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(ACC Mentioned) Guidance on Data Required for Antimicrobials Coming From EPA Following Legal Settlement
Mar 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Draft guidance antimicrobial manufacturers can use to help determine what toxicity, biodegradation or other data the Environmental Protection Agency will require to register their products will be issued by July 2, a senior EPA antimicrobials official said March 11. -
(ACC Mentioned) Sen. Udall Faces Scrutiny Over Sweeping Chemical Bill
Mar 11, 2015 | AP (in the Washington Post)
U.S. Sen. Tom Udall and a Senate colleague have introduced a bill that would overhaul 40-year-old federal regulations that govern the nation’s chemical industry. The bill submitted Tuesday and co-sponsored by Udall, a New Mexico Democrat, and Sen. David Vitter, R-Louisiana, would require the Environmental Protection Agency... -
Erin Brockovich Denounces Latest Chemical Law Reform Bill
Mar 11, 2015 | The Hill - Regulation
By Lydia Wheeler
Consumer advocate Erin Brockovich is calling legislation introduced Tuesday to reform the nation’s toxic chemical laws an industry bill. “This bill does not make chemicals safer,” she said. “I wouldn’t even consider it in my opinion a [Toxic Chemicals Control Act, or TSCA] bill. It’s an industry bill.” -
Brockovich, Enviro Group Compare Udall-Vitter Bill to KXL Pipeline
Mar 12, 2015 | E&E Daily News
By Sam Pearson
A famed California environmentalist and the head of the Environmental Working Group vowed yesterday to oppose a bipartisan chemical safety bill if changes are not made -- even if it means scuttling the plan like environmental groups' recent success against a GOP plan to fast-track approval of the Keystone XL oil pipeline. -
California Biomonitoring Science Panel to Meet
Mar 11, 2015 | Chemical Watch
Biomonitoring California's Science Guidance Panel is to meet on 13 March. Topics for discussion include an update on its biomonitoring programme and the results of a study to reduce teenage exposure to phthalates through personal care products. -
Echa and Denmark to Prepare Phthalates Restriction
Mar 11, 2015 | Chemical Watch
By Geraint Roberts
Echa and the Danish EPA are to prepare an Annex XV dossier proposing that a REACH restriction should be introduced for the four phthalates DIBP, DBP, BBP and DEHP in articles. According to the notice, recently added to Echa’s registry of intentions, the expected date of submission is 8 January 2016. It says that depending “on the outcome... -
Best Remedy for Ailing CSB Is Merger With NTSB, Former Board Members Say
| BNA Daily Environment Report
By Robert Iafolla
Even as the head of the Chemical Safety and Hazard Investigation Board faces a bipartisan call for his ouster, former board members have made a more radical recommendation—eliminate the agency as an independent, stand-alone entity and fold it into the National Transportation Safety Board. -
PHMSA Alters Pipeline Inspection, Survey Rules, Labels Ethanol as Hazardous Liquid
Mar 12, 2015 | BNA Daily Environment Report
By Rachel Leven
Individuals who helped to construct a transmission line, main or pipeline system will no longer be allowed to inspect their own work, under a Pipeline and Hazardous Materials Safety Administration final rule published in the Federal Register March 11 (80 FR 12762). Type B gathering line operators also will be required to conduct leak surveys... -
Houston Ship Channel Chemical-Spill Cleanup to Take Several Days
Mar 10, 2015 | AP (in the Wall Street Journal)
Efforts to clean up one of the nation’s busiest seaports after a collision between two vessels on the Houston Ship Channel spilled a flammable chemical were expected to take at least several days, U.S. Coast Guard officials said Tuesday. A 4-mile to 8-mile stretch of the ship channel remained closed as crews worked to deal... -
(ACC Mentioned) Portman, Shaheen Reintroduce Efficiency Package
Mar 11, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Sens. Rob Portman and Jeanne Shaheen today released the new iteration of their long-delayed energy efficiency legislation. The 139-page Energy Savings and Industrial Competitiveness Act of 2015 is similar to the version from last year, including 10 bipartisan amendments. -
Fracking's Impact on Water ‘Needs to Be Considered,' Former DOJ Official Says
Mar 12, 2015 | BNA Daily Environment Report
By Andrea Vittorio
ormer U.S. Assistant Attorney General Ignacia Moreno said March 11 that the impact of hydraulic fracturing, or fracking, on water is something that “needs to be considered,” and there are laws that can help address negative effects. Moreno, who led the Justice Department's environmental division from 2009... -
In New York Fracking Fight, Peer-Review Trashed By Far-Left Politics
Mar 12, 2015 | The Hill - Congress Blog
By Simon Lomax
National anti-fracking groups are urging energy producing states, including Colorado and California, to impose oil and gas production bans after New York Gov. Andrew Cuomo (D) blocked hydraulic fracturing for shale gas in the Empire State. A recent column by the Center for Health, Environment and Justice went further and demanded President... -
Plans To Explore For Oil Offshore Worry East Coast Residents
Mar 12, 2015 | NPR
By Sarah McCammon
As the Obama administration opens the door to offshore drilling, the oil industry is promising more jobs and less reliance on foreign oil. Some people who live along the Eastern Seaboard are saying, "no thanks." Coastal towns and cities in several states are formally opposing offshore drilling and oil exploration. -
Revenue From Crude Oil Exports Is Considered to Pay for Highway Fund
Mar 12, 2015 | BNA Daily Environment Report
By Stephanie Beasley and Ari Natter
Congressional Republicans are considering allowing crude oil exports and increasing energy production on federal lands to raise funding for surface transportation programs. Senate Majority Whip John Cornyn (R-Texas), said the idea of allowing crude oil exports, which are currently prohibited by law, to provide additional revenue to raise money ... -
Repeal the Decades-Old Oil Export Ban to Help Energy Renaissance
Mar 12, 2015 | The Hill - Congress Blog
By George Baker
The ongoing shale oil renaissance and the United States’ abundant natural resources has transformed our energy landscape, allowing American consumers access to affordable fuel supplies and spurring significant investment and job growth across our economy. But in order for this renaissance to continue, it is critical that lawmakers... -
GOP Energy Plan Needs to Go a Step Further, Include Energy Exports
Mar 12, 2015 | Roll Call
By George David Banks
Upon releasing their comprehensive energy policy package last month, House Energy and Commerce Committee Fred Upton, R-Mich., and Energy and Power Subcommittee Chairman Edward Whitfield, R-Ky., noted, “Our energy realities have changed dramatically — we’ve gone from bust to boom practically overnight. Today’s energy policies... -
EPA Head Unbowed on Plans to Finalize Power Plant Carbon Rules This Summer
Mar 12, 2015 | BNA Daily Environment Report
By Dean Scott
The head of the Environmental Protection Agency said March 11 she remains unbowed in the face of attacks on the EPA's power plant carbon pollution limits—including Senate Majority Leader Mitch McConnell's recent call for states to ignore them. In a speech to the Council on Foreign Relations, EPA Administrator Gina McCarthy... -
Some States Say They Lack Time to Pass Legislation Necessary for Clean Power Plan
Mar 12, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's proposed Clean Power Plan may not give states sufficient time to pass legislation necessary to implement the proposed carbon dioxide emissions reductions, some states told a Senate committee. State regulators told the Senate Environment and Public Works Committee... -
EPA Chief Hits Back at States That 'Just Say No' to Carbon Rule
Mar 11, 2015 | Reuters
By Valerie Volcovici
The head of the Environmental Protection Agency (EPA) on Wednesday warned opponents that the agency will enforce regulations to slash carbon emissions from power plants even if states choose not to cooperate. EPA Administrator Gina McCarthy hit back at lawmakers who have called on state officials to ignore federal... -
CARB Chief Nichols Talks Power Plan Changes, 'Just Say No' Compliance Option
Mar 12, 2015 | E&E Daily News
What changes should U.S. EPA make to its Clean Power Plan proposal to add clarity and flexibility on multi-state and regional program options? During today's OnPoint, Mary Nichols, chairwoman of the California Air Resources Board, discusses expected changes to the power plan as the agency prepares its final proposal. -
OMB Reviews Rule on State Control Of Excess Startup, Shutdown Emissions
Mar 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The White House Office of Management and Budget is reviewing a final rule from the Environmental Protection Agency that would require states to alter their plans to control excess pollution emissions from sources during times of startup, shutdown and equipment malfunction. -
Senate Efficiency Bill May Be Incorporated Into Broader Legislation, Murkowski Says
Mar 12, 2015 | BNA Daily Environment Report
By Ari Natter
Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.), introduced March 11 energy efficiency legislation for a fourth time, but their hope for the bill to be considered as standalone legislation may not be in the cards. “It's all about timing,” Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources... -
Sens. Portman, Shaheen Renew Energy Efficiency Push
Mar 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Two senators are putting a renewed effort into their years-long push to establish a cohesive, national energy efficiency policy through legislation. Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) said Wednesday that they’d the latest version of their energy efficiency bill Wednesday, saying it would improve the efficiency ... -
Resisting McConnell, McCarthy Warns States To Ready For ESPS Adoption
Mar 11, 2015 | InsideEPA
By Stuart Parker
EPA Administrator Gina McCarthy is stepping up her opposition to calls by Senate Majority Leader Mitch McConnell (R-KY) for states to withhold their plans for complying with the agency's greenhouse gas (GHG) standards for existing power plants, saying the agency will issue the rule this summer and states should not “put their heads in the sand.” -
GOP Highlights State Objections to EPA Climate Rule
Mar 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Senate Republicans used a Wednesday hearing on the Environmental Protection Agency’s (EPA) landmark climate rule to highlight the objections from states that oppose the rule.The GOP brought in officials from Indiana, Wyoming and Wisconsin — each of which has Republican governors and Republican majorities in both legislative chambers... -
House GOP Seeks To Codify EPA's Coal Ash Rule With State Enforcement
Mar 11, 2015 | InsideEPA
By David LaRoss
House Republicans are floating a draft bill that would largely codify EPA's final coal ash disposal rule that regulates the material as solid rather than hazardous waste, but the legislation would give states primary authority to enforce waste disposal site standards and prohibit the agency from ever regulating ash as hazardous waste in the future. -
House Panel Floats Draft Legislation
Mar 12, 2015 | E&E Daily News
By Manuel Quiñones
House Energy and Commerce Committee Republicans are circulating new draft legislation to regulate the disposal of coal combustion waste, this time taking into account U.S. EPA's new rule. The language, much like previous versions of the bill, would create a state-enforced permitting program for coal ash... -
Court Rejects Bid Challenging EPA Approval of Clean Air Act Penalty Alternatives
Mar 12, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
A federal appeals court rejected a move by environmental advocates to limit the Environmental Protection Agency's approval of alternatives to the penalties required under Section 185 of the Clean Air Act when areas miss their deadlines to attain the federal standard for ground-level ozone ... -
See No Climate, Hear No Climate, Speak No Climate...Here We Go Again?
