicrobial Technical Correction Act, both of which addressed how pesticides are defined for regulatory purposes.

   The settlement further requires that the pending USI include definitions for “direct food use,” “indirect food use,” and “nonfood use.”

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5. Udall Set to Offer TSCA Reform Legislation With Industry Fees, Limited State Preemption

   Mar 10, 2015 | BNA Daily Environment Report

   By Pat Rizzuto

   Federal preemption of state chemical regulations would be narrowed under a bill to modernize the Toxic Substances Control Act that Sen. Tom Udall (D-N.M.) will introduce March 11, sources who have tracked the TSCA reform effort for years told Bloomberg BNA.

   Chemical manufacturers also would pay fees for specific services the Environmental Protection Agency provides as it reviews chemicals they would like to make or that already are in U.S. commerce, the sources said.

   States, however, could not enforce compliance with federal chemical standards, because state adoption of federal standards into state law would be precluded under the bill, sources said.

   The Senate Environment and Public Works Committee has scheduled a March 18 hearing on TSCA, a committee aide confirmed March 9. Legislation normally must be introduced at least one week before a hearing on it can be held.

   Staff from Udall's and other senators' offices reportedly continued negotiating final language in the forthcoming bill over the weekend.

   Bill Builds on Chemical Safety Improvement Act

   At issue is a new TSCA reform bill that four individuals BNA spoke with said builds upon the Chemical Safety Improvement Act, S. 2009, that the late Sen. Frank Lautenberg (D-N.J.) and Sen. David Vitter (R-La.) jointly introduced in 2013, but also addresses many concerns nongovernmental organizations have raised.

   NGOs raised numerous concerns about the Lautenberg-Vitter bill and a draft variation of it crafted by Sens. Vitter and Udall that Sen. Barbara Boxer (D-Calif.) released in September 2014 (182 DEN A-13, 9/19/14).

   Key NGO concerns in 2013 and 2014 included:

   • the bill's preemption of state regulation of chemicals designated to be low priorities by the EPA;

   • during the period after the EPA designates a chemical a high priority, states are largely precluded from acting, even though it may be years before the EPA decides whether or not to regulate the chemical; and

   • the bill's silence on funding the EPA for the increased workload the bill would impose.

   Core Elements Retained

   As in previous versions of the Chemical Safety Improvement Act and some other TSCA-reform measures, Udall's forthcoming legislation would require the EPA to review chemicals in commerce to determine whether the compounds posed an unreasonable risk to human health or the environment, sources told BNA.

   The EPA would designate chemicals to be either high or low priorities for further review. The bill then would direct the agency to assess the risks of high-priority compounds to determine whether regulations or other risk management controls were needed.

   Changes on Preemption

   Two or more individuals who had seen portions of the anticipated bill confirmed each of the following details in interviews with BNA.

   Regarding preemption, the draft legislation would:

   • allow states to regulate chemicals the EPA designates to be low priorities;

   • allow states to legally challenge the EPA's designation of a chemical as a low priority if the state is able to meet certain criteria in the bill;

   • require the EPA—after it has designated a chemical to be a high priority—to scope out within a specified number of months the uses of the chemical, exposure scenarios and hazards it would analyze through its risk assessment;

   • allow states to regulate a high priority chemical if the state regulation addressed a use outside the scope of the EPA's risk assessment;

   • preempt states from regulating high priority chemicals if the state's regulation would address a use within the scope of the EPA's assessment;

   • specifically exempt existing and future regulations issued under California's Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986; and

   • grandfather other state chemical regulations, meaning if the bill became law, only future regulations would be preempted.

   Not Yet Introduced but Getting Mixed Reviews

   Some individuals BNA spoke with said these changes on preemption were significant compromises made by chemical manufacturers, states and NGOs

   One TSCA attorney said so many compromises had been made in—and yet so many concerns continue to be raised about—Udall's draft that it would be difficult to predict whether chemical manufacturers or Republicans in Congress that promote states' rights will support the legislation once it is released.

   “Senators Udall and Vitter have made improvements to their legislation over the past two years,” Safer Chemicals, Healthy Families, wrote March 9 in an open letter to senators. The letter was signed by 20 environmental, educational and medical organizations as well as the International Association of Fire Fighters and United Steelworkers.

   Additional changes are needed, however, the coalition said.

   Safer Chemicals, Healthy Families said it agrees with concerns the general counsel for California's attorney general raised in a March 8 letter to Boxer.

   General Counsel Brian Nelson said California's Attorney General had three primary concerns about the Udall draft:

   • the preemption of state's ability to protect their residents and environment years before potential federal regulations would take effect;

   • the unduly burdensome standards applicable to state waivers from preemption; and

   • the inability of state authority to replicate federal standards in state statutes.

   State preemption of high-priority chemicals years before EPA action “presents the most significant and—absent amendment—insurmountable concern,” Nelson wrote.

   His concern, and that of Safer Chemicals, is that it could take the EPA seven years or more to manage the risks a high-priority chemical poses and that state actions on that chemical would, in many or most cases, be preempted.

   Nelson said he also is concerned that the draft bill would specifically preclude states from adopting chemical regulations already established by the federal EPA.

   That provision would mean states could not enforce chemical regulations as they already commonly do for air, water, pesticide and other rules, he wrote.

   Funding

   Two or more sources also confirmed each of the following details regarding funding for the EPA:

   • the bill would authorize the EPA to establish fees for various services it provides chemical manufacturers;

   • the fees chemical manufacturers would pay would be capped at $18 million or at a specified percentage of the EPA chemicals program budget;

   • if Congress allowed the budget it allocates for the EPA's chemicals program to drop below a specified threshold, industry no longer would have to pay the authorized fees; and

   • fees would be paid into a dedicated fund to ensure that the money goes to the agency's chemicals program.

   Other Details Including Consumer Products

   Two or more sources also confirmed the following two details regarding Udall's anticipated legislation.

   The bill would require the EPA to designate at least 10 chemicals as high priorities each year for the first three years. The high-priority designation would kick off a five- to seven-year deadline by which the agency is to assess the risks of the chemicals and manage unreasonable risks.

   The number of chemicals to be designated annually as high priorities would increase to 20 each year three years after the bill would become law and to 25 annually five years after enactment.

   The bill would establish an Interagency Sustainable Chemistry Program. That program would, essentially, be identical to one Sen. Christopher Coons (D-Del.) proposed in 2014 via the Sustainable Chemistry Research and Development Act, which did not move.

   Safer Chemicals, Healthy Families raised an additional concern in its open letter regarding a provision it said Udall's draft bill contains.

   The provision addresses the EPA's regulation of chemicals in manufactured goods, such as carpets, computers and cars.

   The EPA would have to prove that the use of each chemical in each product posed an unreasonable risk, the coalition's letter said.

   That requirement would weaken the EPA's ability to ensure imported products do not contain chemicals of concern such as formaldehyde, and it would substantially slow the agency in addressing an issue of central concern to the public, the coalition said.

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6. States Lead the Way

   Mar 9, 2015 | Environmental Working Group

   By Mary Ellen Kustin

   States are leading the way when it comes to protecting people from dangerous chemicals. And it’s a good thing, because the federal Toxic Substances Control Act, on the books since President Ford signed it into law, is broken.

   This statute is so dysfunctional that only five of the tens of thousands of chemicals in commerce have been restricted under its authority.

   To fill the regulatory gap, 33 state governments have taken action to protect their citizens from well-known hazardous chemicals such as BPA, formaldehyde, lead, mercury and flame retardants. (See maps below for more details.) Many of the state laws take children’s health into special consideration when banning toxic chemicals from consumer goods like toys, baby bottles, sippy cups and children’s jewelry.

   But a chemical industry-backed bill being offered by Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) would block states from taking new actions to regulate chemicals that the U.S. Environmental Protection Agency has designated high priority.  

   Maine, Vermont and California grant their state agencies authority to give priority to chemicals of concern and to regulate those chemicals in products. Both Maine and Vermont focus on children’s products. Lawmakers in New York, Oregon and Washington are considering legislation to grant their state agencies similar authorities.

   The California Attorney General’s office recently sent a letter to Washington asserting that the industry bill might undermine the state’s ability to protect Californians from toxic chemicals.

   Of greatest concern, the letter said, was that the industry bill would prevent state authorities in California (and elsewhere) from regulating “high priority chemicals” years before federal regulations could take effect.  The industry bill would also prevent states from passing laws to supplement and co-enforce federal regulations once they’re on the books, even though states commonly do so under other environmental and consumer protection statutes.

   In some instances, the industry bill would undercut states’ abilities to protect people through other environmental laws, such as those meant to protect air and water. 

   True TSCA reform should give priority to human health over industry interests. Because states have played a pivotal role in recent years in taking actions to protect public health, TSCA reform must maintain a role for states to regulate dangerous chemicals and must preserve states’ capacity to supplement the work of the federal government.

   Click on the maps below to see where state governments have taken action to protect people’s health from hazardous chemicals.
   