Mar 11, 2015 | Environmental Defense Fund
By Eric Pooley
When news broke this week alleging that officials working for Gov. Rick Scott of Florida – a state that faces devastating impacts from climate change, such as being partially submerged – had unofficially banned use of the terms "climate change" and "global warming" from state documents, I had to check my calendar to see what... -
(ACC Mentioned) Anticipating PHMSA's Crude by Rail Rule
Mar 11, 2015 | JD Supra Business Advisor
The Pipeline and Hazardous Materials Safety Administration's much-anticipated crude by rail rule will address over 3,000 comments, spanning a wide range of public opinion on crude by rail safety. PHMSA must address vast differences of opinion on complex issues, such as the timeline for implementing new DOT-111 tank car standards... -
Phaseout of Older Crude-by-Rail Cars Feasible in Five to Seven Years, Makers Say
Mar 12, 2015 | BNA Daily Environment Report
By Rachel Leven
It is achievable and beneficial to phase out older tank cars from flammable liquids transport service within five to seven years, according to documents provided to the White House in a recent meeting with rail tank car manufacturers. The meeting that was requested by the Greenbrier Cos. took place March 4, although related records... -
Dangerous Trains, Aging Rails
Mar 12, 2015 | The New York Times - Op-Ed
By Marcus Stern
A CSX freight train ran off the rails last month in rural Mount Carbon, W.Va. One after another, exploding rail cars sent hellish fireballs hundreds of feet into the clear winter sky. Gov. Earl Ray Tomblin declared a state of emergency, and the fires burned for several days. The Feb. 16 accident was one of a series of recent fiery derailments... -
Crude Oil Train Shipments Dwindle in California, For Now
Mar 11, 2015 | The Sacramento Bee
By Tony Bizjak
A year ago, California officials nervously braced for an influx of milelong trains carrying volatile crude oil to refineries in the Valley and on the coast – trains similar to the one that exploded two years ago in Canada, killing 47 people. The trains never arrived. Although tank cars full of oil now roll daily through cities in the Midwest and East...
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Mar 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Draft guidance antimicrobial manufacturers can use to help determine what toxicity, biodegradation or other data the Environmental Protection Agency will require to register their products will be issued by July 2, a senior EPA antimicrobials official said March 11.
The guidance, officially called the “use site index,” will describe how divergent antimicrobial products fit into one or more of 12 antimicrobial use categories the EPA established under a 2013 data requirements rule and, therefore, the data the agency would require, Pat Jennings, a senior environmental engineer in the agency's Antimicrobials Division, said during the 11th Antimicrobial Workshop organized by the American Chemistry Council, the Consumer Specialty Products Association and ISSA—The Worldwide Cleaning Industry Association.
Comment on the draft index will be accepted for 30 days, and final guidance will be published by Feb. 1, 2016, Jennings said.
The deadlines are part of a legal settlement the agency announced March 9 in a case where the American Chemistry Council challenged the antimicrobials data requirements rule, arguing its requirements weren't clear enough (Am. Chemistry Council v. EPA, D.C. Cir., No. 13-01207, settlement agreement signed, 3/2/15; 47 DEN A-6, 3/11/15).
In addition to describing guidance the EPA's antimicrobials division will issue, Jennings gave an overview of the May 8, 2013, final rule that revised data requirements for antimicrobial pesticide products (78 Fed. Reg. 26,935;.
12 Use Patterns Listed in Rule
The 12 use patterns listed in the EPA's final rule are:
• agricultural premises and equipment, such as antimicrobials used to clean equipment in dairies;
• food-handling/storage establishments, premises and equipment, such as antimicrobials used to sanitize food packaging equipment;
• commercial, institutional and industrial premises and equipment, such as heating, ventilation and air conditioning systems;
• residential and public access premises, such as countertops;
• medical premises and equipment;
• human drinking water systems;
• materials preservatives, such as antimicrobials designed to keep paint free of bacteria;
• industrial processes and water systems, such as antimicrobials used to kill microbes, algae or fungi in cooling water systems;
• antifoulant paints and coatings;
• wood preservatives;
• swimming pools; and
• aquatic areas, such as ornamental ponds.
Other Guidance Coming
The rule listed data requirements, including up to 11 “new” types of toxicity and environmental fate data that the agency could require.
Companies may be required, conditionally required or not required to submit data from all the identified tests depending on factors such as the use of their antimicrobial, Jennings said.
The term “new,” she said, meant that the information had never or rarely been required by the EPA but determined to be of possible need to address issues such as antimicrobials having the potential to kill useful bacteria needed by waste water treatment systems.
The use site index is one of several guidance documents the antimicrobials office plans to issue and webinars it will post, Jennings said.
The antimicrobials division doesn't have a timeline yet for the additional guidance documents or webinars but will prioritize certain key ones, she said.
Guidance Issued on Other Uses
These include guidance on the data needed for antimicrobials used in cooling water systems, as wood or materials preservatives and for antifouling paints.
“You will see a lot about those soon,” Jennings said.
The EPA also will issue an amendment to the 2013 rule clarifying some aspects of its data requirements and making some editorial changes, she said, adding, “There will be no substantive changes.”
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(ACC Mentioned) Sen. Udall Faces Scrutiny Over Sweeping Chemical Bill
Mar 11, 2015 | AP (in the Washington Post)
U.S. Sen. Tom Udall and a Senate colleague have introduced a bill that would overhaul 40-year-old federal regulations that govern the nation’s chemical industry.
The bill submitted Tuesday and co-sponsored by Udall, a New Mexico Democrat, and Sen. David Vitter, R-Louisiana, would require the Environmental Protection Agency to make its assessments about chemical safety solely on risk to public health and the environment.
It also would increase fines on chemical companies that break the law from $25,000 to $37,500 per violation, the Albuquerque Journal reported Wednesday (http://goo.gl/ucyuDY ).
The bill has drawn fire from some environmentalists and Sen. Barbara Boxer of California, the top Democrat on the Senate Environment and Public Works Committee.
Boxer has described the Udall-Vitter bill as a gift to the chemical industry. In a statement, she said legal experts tell her the bill is worse than current law.
She contends the measure would gut the role of states in protecting people and there’s no assurance that asbestos and children’s cancer clusters would be addressed.
“This means there will be fewer protections from the most dangerous chemicals for communities and families,” she said.
Daniel Rosenberg, senior attorney with the Natural Resources Defense Council, echoed Boxer’s concerns. He said the bill blocks state action and contains rollbacks that would clear the way for a lax EPA to deregulate hundreds of chemicals with minimal review.
Udall rejected the criticisms. He said the new legislation is the result of nearly two years of deliberations and negotiations with stakeholders, affected communities and a bipartisan group of lawmakers.
He also said the proposal is tougher than existing law and is needed to protect the public.
“Americans are exposed to a toxic soup of more than 80,000 different chemicals, but we have no idea what the impact of those chemicals is on our bodies — or those of our children,” Udall said in a statement. “Current law has failed to protect Americans from dangerous carcinogens like asbestos, and Congress can’t afford to stand on the sidelines any longer.”
The American Chemical Council — the national trade group for chemical companies such as Dow and DuPont — endorsed the bill Tuesday, as did the national Environment Defense Fund.
The American Chemistry Council was among Udall’s top 20 industry donors last year, according to opensecrets.org, a nonpartisan campaign finance watchdog group funded by the Center for Responsive Politics. The council also ran a television ad in New Mexico on the senator’s behalf.
Udall dismissed criticisms that he had gotten too cozy with the industry.
“Never has a political contribution had an impact on what I do on public policy,” he said.
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Erin Brockovich Denounces Latest Chemical Law Reform Bill
Mar 11, 2015 | The Hill - Regulation
By Lydia Wheeler
Consumer advocate Erin Brockovich is calling legislation introduced Tuesday to reform the nation’s toxic chemical laws an industry bill.
“This bill does not make chemicals safer,” she said. “I wouldn’t even consider it in my opinion a [Toxic Chemicals Control Act, or TSCA] bill. It’s an industry bill.”
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) unveiled the Frank R. Lautenberg Chemical Safety for the 21st Century Act on Tuesday. It’s the latest push to reform the TSCA of 1976, which is widely considered broken and unenforceable.
But in a press call led by the Environmental Working Group (EWG) Wednesday, Brockovich said the bill would take away states’ rights in regulating harmful chemicals like asbestos.
“If we take away states rights and dump this back on the EPA, which is already overburdened, understaffed and without state funds, to me that’s insanity,” she said.