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7. Worker Exposures to Cobalt, Increased Uses Backdrop as NTP Reviews Its Carcinogenicity

   Mar 10, 2015 | BNA Daily Environment Report

   By Pat Rizzuto

   The National Toxicology Program has released its protocol for evaluating the carcinogenicity of cobalt and certain cobalt compounds.

   The protocol, posted online March 9, described the program's approach to surveying scientific literature to identify toxicity, worker exposure and other studies of cobalt. The protocol also described criteria the NTP proposes to use to assess the quality of studies it identifies.

   Concerns about workplace exposure and inadequate information to evaluate the metal's carcinogenicity prompted the nomination of cobalt and cobalt compounds for re-review and possible reclassification in the Report on Carcinogens (RoC).

   A National Toxicology Program study of cobalt (CAS No. 7440-48-4) with rodents, summarized in a report the agency released in 2013, concluded the metal caused cancer (205 DEN A-11, 10/23/13)

   Cobalt has not been mined in the United States for more than 30 years, according to the NTP.

   Mining, Increased Uses

   Formation Metals Inc., however, has been permitted to operate a new mine and mill in Idaho, according to its website.

   Exposure to the metal may increase not only from mining activities, but from its new uses in green technologies such as rechargeable batteries required for electric and hybrid electric vehicles.

   Two cobalt compounds—cobalt sulfate and cobalt-tungsten carbide: powders and hard metals—already are classified as reasonably anticipated human carcinogens in the RoC, a congressionally mandated list of substances and exposure situations that may cause cancer in people or are known to do so.

   The International Agency for Research on Cancer (IARC) has reviewed several cobalt substances and classified some as possibly carcinogenic to humans and “cobalt metal with tungsten carbide” as probably carcinogenic to humans.

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8. Studies Estimate EDC Exposure in EU Costs €157bn

   Mar 9, 2015 | Chemical Watch

   By Carmen Paun

   Exposure to endocrine disrupting chemicals (EDCs) in the EU has an annual price tag of at least €157bn, according to the US-based Endocrine Society, a professional, international medical organisation in the field of endocrinology and metabolism.

   The figure is the conclusion of a series of studies published by the society last week, and the amount represents the costs of health care expenses, lost productivity and lost earning potentials, the scientists behind the research say.

   The 18 scientists from eight countries who worked on the studies achieved consensus at least for a probability of 20% causation by EDCs of conditions and diseases such as: IQ loss and associated intellectual disability;autism;attention deficit hyperactivity disorder (ADHD);childhood obesity;adult obesity;adult diabetes;cryptorchidism;testicular cancer; andmale infertility and mortality associated with reduced testosterone.

   The main categories of chemicals taken into consideration for the studies were pesticides, phthalates and bisphenol A (BPA), flame retardants and a few other chemicals.

   The highest cost, of €132bn, according to the studies, is generated by the neurological impacts – including ADHD – of exposure to substances such as polybrominated diphenyl ether (PBDE) flame retardants and organosphopates.

   Child and adult obesity, as well as adult diabetes, cost some €15bn/year in the EU, the studies say. The authors link these diseases to exposure to the pesticide dichlorodyphenyldichloroetylene (DDE), phthalates and BPA, the latter before birth. The cost of premature deaths associated with EDC exposure was estimated at €6bn/year, while male reproductive disorders linked with exposure to phthalates and to PBDEs before birth, cost €4bn/year.

   When it comes to the EDCs causing the largest annual costs, pesticides lead the pack, with a bill of €120bn, followed by phthalates and BPA, with €26bn, flame retardants at €9bn and other chemicals studied at €2bn.

   The team of scientists was led by professor Leonardo Trasande from New York University (NYU) School of Medicine, and included Andreas Kortenkamp, professor of human toxicology at Brunel University and lead author of an EDCs report for the European Commission (CW 20 February 2012); Philippe Grandjean, professor of environmental medicine at the University of Southern Denmark and environmental health professor at the Harvard School of Public Health; and Dr Joseph DiGangi, senior science adviser for the International POPs Elimination Network (Ipen). The team used a weight-of-evidence methodology adapted from the Intergovernmental Panel on Climate Change (IPCC) and based upon levels of available epidemiologic and toxicologic evidence for one or more chemicals contributing to disease by an endocrine disruptor mechanism.

   The cost calculation took into account the different living standards across EU member states by using the purchasing power parity index, Martine Bellanger, professor of health economics at the EHESP French School of Public Health, told a press conference organised by the Endocrine Society in Brussels on 5 March.

   Professor Trasande warned that the €157bn figure may be an underestimation, and the real cost could be as high as €270bn, because the studies examined less than 5% of EDCs, only a subset of health conditions linked to exposure to them and only a portion of the economic costs associated with those diseases.

   And, while acknowledging that many uncertainties remain with these estimations, he added that the team "believe this data presents an opportunity for a balanced debate about the costs of using EDCs".

   “You can look at this as a progress report,” professor Grandjean told the press conference. “Once you get better data from different corners of the EU like Romania, Portugal, Finland, the UK, we can put all of that together to develop better models. We think that what we have done leads to the right level of magnitude, but it can certainly be fine-tuned.”

   The next step, said professor Trasande, is to extend the work to the US context.

   The European Commission is currently conducting an impact assessment looking at the costs and benefits of introducing criteria for EDCs in the biocides and pesticides products Regulations (CW 29 January 2015).

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Chemical Security News

9. Coast Guard Reports Spill in Houston Ship Channel

   Mar 9, 2015 | The Wall Street Journal

   By Alison Sider

   A hazardous and highly polluting chemical spilled into the Houston Ship Channel on Monday afternoon when two vessels collided in foggy conditions, the U.S. Coast Guard said.

   One of the vessels that crashed was a chemical tanker carrying 216,000 barrels of methyl tertiary-butyl ether, or MTBE, the Coast Guard said.

   It isn’t yet clear how much of the chemical spilled or whether the leak is ongoing, the Coast Guard said. A two-mile section of the Houston Ship Channel, a busy industrial waterway that is home to dozens of refineries and petrochemical plants, is closed until further notice.

   MTBE was first used in the U.S. in 1979 as a replacement for lead in gasoline, according to the Environmental Protection Agency. For decades MTBE was added to American gasoline to make the fuel burn better and to curb smog emissions. About 10 years ago ethanol, a renewable fuel made from corn or sugarcane, replaced MTBE as the octane-boosting agent in U.S. fuel.

   Though several states have banned MTBE and it has been the subject of lawsuits over drinking-water contamination, the chemical is still manufactured in the U.S. and shipped overseas, primarily to countries in Latin America, where blending MTBE into gasoline is still legal.

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10. Houston Ship Channel Partly Closed After Crash Spills MTBE

    Mar 10, 2015 | Bloomberg

    By Harry Weber

    A Venezuela-bound tanker spilled an unknown amount of gasoline additive MTBE into the Houston Ship Channel after a crash with another vessel, shutting down a portion of the waterway and one container terminal.

    The Carla Maersk, a 45,000-deadweight ton tanker, was heading out of the ship channel and had set course for Amuay Bay in Venezuela at the time of the collision with the MV Conti Peridot, a 57,000-deadweight ton bulk carrier that was traveling into the channel, according to vessel tracking data compiled by Bloomberg.

    A roughly one-mile stretch of the channel north of Galveston Bay was closed during the cleanup and response, according to Lt. Brian Sadler, a watch supervisor with the U.S. Coast Guard’s Vessel Traffic Service. The leak has been secured, the Coast Guard said. Twenty-six ships are waiting to come inbound to Houston and 14 are waiting to leave, according to an e-mailed statement from a group overseeing the incident that includes the Coast Guard.

    Operations at the Barbours Cut container terminal at the mouth of Galveston Bay were suspended after the crash and won’t resume on Tuesday morning, a statement on the Port of Houston Authority’s website shows.

    The collision in the 52-mile (84-kilometer) long waterway, through which about 400 vessels pass each day, comes almost a year after another crash closed the entire channel for three days. EPA Notified

    Thick fog was enveloping the Houston area around the time of the collision Monday, and ship pilots stopped boarding vessels for a period of time. There was no word on when the closed section of the channel would reopen. A shelter-in-place order was issued for the area around the spill, according to the Coast Guard.

    West Texas Intermediate crude for April delivery added 14 cents to $50.14 a barrel in electronic trading on the New York Mercantile Exchange at 12:43 p.m. Singapore time.

    TPC Group Inc. manufactured some of the MTBE on the tanker, which loaded at the Houston-based company’s dock, Sara Cronin, a spokeswoman for TPC, said by phone Monday. TPC doesn’t own the spilled MTBE, she said.

    TPC, formerly known as Texas Petrochemicals Inc., was acquired in 2012 by First Reserve Corp. and SK Capital Partners.

    The U.S. Environmental Protection Agency was notified about the collision by the Department of Homeland Security’s emergency operations center, EPA spokeswoman Liz Purchia said in an e-mail responding to questions. The EPA has mobilized contractors to monitor the air at the spill site, she said. Water Supplies

    MTBE, or methyl tertiary butyl ether, is an oxygenate added to gasoline to boost octane levels and to help fuel burn cleaner. While it’s been replaced by ethanol in the U.S. after it contaminated drinking water supplies, it is still used in other countries. Its offensive odor and taste can render water undrinkable, while its health effects are unclear. U.S. production is shipped abroad, with Venezuela receiving the second-most in December behind Mexico.

    The chemical gets into water faster than other gasoline components when storage tanks leak. It can be persistent in underground water supplies, while it evaporates relatively quickly from surface water, according to the EPA website.

    On March 22, 2014, a bulk carrier and fuel barge collided, causing 4,000 barrels of fuel oil to spill and disrupting about $1.5 billion in commerce during the three days the entire channel was closed. At the time of that crash, fog was just beginning to lift.

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Energy and Environment News

11. (ACC Mentioned) In Novel ESPS Lawsuit, Final Briefs Keep Focus On Procedural Questions

    Mar 9, 2015 | InsideEPA

    By Anthony Lacey

    EPA and coal company Murray Energy have filed final briefs in the company's novel litigation seeking to block the agency from promulgating a final rule regulating greenhouse gases (GHGs) at existing power plants, with the litigants focused largely on a series of threshold procedural questions that will determine whether judges reach the merits before EPA issues a final rule this summer.

    The briefs, filed March 9, mark the culmination of months of legal filings in the litigation, In re: Murray Energy Corporation, roughly a month before April 16 oral arguments in the U.S. Court of Appeals for the District of Columbia Circuit.

    In its March 9 final brief, Murray argues that it has standing to challenge the proposed existing source performance standards (ESPS), claiming that EPA's proposal has already led to utilities planning to shutter coal plants and that EPA's modeling for the rule projects future closures, which would harm the company by reducing demand for coal.

    “The injury to Murray Energy Corporation is actual, concrete, and traceable to EPA’s actions, and this Court has the ability to stop EPA,” the brief says.

    But the Department of Justice (DOJ), on the agency's behalf, argues in its final brief that Murray lacks “Article III” standing to sue, saying it is only a proposed rule that is not traditionally subject to judicial review. For the high legal bar of standing, “Murray cannot possibly meet this burden here, because the action it challenges is only a 'proposed' rule,” says the DOJ brief. “[I]t is too speculative to support standing.”

    “At this stage, when EPA is still evaluating and has not yet responded to the millions of comments it received, any predictions about what state-specific guidelines EPA might adopt in a final rule -- let alone what requirements each state, in turn, independently may impose on power plants pursuant to such guidelines -- are pure conjecture,” says DOJ, rejecting Murray's claims that the proposal is already harming the coal sector. The brief notes that industry has already blamed other EPA rules, such as the utility air toxics rule, for causing such harms.

    The coal company and various industry trade associations are challenging the agency's June 18 proposed ESPS, which the agency developed under Clean Air Act section 111(d) authority. The rule is part of President Obama's Climate Action Plan, which also includes a proposed section 111(b) GHG rule for new utilities.

    Under the ESPS, EPA is proposing rate-based GHG reduction targets for each state but would then defer to states on crafting implementation plans for their emissions reduction strategies to comply with the rule. Industry, GOP critics and some states warn the rule will impose massive costs, shutter coal plants, and is beyond EPA's authority.

    The company is asking the court to block the agency from finalizing the proposed rule under the All Writs Act, while also charging that the proposal is unlawful under the air act.

    Murray's litigation, together with a similar case brought by West Virginia and a group of states, focus on the thorny legal question of whether the agency may regulate GHG emissions from existing power plants under section 111(d) of the act if it is already regulating their air toxics under section 112 of the air law, which authorized the agency's mercury and air toxics standards for power plants.

    Final Rule

    The issue will also be litigated if and when EPA promulgates a final rule this summer but Murray and the states are asking the court to address the issue before the final rule is issued. As a result, the proposed rule's critics face a high procedural bar if they are to get the court to address the issue.

    If Murray and the other petitioners are able to overcome the procedural hurdles, the court will then have to resolve the merits issue, which is complicated because House and Senate amendments to section 111(d) on the issue were never reconciled in a conference committee before the 1990 air act amendments were signed into law.

    The Senate amendment would explicitly allow EPA's proposed ESPS by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section. The House amendment could be read as prohibiting it because the focus of the exclusion is on source categories, not pollutants.

    The issue is further complicated because the Supreme Court is currently considering a case, National Mining Association, et al., v. EPA, et al., that challenges the legality of EPA's air toxics rules for power plants, litigation that could eliminate the states' legal argument if the high court were to vacate the rule -- though few observers expect the high court to go that far.

    On the merits, Murray argues that EPA lacks power to issue the 111(d) rule because the air law bars development of a 111(d) standard for any industrial sector that is already subject to a section 112 national emissions standard for hazardous air pollutants. Murray says EPA's final section 112 utility maximum achievable control technology rule therefore bars development of the ESPS.

    “Congress sensibly banned EPA from doubly regulating source categories under both Sections 111(d) and 112 because simultaneous, uncoordinated design of national and state-by-state standards maximizing emission reductions would unduly jeopardize their viability by imposing conflicting or unaffordable requirements,” says Murray Energy, which then faults EPA for claiming there is ambiguity in the Clean Air Act on this issue.

    The company points out that EPA recognized this interpretation during the Clinton administration, when the agency issued a fact sheet on landfill emissions standards that acknowledged this interpretation.

    Murray says Congress in the 1990 air law amendments aimed to preserve the prohibition on regulating a section 112 source with a section 111(d) rule, albeit with the Senate proposing an exception for specified emissions from existing incinerators. The House at the time approved a bill that instead said section 111(d) rules could be crafted for almost any pollutant covered by section 111 if it did not cover emissions regulated under section 112.

    The House bill also included a measure allowing EPA to choose whether existing utilities should be regulated under section 111 or 112. “In conference, the House and Senate agreed to include in the final bill the Senate bill incinerator provision, the House bill power plant provision, and the House bill amendment to the mandate program,” says Murray Energy, claiming that Congress did not create any ambiguity that would give EPA authority for the ESPS.

    But DOJ says that if the court reaches the merits, EPA should have deference for how it resolved the drafting error. For example, it says that a “literal” reading of the House amendment at issue “can be read as authorizing EPA to address power plant emissions under that provision so long as the pollutant in question (here, carbon dioxide) is not a criteria pollutant,” according to the brief.

    “Even if the Court concluded that there was a 'direct conflict' between the House and Senate amendments, which it did not think the agency could properly address through interpretation, the result would not be what Murray or Intervenors wish,” DOJ says. Instead, under that situation the statutory text would revert to the pre-1990 air law which would either render it null or preserve EPA's regulatory authority, DOJ argues.

    DOJ says the D.C. Circuit should defer to EPA to reach a conclusion on how to resolve the questions over the statutory text. “EPA has not yet determined what weight to give the Senate amendment; whether or how to reconcile it with the House amendment; or if reconciliation is even necessary. Intervenors suggest that, instead of having the opportunity to proffer its conclusions on these issues, EPA must throw its hands in the air and look to either Congress to clarify its intentions or the Court to divine them. But separation of powers principles instead require that the agency to which Congress has delegated the implementation of a statute, and which has extensive expertise in interpreting and applying that statute, gets the first crack at answering such questions,” the brief says.

    Other Parties

    Dozens of other parties have intervened on EPA and Murray's behalf. For example, the National Federation of Independent Business and Utility Air Regulatory Group in a March 9 brief intervening on the coal company's behalf largely echo claims that EPA lack's authority and that the proposal is already imposing harm on industry that warrants the D.C. Circuit halting the regulation.

    Similarly, a coalition of industry groups including the American Chemistry Council and National Association of Manufacturers says in a March 9 brief that EPA has argued that the air law's section 111(d) is “facially ambiguous” on whether it can regulate under both that section and section 112. EPA says the ambiguity stems from a drafting error where Congress failed to remove from the 1990 air law revisions a Senate amendment that appeared to contradict the House amendment that barred regulation under both section 111 and 112. But the industry coalition argues that both the House and Senate sought to restrict EPA's authority rather than expand its powers.

    And Peabody Energy Corporation in its March 9 brief on Murray's behalf argues that the ESPS is flawed and that there is no statutory ambiguity allowing the rulemaking. “EPA is not seeking to fill interstitial gaps in the statutory scheme, or to resolve ambiguities in the House amendment or the Senate amendment, but rather to choose which version of the statute the agency wishes to make legally operative,” the brief says. “This is an attempt to exercise lawmaking power, not an exercise in executing the law. It is an impermissible power-grab under the separation of powers.”

    But several states and environmental groups are backing EPA. California, New York, and several other states argue in a March 9 brief that Murray’s interpretation of the air act cannot be reconciled with the language, structure, and history of the statute. They say there is sufficient ambiguity in the House and Senate amendments that they can be read to give EPA authority for the ESPS, contrary to what critics of the ESPS claim.