Brockovich is best know for building the case against the California-based Pacific Gas and Electric Co. in 1993. Despite a lack of formal education, she exposed the company for leaking toxic Chromium 6 into the ground water and poisoning residents in the town of Hinkley. Julia Roberts won an Oscar playing Brockovich in the 2000 movie.
Now Brockovich is now an advocate for environmental issues.
Though sponsors of the TSCA refrom bill say it will balance state and federal regulations, EWG says the wording of the bill differs from what's being presented.
EWG President and Co-founder Ken Cook said the states would be preempted from taking action on any chemical that the EPA deems a high priority and begins to review, a safety assessment, which under the proposed law could take up to seven years. The public, he said, should be "very alarmed."
“With respect to public health, this is keystone on steroids,” he said.
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Brockovich, Enviro Group Compare Udall-Vitter Bill to KXL Pipeline
Mar 12, 2015 | E&E Daily News
By Sam Pearson
A famed California environmentalist and the head of the Environmental Working Group vowed yesterday to oppose a bipartisan chemical safety bill if changes are not made -- even if it means scuttling the plan like environmental groups' recent success against a GOP plan to fast-track approval of the Keystone XL oil pipeline.
"This is Keystone with respect to public health," EWG President Ken Cook said. "This is Keystone on steroids."
Cook said EWG would push President Obama to veto the Udall-Vitter bill, S. 697 or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," should it get that far. The polarized debate over the Keystone XL pipeline resulted in Obama's third veto as president, though the White House is still reviewing whether to approve the project.
Richard Denison, a senior scientist at the Environmental Defense Fund, said the chemicals bill wasn't comparable to the politicized, long-stalled oil pipeline review. Denison called Cook's comment "a rhetorical flourish."
"There's just no way to line the two up and say they're in any way similar," Denison said.
Cook said the bill was unacceptable in its current form, and environmental activist Erin Brockovich, speaking on a media call with EWG, said she was troubled by the restrictions the bill by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) would place on states. Brockovich said she thought it was "insanity" to grant U.S. EPA new responsibilities when the agency was struggling to meet its existing ones.
Still, Cook's opposition reflects the degree of skepticism held in some quarters over the chemical industry's involvement in the debate over modernizing the 39-year-old Toxic Substances Control Act, though with Republicans in control of Congress, legislation opposed by conservatives and key business groups faces dim prospects.
Brockovich, whose fight against hexavalent chromium contamination by Pacific Gas and Electric Co. was dramatized in a 2000 movie, said she thought the Udall-Vitter bill was deeply flawed.
"I wouldn't even consider it, in my opinion, a TSCA bill," Brockovich said. "It is an industry bill, and it is not being protective of the public health and welfare."
Cook said the bill's provisions -- specifically, the safety standard, its prohibition of co-enforcement by states, the pre-emption of state laws and the length of time it would take to issue regulations on high-priority chemicals -- were problematic, though the bill's deadlines have been tightened from earlier versions.
Cook said the bill needed to include the standard of "reasonable certainty of no harm" -- the threshold applied to pesticide manufacturers -- to protect the public from toxic chemicals. That stronger standard gave EPA a powerful tool to remove dangerous pesticides from the market, in a way it can't with other chemicals, Cook said. The Udall-Vitter bill requires the agency to meet a standard that "ensures, without taking into consideration cost or other nonrisk factors, that no unreasonable risk of harm to health or the environment will result from exposure to a chemical substance under the conditions of use," including to "any potentially exposed or susceptible population" identified by EPA.
Subjecting the broader class of chemicals in commerce to that risk standard has been a nonstarter among industry leaders, though Democrats included it in the "Safe Chemicals Act," which the late Sen. Frank Lautenberg (D-N.J.) introduced from 2005 to 2013. Sen. Barbara Boxer (D-Calif.) said this week that a bill she expects to introduce very soon is likely to contain those elements (E&ENews PM, March 10).
EWG's position is unrealistic, a Senate aide said, and rested on previous proposals that have failed to become law.
"They're rehashing all the same old stuff that has been around forever," the aide said. "These were ideas from the original Lautenberg bill 10 years ago. They never got anywhere; they never even got a floor vote in the Democrat-controlled Senate. The idea that we can resurrect these ideas and pass a bill with it is just not going to happen."
The safety standard was necessarily stricter for pesticides because chemicals in consumer products are "not designed to kill things in people," the Senate aide said, but still need testing.
The co-enforcement provision would bar states from enacting state laws identical to federal law, and then bringing action against violators in state court -- a common practice under the Clean Air Act and Clean Water Act, but less so under the existing chemicals law.
"I am not sure why the industry has been against that or why the Republicans negotiating this bill are so against that," Denison said, though states would be able to sue violators in federal court instead of using co-enforcement to try cases in state courts.
The co-enforcement ban "has to go," Andy Igrejas, the director of Safer Chemicals, Healthy Families, wrote in a blog post.
"I have not heard anyone offer up a persuasive argument for this weakening of current law," Igrejas wrote. "It's just a blatant attempt to reduce enforcement under the new program."
The Senate aide said it wasn't necessary for states to co-enforce the proposed new rules because TSCA was more akin to a consumer protection law than laws reducing pollutants, where states play an important role monitoring discharges at the ground level. The goal was to provide "a uniform federal system," the aide said.
Allowing co-enforcement was one concern raised by Sen. Tom Carper (D-Del.), a co-sponsor of the bill, in a letter he sent to Udall, Vitter and Sen. James Inhofe (R-Okla.) this week. Carper wrote that allowing states to hold companies to the federal standard "would help give the public confidence that regulatory decisions made under TSCA will be consistently implemented nationwide."
Carper also wrote that he wanted greater public review of EPA decisions to designate a substance as "low priority" to ensure the label was not applied improperly. He also wrote that states needed to be able to take action to protect the public if EPA has determined that a substance is a high priority chemical and may be in violation of the safety standard but has not finalized regulations to prevent exposure to the chemical.
The legislation was "a strong bipartisan bill," Udall said in a statement. "I look forward to the committee process and am confident it can pass the Senate. It will ensure EPA has the authority to protect our kids from dangerous chemicals." Bill subject to change
Though most environmental groups have not endorsed the bill, some left open the possibility that the differences could be resolved -- and gave credit to Senate negotiators for reducing many of the problems in the original "Chemical Safety Improvement Act."
In a letter released by Udall's office, the American Congress of Obstetricians and Gynecologists, the American Society for Reproductive Medicine, March of Dimes, and the Society for Maternal-Fetal Medicine called the legislation "an important effort to put in place a sensible federal framework to assess, evaluate and regulate chemicals with an emphasis on the protection of maternal and child health," though the groups said they weren't prepared yet to endorse the bill.
Though the Natural Resources Defense Council called the bill "worse than current law," the group left open the possibility of fixing the Udall-Vitter plan.
"The bill's failings would be easy to remedy, and we continue to work to get this bill to a point where it would be acceptable," said Daniel Rosenberg, a senior attorney at NRDC, in a statement.
Igrejas wrote that lawmakers "need to at least excise the sketchy bits from the bill and restore states' existing authority under TSCA to bring the Vitter-Udall legislation to the point where it does no harm and maybe some good."
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California Biomonitoring Science Panel to Meet
Mar 11, 2015 | Chemical Watch
Biomonitoring California's Science Guidance Panel is to meet on 13 March. Topics for discussion include an update on its biomonitoring programme and the results of a study to reduce teenage exposure to phthalates through personal care products.
The meeting is accessible by webinar.
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Echa and Denmark to Prepare Phthalates Restriction
Mar 11, 2015 | Chemical Watch
By Geraint Roberts
Echa and the Danish EPA are to prepare an Annex XV dossier proposing that a REACH restriction should be introduced for the four phthalates DIBP, DBP, BBP and DEHP in articles.
According to the notice, recently added to Echa’s registry of intentions, the expected date of submission is 8 January 2016. It says that depending “on the outcome of the assessment the scope of the restriction might be broad, or targeted specifically to articles or article groups that are the main contributors to exposure of the general population.”
Consideration of such a restriction proposal by the agency is required under REACH. Article 69 says that once the sunset date has passed for a substance subject to authorisation – which happened for the four phthalates in February – the agency must consider whether the use of the substance in articles poses any health or environmental risks that are not adequately controlled, and if it decides there are some, it must prepare an Annex XV dossier.
The reason why Echa and Denmark believe restrictions – as opposed to authorisations – may be necessary for the phthalates is that most of the articles containing them have been produced outside the EU. As such, they are unaffected by any authorisations, which only apply to chemicals and articles manufactured in the EU.
The agency notice on phthalates marks the first time that it has been required to prepare a restriction dossier under Article 69. This is because the other substances subject to authorisation are either not used in articles, or have not yet reached their sunset date. However, Echa says it is assessing a number of substances on the authorisation list for possible future restriction proposals.
Four years ago, Denmark submitted a restriction proposal for the four phthalates in articles that are for indoor use, or in articles that come into contact with skin or mucous membranes, on the grounds that they are category 1B reprotoxins. However, it was rejected by the REACH Committee which said that the uses did not pose a risk, and because volume and exposure data showed a rapid decline in their use (CW 15 June 2012). Denmark went ahead with a national ban – only to be forced to withdraw it after the European Commission considered legal action. But last year Denmark submitted a proposal that the four phthalates should be on the candidate list not only because of their reprotoxic properties, but also because they are endocrine disruptors (CW 2 July 2014).
Echa says that since Denmark produced its original restriction proposal, important new data has been published as part of the EU-funded project known as DEMOCOPHES (Consortium to Perform Human Biomonitoring on a European Scale). The project established a common methodology for collecting biomonitoring data from children and mothers in 17 EU member states for various chemicals, including the levels of phthalate metabolites in urine.