    And a coalition of environmental groups including the Natural Resources Defense Council and the Sierra Club say in their March 9 brief that the court lacks jurisdiction to review the suit because it challenges a proposed and not final rule. But they argue that even if the court considers the case on the merits then it must reject the suit, because EPA is within its air law authority to craft the ESPS.

    Responding to industry charges that EPA is seeking “double regulation,” the environmentalists say that the statute gives the agency power to regulate sources of different pollutants by different means. “The Act’s multi-program regime for stationary sources recognizes that different pollutants produce different harms and that . . . the best control regime for one pollutant will not necessarily abate emissions of another. . . . Indeed, the Act sometimes regulates a source’s emissions of a single pollutant under multiple programs to address different health or environmental impacts. No stationary source is statutorily entitled to be regulated under only one section of the Act. Instead, the overriding principle is comprehensive protection of public health and welfare,” the environmentalists argue.

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12. (ACC Mentioned) Study: US Chemical Exports Linked to Shale Gas May Double By 2030

    Mar 9, 2015 | Hydrocarbon Processing

    America’s shale gas revolution could lead to dramatic growth in US chemical exports over the next 15 years, according to a new report from Nexant and sponsored by the American Chemistry Council (ACC). 
    Gross exports of chemical products, including plastics, linked to plentiful and affordable natural gas are projected to double, from $60 billion in 2014 to $123 billion by 2030. 
    The US trade surplus for the selected chemicals is projected to increase from $19.5 billion to $48.3 billion over the same period, with China, Mexico and other Americas remaining the leading net export destinations.
    The report, “Fueling Export Growth: US Net Export Trade Forecast for Key Chemistries to 2030,” provides estimates of annual US net trade volumes for 66 chemicals derived from unconventional oil, natural gas and gas liquids; their expected destinations (countries and/or regions); and their potential trade value. 
    ACC and Nexant focused on the trade outlook for products that are expected to see the greatest trade increases as a result of US chemical production gains from 2010 to 2030. 
    While energy markets are dynamic, the conclusions of the report point to a long-term competitive advantage for US manufacturers on shale gas-advantaged chemicals. It’s a follow-up to 2013’s “Keys to Export Growth for the Chemical Sector,” which identified several policy and regulatory changes that could facilitate billions of dollars in new export growth for the industry.
    “Boosting exports is one of the surest paths to a stronger economy and new jobs,” said ACC chief executive Cal Dooley. “Even with the recent drop in oil prices, US chemical manufacturers enjoy a distinct competitive advantage in global markets, which will help them ‘grow the pie’ for other sectors of the American economy.” 
    Chemical companies have begun or are planning 223 shale-related projects to date, the ACC said, including eight announced in December, representing a cumulative investment of $137 billion. Fully 60% is foreign direct investment.
    “Free-market access to advantaged feedstocks and US infrastructure are two key reasons more than half of the announced chemical industry investments are coming from outside the US,” said ACC chief economist Kevin Swift. “Few places can offer investors the trio of lower-cost feedstock, reliable infrastructure and a regulatory environment that is moving toward supporting rather than hindering competitive success.”
    The new data foretells an even brighter outlook for American manufacturing pending the outcomes of US free trade negotiations that could eliminate trade barriers and expand access to overseas markets. Historic movement toward greater free trade is expected to continue in leading export destinations, which could enable the US to share its shale gas bounty with the world, while cutting down on costs through the reduction or elimination of tariffs and the promotion of greater regulatory coherence.
    “Given that net exports of plastics are expected to swell to more than $21 billion in the next fifteen years, reducing or eliminating protective tariffs could have a large impact on the overall growth of U.S. net exports,” said Greg Skelton, the ACC's senior director of regulatory and technical affairs. “By solidifying an ambitious free trade agreement with the EU, we estimate 6.5% duties on linear low-density polyethylene (LLDPE) to Europe could be eliminated by 2017.”
    Japan’s inclusion in the Trans-Pacific Partnership (TPP) as a free trade partner also would help eliminate duties on polyethylene, which currently stand at 6.5% for trade between the US and Japan. Were China eventually to join the TPP or negotiate a separate free trade agreement with the US, chemical manufacturers could potentially eliminate an additional 6.5% in Chinese polyethylene tariffs.

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13. BOEM Defends Plans for Seismic Surveys For Oil, Gas Exploration in Atlantic Offshore

    Mar 10, 2015 | BNA Daily Environment Report

    By Alan Kovski

    Critics continue to misrepresent the risks to marine life from planned seismic surveys off the Atlantic Coast by oil and gas companies, a federal environmental official said March 9.

    The statement from William Brown, chief environmental officer of the Bureau of Ocean Energy Management, came as opponents of the proposed oil and gas exploration mounted more attacks on BOEM's plan.

    Oil and gas companies have not conducted seismic surveys in U.S. Atlantic waters for decades. It is possible that new surveys will start as early as this year, although industry observers are skeptical given the slow pace of BOEM's work on permit applications.

    Brown said his agency's estimate of potential harm from seismic airguns, which broadcast sound waves through water to the rocks below, is consistent with the documented record of seismic work being conducted without adversely affecting animal populations.

    “BOEM's conclusion regarding the impact of these surveys is in stark contrast with public statements citing BOEM research and asserting that many thousands of marine mammals will be killed or injured,” Brown said.

    Progress Not Seen on Permits

    BOEM has received nine applications for permits to conduct seismic surveys in the Atlantic since it issued its record of decision on the program in July 2014, but so far it has not processed the applications.

    Ken Wells, president of the International Association of Geophysical Contractors, said his association is worried about the slow pace of BOEM work, so much so that he would not hazard a guess on what year the seismic work might actually begin. The companies in his association include contractors who conduct seismic surveys for oil and gas companies.

    In January, BOEM took another step in the direction of Atlantic oil and gas exploration when it proposed to include a 2021 lease sale in the South Atlantic, somewhere off the coastline ranging from Virginia to Georgia, as part of BOEM's 2017-2022 planning period (18 DEN A-1, 1/28/15).

    The leasing proposal, like the seismic plans, is drawing opposition, the latest coming in the form of a letter from 12 senators to Interior Secretary Sally Jewell, whose department includes BOEM.

    The letter, signed by 11 Democrats and an independent, asked that the leasing plan be dropped and characterized seismic surveying as “extremely harmful to marine life and the environment.”

    ‘Threat to Marine Life' Cited

    The senators' letter followed by four days a letter signed by 75 scientists and circulated by the Natural Resources Defense Council, an environmental activist group, asking President Barack Obama to reject the proposal for a seismic survey program.

    The proposal “represents a significant threat to marine life throughout the region,” the letter said.

    The environmental activist group Oceana has been especially prominent among critics and has said BOEM's own estimates are that the seismic survey program will injury 138,000 whales and dolphins and disturb 13.5 million others.

    “That is actually not what we estimate,” Brown said in his March 9 statement. Not only were BOEM's estimates far lower in its programmatic environmental impact statement (PEIS), but the estimates also did not take into account mitigation measures such as halting airgun firing when marine mammals are spotted entering the survey area.

    “Therefore, even those numbers included in the PEIS are far in excess of those takes we anticipate,” Brown said, using the Marine Mammal Protection Act term “take” for injury or disturbance.

    Playing Defense at BOEM

    It was the second time Brown has posted a “science note” since critics began denouncing the seismic survey plan after the record of decision was issued. The first time, in August, he said there has been no documented scientific evidence of noise from airguns affecting animal populations (164 DEN A-9, 8/25/14).

    Some of the subsequent criticisms were reactions to that statement, he said March 9.

    Wells at the geophysical contractors' group said the Gulf of Mexico has been “an active laboratory for how seismic can be done safely and how mitigation measures can work,” with a 50-year record.

    “We have been troubled by how these numbers have been twisted,” Wells said of the BOEM environmental impact estimates.

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14. Revisions to Draft Rules for Oil, Gas Wells In Pennsylvania Include Stream Protections

    Mar 10, 2015 | BNA Daily Environment Report

    By Leslie A. Pappas

    The protection of streams and wetlands within 100 feet of well pads and how to address abandoned wells are among the changes in a revised draft of new rules governing surface activities at oil and gas well sites, Pennsylvania's Department of Environmental Protection (DEP) announced March 9.

    The proposed changes to Chapter 78 of the Pennsylvania Code will be open for a 30-day public comment period starting April 4 and reflect information from more than 24,000 comments the agency received after the first version was opened for comment in December 2013, Acting DEP Secretary John Quigley said in a press release.

    Other issues in the revised draft include centralized wastewater impoundments, noise control, and the impact on public resources such as schools and playgrounds.

    The state's Oil and Gas Technical Advisory Board (TAB) and the Conventional Oil and Gas Advisory Committee (COGAC) will discuss the proposed revisions during meetings on March 20 and March 26, respectively, the DEP statement said. The meetings will be open to the public and broadcast via webinar, the DEP said.

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15. U.S. Court Upholds Interior Dept's Offshore Drilling Plan

    Mar 9, 2015 | Reuters

    By Ayesha Rascoe

    An appellate court has rejected a challenge to the current federal leasing plan for offshore drilling, ruling that the government properly weighed the costs and benefits of allowing oil and gas development.

    The Center for Sustainable Economy had filed a lawsuit against the Interior Department's offshore leasing program for 2012 to 2017, arguing that the government had violated the law by failing to adequately balance the environmental costs of drilling with the benefits of additional oil and gas production.

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16. EPA Claim on Power Plant Emissions Data Questioned by Environmental Organizations

    Mar 10, 2015 | BNA Daily Environment Report

    By Patrick Ambrosio

    The Environmental Protection Agency's justification for establishing an alternative method for compliance with mercury and air toxics standards during power plant startup and shutdown conflicts with the sulfur dioxide monitoring requirements of the agency's acid rain program, according to an environmental organization that is suing the agency.

    Eric Schaeffer, director of the Environmental Integrity Project, told Bloomberg BNA in a March 6 e-mail that the EPA's decision to establish that alternate work practice is based primarily on a new argument that power plant emissions cannot be accurately measured during startup, a rationale that he described as a “total mess.” If continuous monitoring is actually unable to accurately measure power plant emissions during startup, then the agency would need to revise the methods used to monitor sulfur dioxide emissions under the acid rain program, Schaeffer said.

    At issue is a November EPA rule (RIN 2060–AS07) that allowed coal- and oil-fired electric generating units to comply with the 2012 mercury and air toxics standards by initiating startup using clean fuels and using the maximum amount of clean fuels possible during the entire startup period. The Environmental Integrity Project, the Chesapeake Climate Action Network and the Sierra Club filed a lawsuit challenging the rule and intend to ask the U.S. Court of Appeals for the District of Columbia Circuit whether the EPA violated the Clean Air Act in establishing the alternative work practice, which those organizations called an exemption from emissions standards during the first four hours after electricity generation begins (Util. Air Regulatory Grp. v. EPA, D.C. Cir., No. 15-1013, statement of issues filed 2/26/15; 40 DEN A-3, 3/2/15).

    Schaeffer said the environmental organizations are concerned about the alternative compliance method because data from power plants in Texas and other states show that large amounts of particulate matter and other pollutants can be emitted during power plant startup.

    The Utility Air Regulatory Group, a power plant trade group, also filed a lawsuit seeking review of the alternative work practice rule. The industry and environmental organization challenges have been consolidated by the D.C. Circuit.

    Clarification Requested

    The three environmental groups involved in the lawsuit also have filed a request for correction under the Data Quality Act and the EPA's information quality guidelines.

    The groups identified a “conflict” between the EPA's claim in the MATS rulemaking that sulfur dioxide cannot be accurately measured during startup and shutdown and the agency's past statement that sulfur dioxide emissions data reported under the acid rain program is complete and accurate. Power plants have been required to measure sulfur dioxide emissions at all times on at least an hourly basis for more than 20 years under the acid rain program, and the EPA has “vouched for the integrity and accuracy of that data,” according to Schaeffer.

    In the final rule that established the alternative work practice, the EPA said that it was establishing a work practice for startup and shutdown due to “the current technical challenges” to accurate measurement of emissions of hazardous air pollutants during startup and shutdown.

    Schaeffer said that the environmental groups don't agree with the EPA's contention that sulfur dioxide monitoring is inaccurate.

    “It's as good or better than any of the other information EPA uses to quantify emissions,” he said. “But the agency can't reject that same data from the MATS rule because it's inconvenient, or because they need a rationale for an exemption.”

    The EPA did not respond to a request for comment on the correction request. The agency's information quality guidelines allow the public to seek and obtain the correction of information disseminated by the agency if the information does not comply with White House Office of Management and Budget or EPA guidelines. The EPA's goal is to respond to all correction requests within 90 days, according to the agency's website.

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17. Supreme Court Allows Extended Arguments On EPA's Power Plant Mercury Standards

    Mar 10, 2015 | BNA Daily Environment Report

    By Patrick Ambrosio

    The U.S. Supreme Court will hear extended oral arguments on whether the Environmental Protection Agency was required to consider cost when the agency determined it was appropriate to regulate mercury and other hazardous air pollutants from power plants, a finding that ultimately led to the promulgation of the 2012 mercury and air toxics standards (Michigan v. EPA, U.S., No. 14-46, order filed 3/9/15).

    The court issued an order March 9 granting motions for enlargement of argument time and for divided time during oral arguments, which are scheduled to be held on March 25.

    Sean Donahue, an attorney representing the Environmental Defense Fund, told Bloomberg BNA March 9 that the court's order allows 90 minutes for oral arguments instead of the previously scheduled 60 minutes. A coalition of 21 state governments, led by Michigan, and the Utility Air Regulatory Group, a power plant trade group, filed a motion March 3 requesting that the court allow for extended arguments.

    Briefing in Michigan v. EPA has focused on whether the phrase “appropriate and necessary” in Section 7412(n)(1)(A) of the Clean Air Act requires the agency to consider cost. That section of the law instructed the agency to study air toxics emissions from power plants and determine if regulation of those emissions was needed. The industry and state petitioners argued that the phrase “appropriate and necessary” signals that Congress intended for the EPA to consider the cost of regulation, while the EPA said the petitioners have failed to establish that the law unambiguously requires cost consideration, so the agency is entitled to deference from the court on its interpretation of the statutory language (39 DEN A-6, 2/27/15).

    The mercury and air toxics standards, the rule the EPA promulgated after making its determination that regulation of power plant emissions was appropriate and necessary, is estimated to cost the power industry $9.6 billion annually. The U.S. Court of Appeals for the District of Columbia Circuit upheld the standards in an April 2014 decision, finding that the EPA permissibly interpreted the Clean Air Act when it decided not to consider the cost of regulation in making its finding on power plant emissions (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).

    Industry Respondents Allotted Time

    In addition to granting additional argument time, the Supreme Court also allowed for divided argument time between the petitioners and the respondents.

    On the petitioners' side, the state governments will receive 30 minutes for arguments and the Utility Air Regulatory Group will receive 15 minutes. On the respondent side, the EPA will receive 30 minutes for arguments and a coalition of industry groups that support the EPA, led by Calpine Corp. and Exelon Corp., will receive 15 minutes, according to Donahue.

    Donahue said that the Environmental Defense Fund and other nonprofit respondents did not request any time for arguments, even though those groups did receive argument time before the D.C. Circuit in White Stallion Energy Center LLC v. EPA. Given that the Supreme Court usually doesn't divide argument time up more than two ways unless there are “extraordinary circumstances,” it made sense for the industry respondents to get some argument time to explain that industry is not “monolithic” in their views on the mercury and air toxics standards, Donahue said.

    The industry respondents, which also include National Grid Generation LLC and the Public Service Enterprise Group, argued in their merits brief that even if the Supreme Court determines cost consideration was required, the MATS standards should be affirmed because the agency prepared a cost-benefit analysis showing that benefits of the regulation significantly outweigh the cost of regulation.

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18. Supreme Court Expands Time For Arguments on Toxics Standards

    Mar 9, 2015 | E&E News PM

    By Jeremy P. Jacobs

    The Supreme Court decided today to expand the time allotted for oral arguments in the challenge to U.S. EPA's Mercury and Air Toxics Standards.

    In a short order, the court granted a motion to provide 90 minutes for arguments in the consolidated cases brought by several states and industry groups, up from the usual hour.

    Twenty-one states and two industry groups -- the Utility Air Regulatory Group and National Mining Association -- are seeking to undermine EPA's 2011 Mercury and Air Toxics Standards, or MATS, one of the agency's landmark regulations from President Obama's first term.

    They contend EPA should have considered the rule's $9.6 billion price tag when determining it was "appropriate and necessary" to move forward with setting the standards.

    Given the large number of parties involved in the Supreme Court case -- which comprises three consolidated lawsuits -- both sides asked for extending the March 25 arguments.

    They also asked for divided arguments, meaning states and industry groups will each have time to present their case. That request was also granted today for both EPA and the challengers. So, states and industry challengers will have 45 minutes of divided time, then EPA will have 30 minutes followed by 15 minutes for attorneys representing companies like Calpine Corp. that support the agency's rule.

    EPA contends that the large health benefits of cutting emissions of mercury, lead, cadmium and other toxics far outweigh the rule's cost. The agency estimates that when it is fully implemented in 2016, MATS would yield health benefits of between $37 billion and $90 billion, including preventing 11,000 premature deaths.

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19. EPA Rejects Claim Of Extended Compliance Period Weakening CISWI Rule

    Mar 9, 2015 | InsideEPA

    By Stuart Parker

    EPA is rejecting environmentalists' claim that its decision to allow some facilities to demonstrate compliance with its commercial and industrial solid waste incinerator (CISWI) air rule over a 30-day period in effect leads to weaker emissions controls, fighting advocates' bid for a court to force use of short three-hour compliance testing.