The European Council for Plasticisers and Intermediates said that while, in principle, such a restriction would create a level playing field for article manufacturers within and outside Europe, member state enforcement authorities would face "a major challenge", particularly with respect to imported articles from China, India, other Asian countries and Latin America.
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Best Remedy for Ailing CSB Is Merger With NTSB, Former Board Members Say
| BNA Daily Environment Report
By Robert Iafolla
Even as the head of the Chemical Safety and Hazard Investigation Board faces a bipartisan call for his ouster, former board members have made a more radical recommendation—eliminate the agency as an independent, stand-alone entity and fold it into the National Transportation Safety Board.
In written testimony submitted March 4 to the House Committee on Oversight and Government Reform, Bush-era CSB appointees William Wright and William Wark called for the change, alleging that irreparable harm has been inflicted on the board by Chairman Rafael Moure-Eraso and his top lieutenants.
Moure-Eraso and his leadership team have “diminished [the CSB's] reputation and role because of multiple violations of trust and creation of a caustic climate,” Wright said in the testimony.
Wark testified that the “perfidious back-channel dealings” of Moure-Eraso, Managing Director Daniel Horowitz and General Counsel Richard Loeb have “ruined the agency and destroyed morale.”
The former members submitted the testimony as part of the committee's examination of the CSB's management problems.
Former CSB member Beth Rosenberg, an Obama administration appointee who resigned less than a third of the way through her five-year term, recommended that the Government Accountability Office examine the feasibility and impact of moving the CSB to the NTSB.
“The governance issues that plague the agency now have occurred before, which implies a structural flaw that may be best ameliorated by changing the structure,” Rosenberg said in her written testimony.
Former CSB Chairman John Bresland and former board member Gerald Poje submitted written testimony that didn't call for joining the two agencies. The mission of the CSB is to investigate industrial chemical accidents, while the NTSB investigates transportation accidents.
Affected parties began airing concerns about the CSB's lack of productivity and management problems in 2013, and criticism of the agency and its leadership intensified over the next two years. Democrats and Republicans alike excoriated Moure-Eraso at the March 4 hearing of the House Oversight Committee, with several demanding his immediate resignation.
CSB Operations Began in 1998
Congress created the CSB with passage of the Clean Air Act Amendments of 1990, although the agency did not begin operating until 1998. Like the NTSB, the CSB is an independent investigative agency with no enforcement authority. The CSB is roughly one-tenth the size of the NTSB, both in terms of budget and number of employees.
The NTSB's focus is on the public safety implications of transportation incidents. In addition to investigating aviation accidents, the agency has a division that investigates incidents involving railroads, pipelines and transportation of hazardous materials. However, it doesn't presently have expertise in major chemical releases at fixed facilities.
It would be up to Congress to allow NTSB absorption of the CSB. A bill to modify relevant sections of the Clean Air Act and the Independent Safety Board Act could pave the way for the CSB to be subsumed.
Spokesman for the CSB and the NTSB declined to comment on the proposal.
Statutory Differences
A review of the statutes that established the two safety agencies shows a handful of apparent structural differences.
Each agency is led by five board members. But whereas no more than three of the five NTSB members can be from the same political party, the CSB has no such restriction.
The NTSB charter seems to include several features to boost transparency that the CSB lacks. For example, the NTSB's annual reporting requirements include a section requiring the agency to identify which investigations are languishing and to explain why. The NTSB charter also authorizes the head of the GAO to evaluate its management and audit its programs and expenditures.
While a few former board members have advocated eliminating the CSB and folding it into the NTSB, the idea has yet to catch on with some other interested parties.
Agency's Work Defended
“The CSB as an independent agency has done well in the past,” said Shakeel Kadri, executive director of the Center for Chemical Process Safety at the American Institute of Chemical Engineers. “I frankly don't see any reason to dismantle the agency.”
Kadri told Bloomberg BNA March 9 that his group is meeting with the CSB in the near future to rekindle its regular collaboration with the agency. Until about three years ago, the CSB gave biannual briefings to the top process safety officials who sit on the group's technical steering committee, Kadri said. The CSB stopped that practice due to concerns about conflicts of interest, as the process safety group was working on one of the agency's recommendations, Kadri said.
Moreover, Kadri said he hopes the next CSB chairperson will help restore the agency's relationship with the process safety group. The White House announced March 3 its nomination of Vanessa Allen Sutherland, chief counsel at the Pipeline and Hazardous Materials Safety Administration, to head the CSB after Moure-Eraso's five-year term ends in June.
Option Warrants Study
Although the suggestion by two prominent former members to fold the CSB into the NTSB gives weight to the recommendation, it's premature to advocate for that change, said Bill Allmond, vice president of government relations for the Society of Chemical Manufacturers and Affiliates.
However, Allmond said there would be no harm in asking the GAO to study the proposal.
“The NTSB is so much more recognized and respected by stakeholders than the CSB, especially at this point,” Allmond told Bloomberg BNA March 9. “Having the CSB as part of the NTSB would give any future reports immediate credibility.”
Yet it's unclear whether the NTSB has the particular knowledge necessary to investigate chemical incidents at fixed facilities, Allmond said. It could also be confusing for facility operators or communities to have the NTSB, which is well-known for its role investigating transportation incidents, to be heading probes of chemical incidents, Allmond said.
Moreover, the nomination of Sutherland to take over for Moure-Eraso suggests the White House has plans to restore the agency's ability to carry out its mission under its current structure, Allmond said.
‘Sad State of Affairs.'
Jim Frederick, assistant director for safety and health for the United Steelworkers, told Bloomberg BNA March 6 that the union hadn't weighed the implications of moving the CSB under the NTSB.
The union counts on the CSB's work, since many of the incidents it investigates have happened at refineries and other workplaces staffed by its members, Frederick said. In addition, the United Steelworkers played a prominent role in creation of the agency in 1990, he said.
“Just the fact that, 25 years later, there's a discussion about eliminating the CSB as an independent agency is a sad state of affairs,” Frederick said.
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PHMSA Alters Pipeline Inspection, Survey Rules, Labels Ethanol as Hazardous Liquid
Mar 12, 2015 | BNA Daily Environment Report
By Rachel Leven
Individuals who helped to construct a transmission line, main or pipeline system will no longer be allowed to inspect their own work, under a Pipeline and Hazardous Materials Safety Administration final rule published in the Federal Register March 11 (80 FR 12762).
Type B gathering line operators also will be required to conduct leak surveys and repair identified leaks, under the final rule that takes effect Oct. 1. Additionally, ethanol will be regulated as a hazardous liquid for pipeline transport purposes, among several other substantive and editorial changes, the final rule said.
The rulemaking's annual compliance costs will be an estimated $550,000, which will all be related to the leak surveys for Type B gathering lines requirement.
The compliance costs could be less than the estimate, however, because operators will likely identify leaks earlier, leading to less costly repairs later and more gas kept inside the pipeline, it said. This also has the ancillary benefit of reducing methane emissions from pipeline leaks, part of the Obama administration's methane strategy (10 DEN A-1, 1/15/15).
PHMSA promulgated the rule in line with requirements from the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011 (Pub. L. No. 112-90), in response to National Transportation Safety Board recommendations and industry group petitions, the final rule said. PHMSA initially proposed the rule in November 2011 (230 DEN A-5, 11/30/11).
Spills or leaks from pipelines containing hazardous materials can harm the environment, such as wetlands and streams, as well as public health and safety, the final rule said. Harm can arise, in part, due to the risk of resulting fires and explosions from pipeline incidents, the rule said.
Construction Inspections Limited
PHMSA chose to move forward with the most controversial proposal in its rulemaking related to inspections of pipeline infrastructure. Despite disagreement from several key pipeline industry groups, PHMSA moved forward to prohibit individuals from inspecting their own transmission line, main or pipeline system work.
Industry groups such as the American Gas Association expressed a range of concerns related to the proposal, with some concerned that it would be costly and could harm safety efforts.
While PHMSA chose to clarify who is barred from conducting these inspections, the agency said the “commenters overstated the impact of the proposal.”
“PHMSA believes that allowing individuals to inspect their own work defeats, in part, the measure of safety garnered from such inspections,” the final rule said. “PHMSA was not intending to require third party inspections or attempting to prohibit any person from a company to inspect the work of another person from the same company.”
Link Survey Requirement Put in Rule
The new leak survey requirement for Type B gathering line operators also made it into the final rule largely intact.
Much of the industry already conducts these gathering lines surveys, whether or not they are reported to PHMSA. The leak surveys will “help operators detect leaks early and avoid loss of lives, gas and liability exposure,” the rule said.
PHMSA's decision to label ethanol a hazardous liquid, which subjects the fuel to pipeline safety rules, went unopposed in comments.
PHMSA also finalized changes regarding, according to the rule:
• qualifying plastic pipe joiners;
• transportation of pipe;
• calculation of pressure reductions for hazardous liquid pipeline integrity anomalies; and
• filing of offshore pipeline condition reports.
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Houston Ship Channel Chemical-Spill Cleanup to Take Several Days
Mar 10, 2015 | AP (in the Wall Street Journal)
Efforts to clean up one of the nation’s busiest seaports after a collision between two vessels on the Houston Ship Channel spilled a flammable chemical were expected to take at least several days, U.S. Coast Guard officials said Tuesday.
A 4-mile to 8-mile stretch of the ship channel remained closed as crews worked to deal with the gasoline additive that spilled after two 600-foot ships collided on Monday in foggy conditions.
U.S. Coast Guard Capt. Brian Penoyer said the immediate goal is ensuring that there is no danger from the spilled additive—methyl tert-butyl ether or MTBE—as it is highly flammable and can be dangerous to people if inhaled in high doses. No injuries were reported from the collision.