    In a March 6 final brief on EPA's behalf in litigation over the CISWI emissions rule, the Department of Justice (DOJ) says the approach is reasonable and “[t]he use of a 30-day rolling average allows facilities to adjust to spikes arising from differences in operating conditions that may occur even in a well-maintained unit.”

    Further, “use of continuous monitoring, coupled with long-term averaging, allows facility operators to detect high emission levels in real time and to take whatever operational steps are required to ensure that the facility can maintain compliance with the standard over the averaging period.

    The total emissions over the averaging period cannot exceed that permitted by the standard,” according to the brief in the CISWI litigation known as American Forest & Paper Association, et al. v. EPA.

    DOJ also refutes claims that EPA should have used a three-hour “stack” compliance test, which measures the amount of a pollutant being emitted from a unit. The CISWI emissions standards “are not based on an assumption that compliance will be determined by stack tests,” DOJ says.

    “While data from stack tests was the starting point for calculating the standards . . . EPA used statistical methods to establish the standard at a level that represents what the average of the best performing sources achieve over the range of normal operating conditions,” the brief says.

    The “statistical methods” in question are known as the Upper Prediction Limit (UPL) or Upper Limit (UL). Environmentalists have also targeted the UPL and UL in their litigation over the CISWI rule, as well as related pending lawsuits over EPA's maximum achievable control technology (MACT) air toxics rules for both “major” and “area” source boilers.

    MACT Limits

    EPA is required under the Clean Air Act to set MACT emissions limits for existing sources using the average emissions of the top 12 percent of sources in a given source category -- but environmentalists say the UPL and UL are not averages. The D.C. Circuit has already questioned EPA's use of the UPL before, ordering the agency to better explain how the method comports with the air law's “average” requirement in an August 2013 remand of a rule setting MACT for sewage sludge incinerators in National Association of Clean Water Agencies (NACWA) v. EPA.

    DOJ says EPA has fully responded to that remand and that EPA's use of the UPL to account for variability in a source's likely future emissions is legitimate, countering advocates' claims that it leads to an unlawfully weak rule.

    On the UPL and UL, DOJ says EPA uses these methods “to establish emission standards at the level that the average of the best controlled unit is achieving under the full range of foreseeable operating circumstances.”

    Environmentalists claim in their final brief that using a 30-day average of emissions to determine compliance could undermine the emissions limits in the CISWI standards, in effect weakening them by measuring compliance over a much longer period than the three-hour smokestack test used to set whether the limits are being met.

    EPA has long acknowledged that lengthening averaging times for compliance with air standards could allow for more harmful spikes in pollution, environmental groups claim.

    But EPA “determined that both periodic stack testing and continuous monitoring with a 30-day rolling average were appropriate methods for monitoring compliance with those standards. Specifically, EPA determined that significant failures in the emissions control system will result in violations of a 30-day average almost as much as for a shorter average,” DOJ says. EPA has “broad discretion” on its selection of a monitoring regime to ensure compliance and its “technical judgment as to the appropriate averaging period” is entitled to deference, says DOJ.

    Legal Challenges

    Meanwhile, litigants in their final CISWI briefs revisit other arguments raised in earlier filings. Some of the most significant include environmentalists' accusation that EPA unlawfully avoided regulating certain types of CISWI, leaving the majority of such incinerators unregulated. The agency claims that it lacked the data to regulate all units and has not refused to regulate them indefinitely.

    Industry groups separately fault EPA's “pollutant-by-pollutant” method for setting the rule. Industry has long claimed that setting air rules on the basis of individual pollutants results in standards that are difficult or impossible for real-world plants to meet.

    EPA counters that the Clean Air Act requires “maximum” achievable control for each pollutant, and that industry's “lowest common denominator” approach, setting MACT based on the best-performing plants for all pollutants, would violate this requirement by setting insufficiently tough limits for specific pollutants.

    Industry in the case is also reiterating arguments that EPA should have calculated MACT “floors,” or minimum emissions limits, to take into account periods of startup, shutdown and malfunction (SSM) in order that its standards be “achievable.” The agency has been removing regulatory exemptions for SSM periods from various rules after the D.C. Circuit said in a prior ruling that the exemptions were unlawful.

    Whenever industry raises the MACT floors arguments, EPA responds that industry's preferred approach is impractical, given the many different malfunctions that can occur, and is not required by law. In its final brief on behalf of EPA, DOJ also argues that because startup and shutdown are predictable events, incinerators can actually achieve lower emissions than during regular operation by burning “clean” fuels rather than waste. Typically, startup and shutdown emissions from boilers are higher than emissions during regular operation, because control devices are not fully functional.

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20. Greens Face Dilemma Over Mikulski Seat

    Mar 10, 2015 | E&E Daily News

    By Josh Kurtz

    As Democrats come out of the woodwork and offer themselves as potential replacements for retiring Sen. Barbara Mikulski (D-Md.), environmental groups are facing a dilemma: What do they do when so many of their friends want the same job?

    Already, Rep. Chris Van Hollen (D), a longtime hero to environmentalists, has announced his intention to seek Mikulski's Senate seat. And Rep. Donna Edwards (D), who first became known in her Maryland neighborhood as a critic of the massive National Harbor development, is expected to announce her candidacy today.

    Several other Democrats with sterling environmental records continue to eye the Senate election -- including every other Democratic member of the Maryland House delegation except for Minority Whip Steny Hoyer (D).

    The presence of so many allies in the same race "is a challenging part of the process" for green groups seeking to make endorsements, said Josh Tulkin, executive director of the Sierra Club's Maryland chapter. But it's not a bad problem to have.

    "At the end of the day, I'd much prefer a race with more environmental champions than less environmental champions or no environmental champions at all," he said. "It's a blessing, what we have here in Maryland."

    The embarrassment of riches is illustrated in the League of Conservation Voters annual congressional scorecard. Van Hollen scored 97 percent from LCV in 2014 and has a 98 percent lifetime score since he entered Congress in 2003. Edwards rang up a 94 last year and has a 96 lifetime score since she joined Congress in 2008.

    The other House members' scores are equally robust: Rep. Elijah Cummings had a 97 score for 2014 and a 94 lifetime rating; Rep. John Delaney scored 91 percent last year and has a 90 percent lifetime score; Rep. Dutch Ruppersberger scored 91 in 2014 and has an 85 lifetime rating; and Rep. John Sarbanes had a 97 percent score in 2014 and a 96 percent lifetime record. All four of these Democrats are still pondering whether to run for Senate in 2016.

    "I think all the other states are very jealous of our delegation," said Karla Raettig, executive director of the Maryland League of Conservation Voters.

    The House members aren't the only Democrats considering whether to enter the Senate race, which was shaken up by Mikulski's surprise announcement last week that she would not seek a record-setting sixth term (Greenwire, March 2). Other potential Democratic candidates for the Senate seat include Baltimore Mayor Stephanie Rawlings-Blake, U.S. Labor Secretary Thomas Perez, former state Delegate Heather Mizeur, former Lt. Gov. Kathleen Kennedy Townsend and Baltimore attorney Susan Burke, who is best known for representing military sexual assault victims.

    Most of these potential contenders are allies of the environmental movement, as well.

    The Sierra Club endorsed Mizeur during her unsuccessful bid for the Democratic gubernatorial nomination last year. Environmental groups got behind Townsend when she was the Democratic nominee for governor in 2002. Environmentalists were enthusiastic about Perez when he served on the Montgomery County Council and then ran for state attorney general in 2006. And during her annual State of the City speech yesterday, which focused mainly on economic development initiatives, Rawlings-Blake took the time to promote Baltimore's "sustainable transportation efforts," including the establishment of a Bike Advisory Commission to help expand the city's bike route network and her support for a proposed light rail line through the city.

    Until the field solidifies, political analysts are mostly focusing on the potential strengths and weaknesses of Van Hollen and Edwards. While both have solidly liberal records, Edwards has long been a favorite of activist progressive organizations, and in recent days, the groups Democracy for America, which grew out of Howard Dean's 2004 presidential campaign, and the Progressive Change Campaign Committee have attempted to draft Edwards into the Senate race.

    Edwards was elected as an insurgent in 2008, ousting then-Rep. Albert Wynn (D-Md.) in the Democratic primary, charging that he was too close to real estate developers and other business interests. Though she had worked for national nonprofit groups, Edwards became prominent in her local community as a vocal and effective critic of the National Harbor development along the Potomac River.

    Van Hollen spent 12 years in the Maryland Legislature before being elected to Congress in 2002, defeating a Kennedy family scion and a Republican incumbent to win his House seat. He was a favorite of environmental groups in the Legislature, sponsoring legislation to protect the Chesapeake Bay, promote clean energy and provide tax breaks for owners of hybrid cars.

    Both Van Hollen and Edwards have continued their environmental work in Congress. Van Hollen recently became co-chairman of the Bicameral Climate Task Force, and Edwards regularly does battle with Republican climate skeptics from her perch on the House Science, Space and Technology Committee. Van Hollen is also the ranking member of the House Budget Committee and a trusted lieutenant to Minority Leader Nancy Pelosi (D-Calif.).

    "Both have demonstrated leadership [on environmental matters] and a willingness to speak out on issues, even as Van Hollen's in leadership," Tulkin said.

    So how will the environmental groups choose?

    Because this is a federal race, endorsements will ultimately be doled out by the national Sierra Club and the national LCV. But Maryland LCV will play a consulting role in the group's deliberations, while the Sierra Club chapter will prepare a questionnaire and interview candidates before forwarding an endorsement recommendation to the national office. It is conceivable that environmental groups will decide to keep their powder dry in a primary because they have too many allies running.

    But while environmentalists are applauding the caliber of Democratic candidates, they do not want to be too exuberant or automatically assume that one environmental stalwart will replace another. After all, Maryland just elected a Republican governor last fall in a major upset.

    "The last election cycle showed we can't take anything for granted in Maryland," Raettig said.

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21. Los Angeles Air District Tightens Limits On Lead Emissions From Battery Recycling

    Mar 10, 2015 | BNA Daily Environment Report

    By Carolyn Whetzel

    Southern California air quality officials have adopted stricter lead emissions limits for the two battery recycling plants operating in Los Angeles County.

    Approved by the South Coast Air Quality Management District governing board at a March 6 public hearing in Long Beach, the new standards mark the latest effort to reduce exposure to lead and arsenic in the communities surrounding the Exide Technologies Inc. facility in Vernon and the Quemetco Inc. plant in the City of Industry.

    The 11–1 vote revised the SCAQMD's Rule 1420.1, lowering the total mass lead emission rate, also called the lead point source emission rate, for each of the facilities from 0.045 pound per hour to 0.023 lb/hr, beginning Jan. 1, 2016.

    The amended rule also will lower the ambient concentration limit for lead from 0.150 microgram per cubic meter to 0.110 µg/m3 (averaged over 30 days), effective Jan. 1, 2016, and to 0.100 µg/m3, effective Jan. 1, 2017.

    Revised Rule 1420.1 now requires daily monitoring for lead and arsenic daily, instead of every three days, and additional testing and reporting requirements.

    Environmental justice advocates and citizen groups testifying at the public hearing pressed the SCAQMD board for stricter lead emissions limits, especially at the Exide plant, where elevated levels of lead have been found in the soil at nearby homes.

    Lead is a potential neurotoxin, especially for children. Studies have indicated there is no safe level of exposure.

    Companies Can Comply

    Exide and Quemetco officials said they would be able to comply with the new standards.

    In its written comments, Quemetco urged the SCAQMD board to lower the lead emission limit to 0.03 lb/hr, a level its plant currently meets but that Exide does not.

    SCAQMD Executive Officer Barry Wallerstein told the governing board that Exide is installing air pollution control equipment to reduce arsenic and 1,3-butadiene emissions, which is also expected to also reduce lead emissions. The plan is for the staff to return to the board within six with a proposal for the 0.03 lb/hour limit, Wallerstein said.

    In January 2014, the SCAQMD adopted stricter limits for arsenic emissions at the two plants, which operate the only lead-acid battery smelters west of the Rocky Mountains (10 DEN A-7, 1/15/14).

    Reducing Arsenic Emissions

    Unable to meet the tougher arsenic standards, Exide's plant has been closed while it installs new equipment. Exide has indicated it may reopen in April or May, Wallerstein said.

    Meanwhile, the state Department of Toxic Substances Control has taken various enforcement actions, accusing Exide of violating hazardous waste laws. The company has been operating on a temporary hazardous waste permit for years.

    Exide has been working with state regulations to obtain a permanent permit, clean up lead-tainted soil in nearby neighborhoods and bring the facility into compliance.

    Citizen and environmental organizations want the Exide plant closed.

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22. Agency Shakes Up Coal Research Staff

    Mar 9, 2015 | E&E News PM

    By Manuel Quiñones

    The Department of Energy's Office of Fossil Energy has tapped Duke Energy Corp. executive David Mohler to become the administration's new point person for coal research, the agency said today.

    Mohler, most recently Duke senior vice president and chief technology officer, will officially become deputy assistant secretary for clean coal and carbon management.

    "David brings a depth of knowledge to the Department," said Chris Smith, DOE's assistant secretary for fossil energy. "From managing power plants to leading technology development as a senior executive, his experience and expertise is impressive."

    Mohler will replace Julio Friedmann, who will move up to the post of principal deputy assistant secretary for fossil energy under Smith.

    DOE said Mohler helped launch Duke's technology office in 2006. From 1997 to 2006, he was strategic planning vice president for Ohio-based Cinergy Corp.

    Mohler, DOE noted, has been involved with the Carnegie Mellon Electric Utility Industry Center and the Electric Power Research Institute's Research Advisory Committee, and also has been on the board of the Asia Clean Energy Innovation Initiative.

    Bringing him in from industry could help DOE defuse some criticism from coal advocates and allies on Capitol Hill, who have accused the administration of not being truly committed to coal research.

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23. Democrat Offers Bills Addressing Climate Change Risks

    Mar 10, 2015 | BNA Daily Environment Report

    Bills reintroduced in the House by Rep. Lois Capps (D-Calif.) would assist coastal communities, water utilities and public heath officials in dealing with droughts, floods, and risks posed by changes in climate. The Coastal State Climate Change Planning Act (H.R. 1276) would help coastal states plan and implement climate change adaptation projects to prepare for sea level rise as well as other impacts. The Climate Change Health Protection and Promotion Act (H.R. 1275) would provide public health officials with the resources to track and prepare for public health challenges that are expected to come with climate change, like increased rates of asthma and other respiratory illnesses, vector-borne diseases, life-threatening temperatures, and food shortages. The Water Infrastructure Resiliency and Sustainability Act (H.R. 1278) would help water and wastewater utilities adapt their infrastructure to the impacts of hydrological changes wrought by climate change. The Association of Metropolitan Water Agencies supports H.R. 1278. Capps introduced the three bills on March 4. H.R. 1276 has been directed to the House Natural Resources Committee, , H.R. 1275 was directed to the House Energy and Commerce Committee and H.R. 1278 has been sent to the House Transportation and Infrastructure Committee.

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24. Report: Florida Officials Told Not to Use Terms ‘Climate Change,’ ‘Global Warming’

    Mar 10, 2015 | BNA Daily Environment Report

    By David Knowles

    Florida's government may have figured out a way to beat climate change: Ignore it.

    A report by the Florida Center for Investigative Reporting published March 8 details the claims by employees of the Florida Department of Environmental Protection, who say that they were ordered to refrain from using the terms “climate change” and “global warming” in official communications.

    “We were told not to use the terms ‘climate change,’ ‘global warming’ or ‘sustainability,’ ” Christopher Byrd, an attorney with the DEP's Office of General Counsel in Tallahassee from 2008 to 2013, told FCIR. “That message was communicated to me and my colleagues by our superiors in the Office of General Counsel.”

    The unwritten policy went into effect shortly after Fla. Gov. Rick Scott (R), a global warming skeptic, took office. With the publication of FCIR's report, several climate change believers took to Twitter to express their dismay.

    Similar Action in North Carolina?

    While less formal, the Florida policy is reminiscent of a 2012 law passed by lawmakers in North Carolina that prohibits the state from basing coastal policies on scientific predictions regarding sea-level rise (148 DEN A-7, 8/2/12). Scientists have warned that, like much of Florida's coastline, North Carolina's outer banks are at particular risk from climate change.

    With Congress voting on amendments to the Keystone XL Pipeline bill—and Sen. James Inhofe's (R-Okla.) tossing of a snowball on the Senate floor the week of March 2 have shown—the semantic aspects of the debate over global warming often serve to underscore the level of mistrust between the opposing sides of the issue.

    Florida's DEP is, in part, charged with planning for how to try and combat what could be catastrophic sea-level rise due to the very thing that its employees say they are not supposed to mention by name.

    “We were dealing with the effects and economic impact of climate change, and yet we can't reference it,” one former employee told FCIR.

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25. Florida’s Gov. Rick Scott Denies Muzzling Global Warming Talk

    Mar 9, 2015 | Politico

    By Marc Caputo

    Florida Gov. Rick Scott on Monday denied an investigative report that his environmental protection agency muzzled workers from talking about global warming – but he also made clear that he didn’t want to talk about the issue at all.

    The controversy erupted Sunday after the nonprofit Florida Center for Investigative Reporting published an account quoting former Florida Department of Environmental Protection staffers who said agency leaders under Scott pressured them to not mention “global warming,” “climate change” or “sea level rise.”

    The report sent shockwaves through Florida’s environmental community, disappointed some fellow Republicans in South Florida and led climate scientists to bemoan the “Orwellian” political environment in the state, a low-lying peninsula that’s acutely threatened by rising seas.

    “First off, it’s not true,” Scott told reporters Monday, declining to elaborate when asked about the report.

    “Let’s look at what we’ve accomplished: We’ve had significant investments in beach re-nourishment, with flood mitigation,” Scott said as he changed the subject to other environmental projects, a talking point from his 2014 reelection campaign.