Three cargo tanks of the chemical on the Danish-flagged Carla Maersk were ruptured when it collided with the Liberian bulk carrier Conti Peridot. A cause of the collision hasn't been determined. The Carla Maersk, which remains in the channel, was carrying approximately 216,000 barrels of MTBE before the collision but officials were still trying to determine how much had been spilled.
“We have to proceed step by step, making sure the flammability, the toxicity of this cargo is absolutely safe,” said Capt. Penoyer, commander of the Houston-Galveston Coast Guard District. “We need to recognize this is an enormously complex salvage operation.…We are driven by factors on the ground, not by a desired time frame.”
Capt. Penoyer said officials have found no detectable concentrations of MTBE in the air in the shoreline communities around the spill since about midnight Monday and no sheens of the chemical have been found on the water.
“This indicates to us the risk to the public from toxic vapors or flammability of this cargo is virtually nil,” he said.
There were no shelter-in-place orders on Tuesday for communities near the 50-mile channel that connects the Gulf of Mexico to the Port of Houston.
However, there was limited access into the Morgan’s Point area, a city of about 350 residents located 30 miles east of Houston and adjacent to Galveston Bay at the entry point to the ship channel. The limited access included the area around Barbours Cut Container Terminal on the ship channel and at least one road into Morgan’s Point, said Jeff Suggs, emergency management coordinator for the nearby city of La Porte.
The Port of Houston, a major part of the ship channel, is home to the nation’s largest and one of the world’s largest petrochemical complexes. It typically handles about 70 ships a day, plus 300 to 400 tugboats and barges, and consistently ranks first in the nation in foreign waterborne tonnage, U.S. imports and U.S. export tonnage.
The financial impact of the closure of the ship channel wasn't immediately known. But the Barbours Cut Container Terminal, run by the Port of Houston Authority, was closed on Tuesday because of the cleanup efforts.
On Tuesday, there were 28 ships waiting to go into the Houston Ship Channel and 24 waiting to come out, said Coast Guard Petty Officer Andy Kendrick.
Officials were also working to determine what effects the spill might have on wildlife by taking and testing water samples, Capt. Penoyer said. The Texas Parks and Wildlife Department and other agencies were helping with this effort.
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(ACC Mentioned) Portman, Shaheen Reintroduce Efficiency Package
Mar 11, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
Sens. Rob Portman and Jeanne Shaheen today released the new iteration of their long-delayed energy efficiency legislation.
The 139-page Energy Savings and Industrial Competitiveness Act of 2015 is similar to the version from last year, including 10 bipartisan amendments. The sponsors say the bill would create 190,000 jobs, save $16.2 billion annually and reduce carbon emissions by the equivalent of 22 million cars.
The legislation would boost building codes, help manufacturers cut energy use, sets up a DOE program called Supply Star to promote efficient supply chains and increase federal efficiency efforts, among other things.
“This bill has garnered such widespread support because of a simple fact — it is good for the economy and good for the environment,” Portman said in a statement.
The new bill quickly garnered praise from the Alliance to Save Energy, the Business Council for Sustainable Energy and the American Chemistry Council.
Shaheen told POLITICO on Tuesday that she and Portman have not yet gotten a promise of floor action.
“A vote to pass our legislation is long overdue and I hope the overwhelming support behind this bill will help carry it through the Senate,” she said today.
The co-sponsors are Senate Energy and Natural Resources Chairwoman Lisa Murkowski, committee ranking member Maria Cantwell and Sens. Kelly Ayotte, Michael Bennet, Susan Collins, Chris Coons, Al Franken, John Hoeven, Joe Manchin, Mark Warner and Roger Wicker.
— Alex Guillén
CORRECTION: A previous version of this alert misidentified the bill’s 10 bipartisan amendments as new.
All corrections
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Fracking's Impact on Water ‘Needs to Be Considered,' Former DOJ Official Says
Mar 12, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Former U.S. Assistant Attorney General Ignacia Moreno said March 11 that the impact of hydraulic fracturing, or fracking, on water is something that “needs to be considered,” and there are laws that can help address negative effects.
Moreno, who led the Justice Department's environmental division from 2009 to 2013, said she and a number of other U.S. attorneys, state and local officials and their counterparts at the Environmental Protection Agency got together to “try to figure out what is this, where is it happening and what are the legal authorities?”
Fracking has recently exploded across the U.S. as a way to unlock natural gas or oil by blasting water, sand and chemicals into shale rock, though the growth in shale oil output has slowed recently as a result of the decline in oil prices (47 DEN A-15, 3/11/15).
There are concerns, however, that the process can pollute drinking water resources.
The EPA is working on a long-awaited study on the subject, which environmental advocates hope will provide the factual basis for stronger regulations of fracking (206 DEN A-8, 10/24/14).
Existing Laws May Work
“Some say you need a new statute for fracking regulations,” Moreno said at Stetson University College of Law in response to a question about fracking's potential impact on aquifers. “Our position was that there are existing laws,” including the Clean Water Act and the Clean Air Act, “that you can look to.”
“No one is looking at it from the perspective of shutting anybody down or shutting down the activity,” she added. But “If you need to frack because you need the source of energy, then how do you do it while protecting the environment?” she said.
Some states, including New York, and cities and counties in Colorado, Texas and elsewhere have banned fracking over concerns about its impacts on public health and the environment. Lawsuits challenging many of these bans are now “going through the courts,” Moreno said (8 DEN B-11, 1/13/15).
“My challenge to you all,” she told an audience of law school students, “is to say how do I look at this not as black and white, but how do I bring my expertise? How do I work with scientists? … How do we use this technology in a way that we don't regret later?”
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In New York Fracking Fight, Peer-Review Trashed By Far-Left Politics
Mar 12, 2015 | The Hill - Congress Blog
By Simon Lomax
National anti-fracking groups are urging energy producing states, including Colorado and California, to impose oil and gas production bans after New York Gov. Andrew Cuomo (D) blocked hydraulic fracturing for shale gas in the Empire State. A recent column by the Center for Health, Environment and Justice went further and demanded President Obama impose a national ban on hydraulic fracturing and the domestic oil and natural gas development it makes possible. The column even portrayed Cuomo and anti-fracking activists as champions of “peer-reviewed science.”
Here’s what actually happened in New York: The peer-review process, at the heart of the scientific method, was thrown under the bus by anti-fracking activists and the Cuomo administration.ADVERTISEMENTFor starters, one of the research papers waved in front of the cameras at the Dec. 17 announcement of the ban was actually written and peer-reviewed by fracking opponents who concealed their bias from the public, in violation of well-established codes of scientific conduct.
Several of the paper’s authors worked for oil and gas opposition groups, but they did not identify themselves as anti-industry campaigners. One of those groups is a “ban fracking” outfit that uses buckets lined with plastic bags to collect bogus air samples. These samples were presented as evidence in the paper, even though the group had previously admitted the so-called “bucket brigade” is “not a scientific experiment.”
All three of the paper’s reviewers were oil and gas opponents, too. They were led by the co-founder of New Yorkers Against Fracking, Ithaca College professor Sandra Steingraber, who bragged after the ban was announced “it is so sweet … to tell the story of our victory over the shale gas army.”
According to the International Committee of Medical Journal Editors, peer reviewers should “recuse themselves from reviewing specific manuscripts if the potential for bias exists” to maintain “trust in the scientific process.” As for the authors, the World Conference on Research Integrity says they should disclose financial and non-financial conflicts “that might be considered likely to affect the interpretation of their findings or which editors, reviewers or readers might reasonably wish to know.”
But the “bucket brigade” paper isn’t only problematic source used by the Cuomo administration – far from it. A report released by Cuomo’s health commissioner cites three different papers from a “progressive” journal, whose contributors include “environmentalists in their many habitats” and “activists on the streets.” This journal has been called out by a United Nations environmental adviser as “not a mainstream journal of the sort where high standards of refereeing would apply.”
Cuomo’s report also cited a number of papers from Colorado, but failed to disclose the fact the researchers have been criticized by public health officials for, among other things, making assumptions that were “not factually or scientifically valid.” The report event cites so-called research from the anti-drilling group Earthworks, without mentioning its clear bias on the issue.
Cuomo needed these and other questionable sources to justify his decision because environmental regulators had already concluded twice before – in 2009 and 2011 – that hydraulic fracturing for shale gas could safely proceed in New York. Likewise, federal environmental regulators under Democratic and Republican presidents and their counterparts in other states – including California – have rejected the “ban fracking” agenda as a fringe ideology rooted in far-left politics, not facts. Recently, when asked about New York, Obama’s Interior Secretary Sally Jewell said fracking bans are the “wrong way to go” and suggested anti-fracking activists “don’t understand the science.”
But Cuomo ignored all of this and delayed his decision for years while the anti-fracking campaign went to work. One of the biggest contributors was the $400 million Park Foundation in Ithaca, N.Y., which funded anti-fracking work “from every angle,” including “science, research, corporate influence, policy, legal issues, health effects, economic forecasting, grassroots efforts, media, and investment strategies.” Steingraber – peer-reviewer of the “bucket brigade” research paper – is an “academic recipient of Park money,” according to Philanthropy magazine. Her group, New Yorkers Against Fracking, also received more than $500,000 from the Park Foundation, with Washington, D.C.-based “ban fracking” group Food & Water Watch acting as the pass-through. Earthworks, cited in Cuomo’s report on the fracking ban, has also received at least $375,000 from the Park Foundation.