    Scott wouldn’t say if the agency plans for or believes in global warming, but said he’s a problem-solver. Asked if he thought global warming was a problem, Scott refused to say.

    When he first ran for office in 2010, Scott said “I have not been convinced” about man-made causes of global warming. He said he needed “something more convincing than what I’ve read” to change his mind. The first-term GOP governor stopped talking about global warming during his reelection campaign against Democrat Charlie Crist, who was aided by a nearly $18 million effort from billionaire investor-turned-climate-change activist Tom Steyer’s NextGen Climate Action Florida group.

    “I’m not a scientist,” Scott, echoing other Republicans, repeatedly said in 2014 when asked about climate change.

    Regardless of whether an overt gag order was issued or not, the state’s attitude about the seriousness of global warming changed under Scott. The year before he was elected, the Florida Oceans and Coastal Council’s Annual Research Plan referenced climate change 15 times and had a section labelled “Climate Change.” Last year, however, the plan had only one mention of “climate change” that “must have slipped by the censors,” sources told the Florida Center for Investigative Reporting.

    The allegations of politically motivated changes at the state level recall a national 2010 report from the Union of Concerned Scientists that rapped former President George W. Bush’s administration for “widespread political interference in the work of federal climate scientists, edits to official scientific documents and a general attempt to foster uncertainty about robust scientific conclusions.”

    Christopher Byrd, one of the former DEP lawyers who said the agency muzzled staff about climate change and global warming, says he was surprised by the amount of attention the new report generated.

    “No one should be shocked by this because this is Rick Scott we’re talking about,” Byrd told POLITICO. Byrd, who said he was ultimately fired from DEP because he “didn’t fit the direction” of the agency, said a deputy general counsel told agency lawyers that “Global warming, climate change…. Those words are no longer to be used in the office if you know what’s good for you.”

    Byrd and other former DEP staffers gave similar accounts to the Florida Center for Investigative Reporting, where one said that she was told “sea level rise” should be called “nuisance flooding.”

    The DEP and governor’s office deny this was a policy put forth by Scott or the administration.

    The state’s position on global warming has particular salience in low-lying, heavily populated South Florida, where county governments have started discussing the issue and are planning to grapple with rising seas due to climate change.

    “Miami-Dade County has been talking about this seriously since 2006. So that’s a close decade,” said Raquel Regalado, a Republican county school member who plans to run for county mayor. “We have an action plan and partnered with Palm Beach, Broward and Monroe counties – so the idea that the state at some level is censoring and that somehow this goes away is absurd.”

    Until this report, climate change as a political issue had effectively gone away for Scott after the 2014 elections. Leading up to the race, a group of climate scientists and professors repeatedly petitioned the governor to meet with him and explain the science behind climate change.

    David Hastings, a professor of Marine Science & Chemistry at Eckerd College in Florida, and others finally met with the governor. But Scott took up nearly half of the time on small talk and didn’t seem to listen to what he was told, they said.

    Hastings said the new report about DEP and climate change “lit up my social media. It’s incredible. My first thought this was out of the Onion, a satirical website…. It’s very Orwellian, a totalitarian or authoritarian practice. It’s out of ‘1984.’ We’re the state most impacted by climate change. If we can’t even say that word, where are we regarding policy? We’re completely adrift.”

    Scott wouldn’t discuss climate change policy at all with reporters on Monday as he changed the focus to discuss Everglades restoration projects, the settling of an Everglades restoration lawsuit, beach re-nourishment programs and initiatives to protect Florida’s freshwater springs.

    “What we’re doing is we’re solving problems,” Scott said, a variant of a line he said three times.

    A reporter asked if global warming is a problem.

    “Here’s what we’re dealing with: We’re dealing with the problems of Florida,” Scott replied. “We’re dealing with beach re-nourishment, flood mitigation, dealing with making sure we push water south [through the Everglades], we have the right storage things for the Everglades. We’re dealing with all these things.”

    Asked again about whether his agency muzzled workers, Scott again denied it.

    “No. That’s not true,” he said. “As you know, I’m focused on solutions.”
    
    

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Transportation News

26. Fiery Rail Spills Puts Safety Focus on Cutting Oil’s Volatility

    Mar 9, 2015 | Bloomberg

    By Jim Snyder

    A series of rail accidents involving oil tank cars that exceed federal safety standards yet still burst into flames after derailing is shifting the focus from the container to the crude -- and whether it’s too explosive to be carried by train.

    A wreck over the weekend in Canada brought the total to four in less than a month in the U.S. and Canada. All involved relatively modern tank cars known as the CPC-1232, which are designed to be sturdier than a model that regulators have said are prone to rupture.

    Safety advocates say the spills show that a proposed rule now under review at the White House to require even tougher tank cars is necessary, but that it may not go far enough.

    “The problem is in the product,” said Phil Steck, a New York state assemblyman whose district near Albany is bisected by oil trains.

    A boom in U.S. oil production has increased the amount of crude moved by rail 5,000 percent since 2009. But accidents, including a 2013 derailment and explosion of oil from North Dakota that killed 47 people in Lac-Megantic, Quebec, has raised fears in the communities through which the trains travel.

    On Saturday, a Canadian National Railway Co. train carrying crude oil from Alberta derailed and caught fire in northern Ontario, close to the same rural stop a CN train derailed on Feb. 14. In the U.S., a BNSF Railway Co. train derailed and caught fire near Galena, Illinois, on March 5. That followed a Feb. 16 accident of a CSX Corp. train traveling in West Virginia that sent a massive fireball into the sky and forced the evacuation of nearby homes. Siphoning Elements

    Steck said he wants the U.S. to require oil producers to siphon off the more explosive elements before the crude is loaded for shipping, which could raise costs by $2 a barrel.

    Steck in a letter last month urged the U.S. Transportation Department to compel use of a stabilization tower to remove so-called light ends, including propane and butane, that make oil more explosive.

    Last week, the effort got the support of Charles Schumer of New York, the third-ranking Democrat in the U.S. Senate.

    Stabilization is commonly done in Texas but not North Dakota, originating point for much of the oil hauled by trains. Two of the derailments in the past month involved crude from North Dakota’s Bakken formation. The latest was hauling oil from Alberta, Canada. Separation Costs

    Alison Ritter, a spokeswoman for the North Dakota Industrial Commission, which regulates the oil industry, said it was impractical to require companies to build the 30-foot towers to separate the light ends from the oil.

    In Texas, gases that are removed can be easily shipped to nearby petrochemical companies. That option doesn’t exist in North Dakota, she said.

    North Dakota has set a standard that takes effect in April requiring that oil loaded onto rail cars not exceed a vapor pressure of 13.7 pounds per square inch, a measure of its volatility.

    North Dakota lets companies use temperature and pressure to reduce oil’s explosiveness through a process called conditioning. It’s a less expensive option than stabilization and not as complete. A North Dakota government estimate said stabilization costs $2 a barrel, while conditioning adds about 10 cents. West Virginia

    The oil carried by a train that derailed in West Virginia wouldn’t have met the North Dakota standard. Tests by Intertek Group Plc said it was rated at 13.9 pounds per square inch.

    Schumer in a letter to the departments of Energy and Transportation said that the oil hauled in Lac-Megantic would have met North Dakota’s 13.7 standard. That train, which was left unattended and rolled uncontrolled into town, was speeding at more than 60 miles per hour.

    But Schumer said the accident shows North Dakota hasn’t done enough to stabilize the Bakken crude oil.

    The U.S. Transportation Department’s proposed rail safety rule would require tank cars to have thicker steel shells, new thermal protections and tougher valves to prevent punctures and spills.

    The White House’s Office of Management and Budget is now reviewing the rule, which is expected to be released in May.

    It doesn’t set a volatility standard for the oil.

    Sarah Feinberg, the acting administrator of the Federal Railroad Administration, which regulates trains, said the administration was reviewing whether additional steps are necessary. ‘All Options’

    “We continue to look at all options available to us for improving the safety of the transport of crude oil, both in the short and long term,” Feinberg said in an e-mail. “Everything is on the table.”

    The Energy Department said it’s in the “early stages” of a study of oil volatility and will share the results with the Transportation Department.

    Tests directed last year by the Pipeline and Hazardous Materials Safety Administration, a division of the Transportation Department, found Bakken crude has a higher degree of volatility than most other U.S. crudes.

    Last week, executives from refiners met with officials at the federal budget office and urged that the rule put a greater focus on preventing derailments.

    Charles Drevna, president of the American Fuel & Petrochemical Manufacturers, a Washington-based group that represents refiners, said the safety benefits offered by oil stabilization don’t justify the costs. The crude is still flammable and can catch fire and explode under the forces and conditions of an train derailment, he said.

    “It’s not going to matter a hill of beans if you can’t keep the trains on the tracks,” Drevna said in an interview.

    Railroads have agreed to slow down oil trains in populated areas, and say they’ve increased the inspections of their tracks to reduce accidents.

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