In its column, the Center for Health, Environment and Justice cited the work of another New York group – Physicians Scientists and Engineers for Healthy Energy, or PSE – as showing “nearly all bad news” about fracking. But according to Philanthropy magazine, PSE was created with Park Foundation money “to promote an aggressive anti-shale-gas agenda.” The column also failed to mention the Center for Health, Environment and Justice’s own funding – at least $125,000 – from the Park Foundation. When it pledged to campaign “from every angle,” the Park Foundation meant business. A 2014 report from the Senate Environment and Public Works Committee even cited the Park Foundation’s “manufactured echo chamber” as one of the best examples of far-left environmental campaigning in the nation today.
All told, New York’s fracking ban was a victory of fringe environmental politics over the facts. Nothing more and, importantly, nothing less.
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Plans To Explore For Oil Offshore Worry East Coast Residents
Mar 12, 2015 | NPR
By Sarah McCammon
As the Obama administration opens the door to offshore drilling, the oil industry is promising more jobs and less reliance on foreign oil. Some people who live along the Eastern Seaboard are saying, "no thanks."
Coastal towns and cities in several states are formally opposing offshore drilling and oil exploration.
Tybee Island, Ga., is a short drive across the marsh from the historic city of Savannah. The island is dotted with hotels and tiny vacation cottages for tourists — and for about 3,000 people, it's home.
"This is one of the most unique places I've ever seen," Tybee City Councilman Paul Wolff says. Walking along the beach on an overcast day, he says a height limit for buildings helps preserve the ocean view.
"It's a coastal community that hasn't been overdeveloped," he says.
Wolff worries about a federal proposal to open up areas at least 50 miles off the coast of Georgia, the Carolinas and Virginia to oil and gas development. Federal regulators say drilling wouldn't happen for several years at least, but many companies want to start surveying for oil now.
Wolff says an offshore oil boom could threaten marine animals — and the island's thriving tourism industry.
"We make a lot of money and a lot of folks on Tybee support their families by doing dolphin tours; I don't want to take a chance on hurting that for anybody," he says.
Earlier this year, Wolff sponsored a resolution opposing both offshore drilling and seismic air guns. That's a technique that blasts sound waves into the ocean every 15 seconds or so, to search for oil and gas deposits.
Tybee's city council passed the resolution unanimously, joining more than 30 others since last year on the Eastern Seaboard.
Another is Beaufort, S.C., where a small group of residents recently met in the mayor's waterfront cottage to talk about how to oppose the oil industry.
Megan Feight, 28, grew up surfing and now owns a business in Beaufort. She recalls seeing the aftermath of the 2010 BP oil spill while flying over the Gulf of Mexico in an airplane.
"Seeing something like that in person gives you sort of the same feelings that you see when you see photographs or videos of it — it's horrifying and real," she says.
Even without an oil spill, some researchers worry that noise from seismic air guns may confuse marine animals that depend on sound for navigation. i
Industry leaders like Richie Miller say they follow federal rules meant to protect wildlife. He's the president of Spectrum Geo, an oil and gas survey firm based in Houston that's applying to conduct some of the seismic tests.
"There are what we call PSOs, protected species observers, on the vessels, and they're there solely to look for marine mammals. And if they get within a certain safety zone, then the vessels shut down," he says.
As regulators consider requests from companies like Miller's, the federal Bureau of Ocean Energy Management is hosting public meetings up and down the coast to discuss both offshore drilling and seismic testing.
"This has been piquing a lot of interest," says John Filostrat, a spokesman for the agency.
"Seismic acquisition hasn't been conducted on the Atlantic for three decades, and so we really don't have up-to-date information on what's out there," he says.
What happens next is up to state and federal regulators. Coastal cities can only pass resolutions expressing opposition, without any force of law.
But Beaufort's mayor, Billy Keyserling, says these local efforts are important.
"I think that the more towns which do represent bundles of people that are involved in sending the message and educating the public, the more difficult it's gonna be," he says.
If the plans move ahead, ships carrying seismic air guns could start their search for oil as early as this year.
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Revenue From Crude Oil Exports Is Considered to Pay for Highway Fund
Mar 12, 2015 | BNA Daily Environment Report
By Stephanie Beasley and Ari Natter
Congressional Republicans are considering allowing crude oil exports and increasing energy production on federal lands to raise funding for surface transportation programs.
Senate Majority Whip John Cornyn (R-Texas), said the idea of allowing crude oil exports, which are currently prohibited by law, to provide additional revenue to raise money for the Highway Trust Fund “has some potential.”
“We need to get everybody at the table and develop that,” Cornyn told Bloomberg BNA March 11. “It's not something that's going to happen overnight.”
A Cornyn aide said the additional revenue generated through the export of U.S. crude oil could be scored in such a way as to be deficit-reducing.
Lifting the ban, which was put in place in 1975, following the Arab oil embargo, would raise an estimated $1.3 billion in government revenue, according to ConocoPhillips, a supporter of lifting the ban, citing data from consulting firm IHS.
The Senate Energy and Natural Resources Committee has scheduled a March 19 hearing on the crude oil export ban, which is getting a second look, as U.S. oil production has skyrocketed because of advances in hydraulic fracturing and horizontal drilling.
Other ideas being considered to pay for the fund, which expires at the end of May, include expanding domestic energy production on federal land and using the increased revenue, Sens. John Hoeven (R-N.D.) and John Thune (R-S.D.) told Bloomberg BNA separately on March 11. “It's got some support out there,” Thune said, adding, “Nothing has been fleshed out very much.”
Transportation Experts React
Sen. Dean Heller (R-Nev.) said during an industry event March 10 that the Senate Finance Committee plans to identify a funding mechanism for a five- to six-year bill reauthorizing federal highway and mass transit programs by the end of May.
Current authorization expires on May 31. The Highway Trust Fund, the revenue source for surface transportation programs, is expected to reach insolvency shortly thereafter.
Jack Basso, a transportation financing expert with Parsons Brinckerhoff, noted that the crude oil export proposal differs from others being floated in that there is no guarantee that the revenue it creates will be infused into the highway fund. He also said he is doubtful about whether there is enough support in Congress to dynamically score the proposal.
In January, the Republican-controlled House approved the use of dynamic scoring for large tax expenditures, but Democrats remain wary of the concept.
“With dynamic scoring, the thing that actually concerns me is, can you get anyone to change the scoring rules,” Basso told Bloomberg BNA March 11.
But an industry attorney said it isn't surprising that lawmakers are putting all options on the table, given the strong interest among leaders in the House and Senate to pass a multiyear transportation bill.
“I interpret that to mean they're looking at everything and anything that comes up that's anywhere near credible,” said Jack Schenendorf, former chief of staff to the House Transportation and Infrastructure Committee and now of counsel at Covington & Burling LLP.
Schenendorf said marrying revenue-raising proposals to “fixing” the Highway Trust fund is a good way for lawmakers to gain support. Still, he noted the ban on crude oil exports must first be lifted before it can become a viable revenue source for surface transportation infrastructure.
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Repeal the Decades-Old Oil Export Ban to Help Energy Renaissance
Mar 12, 2015 | The Hill - Congress Blog
By George Baker
The ongoing shale oil renaissance and the United States’ abundant natural resources has transformed our energy landscape, allowing American consumers access to affordable fuel supplies and spurring significant investment and job growth across our economy.
But in order for this renaissance to continue, it is critical that lawmakers ensure that U.S. policy keeps pace so that our energy resources are being leveraged to provide the maximum benefit to the nation’s economy and international geopolitical interests.
This point was made clear at a recent House Energy and Commerce subcommittee hearing, where witnesses emphasized the enormous value that the changing dynamics in the global energy markets offered for the U.S. economy and America’s energy security.
The hearing highlighted the fact that all this historic promise is jeopardized by a little known provision of law that was enacted 40 years ago in the wake of the Arab oil embargo, which restricts the export of domestically produced crude oil. And whatever the merits of this policy may have been then, in this new age of energy abundance, prohibiting the export of America’s excess supply of crude oil no longer makes any practical or political sense.
Here’s why.
As the global leader in oil and natural gas production – recently surpassing both Russia and Saudi Arabia – the U.S. has turned global energy markets upside down. According to the U.S. Energy Information Administration, we now produce 9.2 million barrels of crude oil each day – the highest annual average in over three decades. Much of this growth is attributed to shale development and the production of light crude oil.
However, because much of our domestic crude oil refining capacity is configured to refine heavy grades of crude oil which are largely imported, we now find ourselves in a position where there’s a growing “mismatch” between the oil we produce (light) and the type of oil we can refine (heavy).
Domestically produced light oil has already reduced the volume of imported light oil by three million barrels per day. However, given the lack of refining capacity to handle the increased production, crude oil inventories are swelling to record levels, creating a glut of light oil that is depressing domestic crude oil prices. This is causing the spread between international (Brent) and domestic (WTI) crude oil prices to widen.
With the restriction on crude oil exports preventing U.S. producers from accessing global markets – while refiners have the ability to buy and sell freely – drilling rigs are being idled, jobs along the supply chain are being lost and the continued growth of the American shale oil renaissance is at risk.
As for concerns related to gasoline prices, the Subcommittee hearing last week made it quite clear that the reduced cost of domestic crude oil does not translate into lower gasoline prices for U.S. consumers. In fact, every analysis, thought leader and think tank that has weighed-in on this issue acknowledges that the price consumers pay for gasoline here in the U.S. is determined by the higher international crude oil benchmark.
According to ICF International, lifting the ban “could save American consumers up to $5.8 billion per year, on average, over the 2015-2035 period.” Moreover, while the domestic benefits to modernizing our nation’s energy policy are clear, the influx of U.S. crude oil to the global market would better enable our trading partners and allies to reduce their dependence on less reliable and unfriendly sources of energy.
This point was made clear by the White House last month in their National Security Strategy, which noted: “The challenges faced by Ukrainian and European dependence on Russian energy supplies puts a spotlight on the need for an expanded view of energy security.”
Our transformation from a period of perceived energy scarcity to one of energy abundance has been nothing short of a game changer for the United States. It has turned global energy markets upside down and positioned the U.S. to become a global energy superpower. For us to take full advantage of this opportunity, however, we first need to repeal the decades old oil export prohibition standing in our way.
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GOP Energy Plan Needs to Go a Step Further, Include Energy Exports
Mar 12, 2015 | Roll Call
By George David Banks
Upon releasing their comprehensive energy policy package last month, House Energy and Commerce Committee Fred Upton, R-Mich., and Energy and Power Subcommittee Chairman Edward Whitfield, R-Ky., noted, “Our energy realities have changed dramatically — we’ve gone from bust to boom practically overnight. Today’s energy policies are lagging far behind, and are better suited for the gas lines in the 1970s than this new era of abundance. We need policies that meet today’s needs and are focused on the future.”
I couldn’t agree more with Upton and Whitfield. We are in the midst of an energy renaissance and it is well past time for our energy policies to catch up. However, while their agenda is a good first step, I would urge them to broaden it to include a specific look at lifting the ban on crude oil exports and expanding liquefied natural gas exports. Then our policies truly will be focused on the future.
In February, the Energy Information Administration projected that U.S. crude oil production could continue to rise from its 30-year high of 9.2 million barrels a day to an all-time crude oil production record in 2016; beating the previous high set in 1970. But for over four decades, U.S. companies have been banned from exporting crude oil. Bell-bottom jeans and platform shoes went out with the ’70s, so why hasn’t this outdated energy policy? Especially in light of the multiple macroeconomic studies that extoll the benefits of lifting the ban on crude oil exports — increased employment, economic growth and improved overall consumer welfare.
In a study commissioned by the Brookings Institution, the National Economic Research Associates found that eliminating the ban on crude oil exports could inject between $600 billion and $1.8 trillion into the domestic economy and add at least 200,000 new jobs. The NERA study only reinforced an earlier IHS analysis that had similar findings, saying that lifting the ban would generate one million jobs at its peak.
Along with the oil production boom, we have become the world’s largest producer of natural gas. And much like lifting the crude oil export ban, expanding LNG exports would bring substantial economic benefits to Americans. ICF International concluded in a study that LNG exports could add between 73,100 and 452,300 jobs in our country by 2035 and benefit almost every U.S. state either directly or indirectly.
Unfortunately, we have yet to take full advantage of the opportunity at hand thanks to our abundant shale gas resources and advancements in technology. In this case, the culprit is a backlog of applications pending review at the Department of Energy to export LNG to countries without a free-trade agreement with the United States. LNG liquefaction and export facilities are capital-intensive projects costing billions of dollars and taking years to permit and construct, and DOE’s piecemeal approach risks yielding our LNG energy advantage to other nations also building terminals to access international demand.
Not only will encouraging the export of our country’s abundant natural resources benefit Americans here at home, but it will also make the United States a global energy leader in energy diplomacy, one of the four policy areas stressed in the Energy and Commerce Committee’s legislative framework. The combination of increased domestic resources and an expanding global market presents our country with a historic opportunity. It will allow us to strengthen our economy and create jobs while increasing energy security for our allies abroad. Unless our policymakers take meaningful action to support exports — rather than restrict and delay them — countries that will use energy as leverage and a political weapon will continue to dominate the market for our allies in Asia and Europe.
Finally, the crude oil export ban and federal foot-dragging on LNG export permits is also inconsistent with our long-standing position on free trade and damages our credibility on the world stage. The United States, which has been a staunch promoter of free trade, stands to violate its own policies and international trade regulations if it continues to restrict and limit energy exports. History teaches us that open markets are essential to global economic prosperity and political stability. It is paramount that we uphold our nation’s economic foundations of free markets and free trade by ending our own de facto trading restrictions.
Republicans should be applauded for recognizing it’s time to move forward with energy policies that reflect our new role as a global energy leader. But to truly embrace that role and unlock our energy potential, Congress should lift the decades-old ban on crude oil exports and expand LNG exports. We must take every advantage of our current energy boom because we may not get this chance again.
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EPA Head Unbowed on Plans to Finalize Power Plant Carbon Rules This Summer
Mar 12, 2015 | BNA Daily Environment Report
By Dean Scott
The head of the Environmental Protection Agency said March 11 she remains unbowed in the face of attacks on the EPA's power plant carbon pollution limits—including Senate Majority Leader Mitch McConnell's recent call for states to ignore them.
In a speech to the Council on Foreign Relations, EPA Administrator Gina McCarthy vowed the power plant limits—which call for cutting carbon dioxide emissions 30 percent by 2030 from 2005 levels—will be finalized this summer.
McCarthy also downplayed complaints from some states and industry groups, as well as some lawmakers including the Kentucky Republican, who wrote a March 3 op-ed urging states to “think twice” before sending the EPA their plans for complying with the carbon limits (43 DEN A-1, 3/5/15).
“I am happy to leave it to the states, including the state of Kentucky, to speak to the folks on the Hill who think that the best thing is for states to put their heads in the sand—and pretend like EPA isn't going to regulate,” McCarthy said. “EPA is going to regulate—mid-summer is when the Clean Power Plan is going to be finalized.”
McCarthy said that in general, states and the federal regulatory agency have had an “incredibly robust” back-and-forth over the requirements, dubbed the Clean Power Plan, which the EPA proposed in June as the centerpiece of President Barack Obama's domestic climate policies (RIN 2060-AR33) (106 DEN A-1, 6/3/14).
Significant Dissension Among States?
McCarthy suggested tensions between the agency and states has been overstated, and she touted what she said has been an “unbelievable job” by the EPA to provide states flexibility in meeting the carbon reductions.
McCarthy said she sees no evidence states are “pulling away from the engagement, and it is incredibly robust.”
Some legal scholars and opponents of the EPA regulations have argued that states opposed to the agency's approach should refuse to comply with the rule once it is finalized, a tactic they have dubbed “just say no.”
Some states—Arizona, Kentucky, Tennessee and Texas—have expressed concerns about complying with the mandated carbon reductions the EPA has set for them.
Other states—such as Colorado, Minnesota, New York and Washington—are generally supportive of the standard but have quibbled with specific provisions, such as the EPA's use of 2012 as the baseline year in its proposal. That would mean states wouldn't get credit for emissions reductions made before then(20 DEN A-1, 1/30/15).
States Shouldn't Be Deterred by Opponents
But McCarthy said all states should bank on the fact that the EPA will proceed with the carbon pollution limits and not be deterred by opponents.
“If folks are thinking any of those pieces aren't going to happen and this isn't going to hold up and [that] this isn't going to be implemented, I think they need to look at the history of the Clean Air Act a little more carefully,” the EPA administrator said. “That's not how we do business.”
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Some States Say They Lack Time to Pass Legislation Necessary for Clean Power Plan
Mar 12, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's proposed Clean Power Plan may not give states sufficient time to pass legislation necessary to implement the proposed carbon dioxide emissions reductions, some states told a Senate committee.
State regulators told the Senate Environment and Public Works Committee March 11 that they lack the authority necessary to implement many of the emissions control strategies proposed by the EPA. However, the agency's proposed deadlines for implementing the first emissions reductions beginning in 2020 may not give state legislatures and regulators the time necessary to approve that authority, states said.
“We have at least a three year rulemaking process for a controversial rulemaking process, which I submit this would be,” Wisconsin Public Service Commissioner Ellen Nowak said.
The Clean Power Plan (RIN 2060-AR33) would set unique carbon dioxide emissions rates for the utility sectors in each state. States would then develop their own plans to achieve that emissions rate(106 DEN A-1, 6/3/14).
The proposed rule identifies four “building blocks” states can use to meet the emissions rates, including improving the heat rate at existing coal-fired units, expanding use of natural gas generating capacity, investing in new renewable energy projects and implementing demand reduction programs.
The proposed rule includes an interim target states must achieve between 2020 and 2029, with a final emissions rate to be achieved by 2030.
However, state environmental and utility regulators said they lack the authority to pursue all of those building block options, particularly for renewable energy and energy efficiency investments. The interim deadlines may not allow them sufficient time to revise the laws and regulations necessary to comply, they said.
Indiana Agency Lacks Authority on Measures
Thomas Easterly, commissioner of the Indiana Department of Environmental Management, said his agency lacks the authority to pursue any of those options except heat rate improvements at existing coal-fired power plants.
Todd Parfitt, director of the Wyoming Department of Environmental Quality, also said his agency would need legislation to approve any plan that included new renewable energy generation or energy efficiency programs.
EPA Administrator Gina McCarthy told the Council on Foreign Relations March 11 that the agency will finalize the Clean Power Plan this summer despite concerns raised by states and congressional Republicans (see related story).
Wyoming Energy Production Penalized
Parfitt said the EPA's proposed rule penalizes Wyoming in particular because that state exports a large portion of the electricity it generates.
As part of the proposed Clean Power Plan, the carbon dioxide emissions from Wyoming's fossil fuel-fired power plants count against its emissions targets, but the renewable energy it exports to other states is credited there and not to Wyoming. Two-thirds of Wyoming's renewable energy is consumed out of state, Parfitt said.
Wyoming is unlikely to add any new renewable generation in time to comply with the Clean Power Plan because half the state's land is owned by the federal government and therefore subject to lengthy National Environmental Policy Act reviews, Parfitt said. Projects already in development have had to wait as long as eight years for the reviews to be completed, he said.
States also said the EPA's proposed carbon emissions rates will harm their manufacturers, possibly driving them overseas and potentially even increasing greenhouse gas emissions.
“When these businesses close, U.S. emissions will decrease but worldwide emissions will increase,” Easterly said.
Nowak also worried that the proposal's requirements will undue Wisconsin's efforts to grow its manufacturing base.
Clean Power Plan Defended
Though Indiana, Wisconsin and Wyoming all had concerns with how the Clean Power Plan might effect their economy and the power sector's reliability, officials from New York and California, which have already taken steps to reduce carbon dioxide emissions, said their experience shows that emissions reductions can be achieved cost effectively while promoting economic growth.
“EPA is using its Clean Air Act authority in the way it was meant to, to spread success across the country,” Mary Nichols, chairman of the California Air Resources Board, said.
California plans to produce one-third of its electricity from renewable sources by 2020 and 50 percent by 2030 as part of its climate change program. The state has already reduced its carbon intensity by 5 percent since 2009 as it moved to address emissions from power plants and vehicles, Nichols said.
States Need to Use EPA Tools
The success of the Clean Power Plan depends on states taking the tools provided by the EPA to craft the plans that best suit their individual needs, Michael Myers, chief of the affirmative litigation section in the New York State Attorney General's Environmental Protection Bureau, said.
New York participates in the Regional Greenhouse Gas Initiative, a collection of nine Northeast and mid-Atlantic states that have pledged to reduce carbon dioxide emissions from power plants by 50 percent from 2005 levels by 2020 as part of a regional emissions trading program.
“States are in the driver's seat, but for us to succeed in this critically important area, states have to be willing to take the wheel,” Myers said.
Some opponents of the proposed rule have urged states not to develop their own Clean Power Plan compliance plans. Instead, they should let the EPA issue federal plans instead. The strategy, known as “just say no,” has been advocated by Senate Majority Leader Mitch McConnell (R-Ky.) (43 DEN A-1, 3/5/15).
McCarthy told the Council on Foreign Relations that the EPA will issue federal plans for any state that chooses not to comply.
Some States Say Targets Achievable
The Georgetown Climate Center also held a forum March 10 featuring representatives from Colorado, Minnesota, New York and Washington who said the Clean Power Plan's targets are achievable despite the concerns some states have raised with its structure (47 DEN A-2, 3/11/15).
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EPA Chief Hits Back at States That 'Just Say No' to Carbon Rule
Mar 11, 2015 | Reuters
By Valerie Volcovici
The head of the Environmental Protection Agency (EPA) on Wednesday warned opponents that the agency will enforce regulations to slash carbon emissions from power plants even if states choose not to cooperate.
EPA Administrator Gina McCarthy hit back at lawmakers who have called on state officials to ignore federal deadlines to submit plans to comply with the agency's Clean Power Plan, saying the agency is confident its proposal will weather political and legal challenges.
Last week, Republican Senate Majority Leader Mitch McConnell of coal state Kentucky urged governors and state officials to "think twice" before submitting state plans to the EPA, joining a wider "just say no" campaign led by some lawmakers and industry groups advocating for states to ignore the power plant proposal.
"The EPA is going to regulate. Mid-summer is when the Clean Power Plan is going to be finalized," McCarthy said, adding that the agency will force states that refuse to submit compliance strategies to adopt a federal implementation plan.
The EPA is expected to propose the federal implementation plan as a default for states this summer.
"If folks are thinking any of those pieces aren't going to happen - and (the Clean Power Plan) isn't going to be implemented, I think they need to look at the history of the Clean Air Act more carefully. This isn't how we do business," she said.
A dozen states, including Kentucky, West Virginia, Indiana and Wyoming, sued the EPA last August soon after it proposed its Clean Power Plan last summer on grounds that the agency's use of a certain section of the Clean Air Act was illegal.
The federal DC Circuit Court of Appeals will hear the case on April 16.
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CARB Chief Nichols Talks Power Plan Changes, 'Just Say No' Compliance Option
Mar 12, 2015 | E&E Daily News
What changes should U.S. EPA make to its Clean Power Plan proposal to add clarity and flexibility on multi-state and regional program options? During today's OnPoint, Mary Nichols, chairwoman of the California Air Resources Board, discusses expected changes to the power plan as the agency prepares its final proposal. Nichols also responds to the growing momentum surrounding the "just say no" option for state compliance. Today's OnPoint will air on E&ETV at 10 a.m. EDT.
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OMB Reviews Rule on State Control Of Excess Startup, Shutdown Emissions
Mar 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The White House Office of Management and Budget is reviewing a final rule from the Environmental Protection Agency that would require states to alter their plans to control excess pollution emissions from sources during times of startup, shutdown and equipment malfunction.
The final rule (RIN 2060—AR68), which is the result of a 2011 petition filed by the Sierra Club, was submitted for review March 11, according to OMB's website. The EPA, under a settlement agreement with the Sierra Club and WildEarth Guardians, must sign the final rule by May 22.
The proposed version of the rule, issued in February 2013, would require states to revise their implementation plans to address flaws in the treatment of emissions from sources, such as power plants, during times of startup, shutdown and equipment malfunction, when emissions are typically higher than during normal operation.
The EPA in September 2014 issued a supplemental proposal that state implementation plans can no longer include affirmative defense provisions, which limit the authority of federal district courts to assess civil penalties for regulatory violations that occur due to equipment malfunctions(174 DEN A-10, 9/9/14).
The agency has been moving to remove affirmative defense language from various air regulations in response to a 2014 decision by the U.S. Court of Appeals for the District of Columbia Circuit, which found that the Clean Air Act didn't give the EPA the authority to establish an affirmative defense in the agency's air toxics standards for cement kilns (NRDC v. EPA, 749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. Cir. 2014); 76 DEN A-1, 4/21/14).
Would Make Inadequacy Findings for 36 States
The 2013 proposed rule would make findings of inadequacy for 36 states that fail to adequately address excess emissions during startup, shutdown and malfunction. The 2014 supplemental proposal would find that 17 states are inadequate due to the presence of an affirmative defense provision.
Of those 17 states, only Texas and California weren't identified as having deficient plans in the initial 2013 proposal.
The EPA proposed to issue a “SIP call” for all of the states with deficient plans, which is a request that the states review and revise their state implementation plans to address provisions that are inconsistent with the Clean Air Act. The proposal would give states 18 months to correct and submit their revised plans for agency approval.
If the EPA finalizes the rule as scheduled in May, the submission deadline for revised plans would be in November 2016.
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Senate Efficiency Bill May Be Incorporated Into Broader Legislation, Murkowski Says
Mar 12, 2015 | BNA Daily Environment Report
By Ari Natter
Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.), introduced March 11 energy efficiency legislation for a fourth time, but their hope for the bill to be considered as standalone legislation may not be in the cards.
“It's all about timing,” Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee, told Bloomberg BNA. “This is our big problem: Where are you going to find time for all this great stuff?”
Murkowski, who called herself “a big supporter,” said she is hoping the legislation could be incorporated into a broad energy bill she wants to move forward with this year. The bill, which Murkowski outlined in January, is expected to include energy efficiency as one of four main areas of focus (6 DEN A-1, 1/9/15).
The energy efficiency bill, titled the Energy Savings and Industrial Competitiveness Act, has broad support from lawmakers in both parties and from companies such as Dow Chemical Co. and the investor-owned utility National Grid. However, it has failed to advance beyond the Senate floor because of fights over what amendments would be allowed to the legislation and general dysfunction.
The bill includes provisions that would increase energy conservation in federal data centers, establish voluntary national model building codes, boost energy efficiency in the manufacturing and commercial sectors and loosen energy efficiency standards for grid-enabled water heaters.
The bill also would repeal a provision in the 2007 energy law that requires the government to phase out use of fossil fuels in federal buildings.
“Following reintroduction, it is the senators’ intent to request that their legislation be moved through the Energy and Natural Resources Committee as a standalone bill,” staff for Portman and Shaheen wrote in an e-mail obtained by Bloomberg BNA.
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Sens. Portman, Shaheen Renew Energy Efficiency Push
Mar 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Two senators are putting a renewed effort into their years-long push to establish a cohesive, national energy efficiency policy through legislation.
Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.) said Wednesday that they’d the latest version of their energy efficiency bill Wednesday, saying it would improve the efficiency of the federal government while providing voluntary tools for businesses and individuals to reduce their own energy usage.
Previous versions of the bill have received broad, bipartisan support, but the issue has been mired in political fights that have prevented its passage.
But with 10 new bipartisan provisions, the bill’s sponsors are upbeat about its prospects.
“This bill has garnered such widespread support because of a simple fact – it is good for the economy and good for the environment,” Portman said in a statement.
“By establishing a national energy strategy, we can create jobs, save taxpayers billions, make manufacturers more competitive, and protect the environment,” he said.
“Energy efficiency is the cheapest and fastest way to address our energy challenges,” Shaheen said in the statement. “Our bipartisan bill will create jobs, save consumers billions, and drastically reduce pollution in a smart, effective and affordable way — that’s why it enjoys broad bipartisan support.”
For the federal government, the bill would deploy more energy efficient computers and allow agencies to use existing funds to upgrade buildings to improve efficiency.
Commercial buildings and homes would benefit from updated model building standards that the bill would mandate, as well as new effort to train workers to construct buildings.
The Energy Department would be authorized to work with manufacturers to reduce energy use, and the bill would also exempt thermal storage water heaters from upcoming energy standards.
Last year, a similar bill almost made it to the Senate floor for a vote. But Republicans blocked it after then-Senate Majority Leader Harry Reid (D-Nev.) refused to allow a variety of amendments to the bill, including one to approve the Keystone XL pipeline.
The current legislation has five Republican co-sponsors and six Democrats.
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Resisting McConnell, McCarthy Warns States To Ready For ESPS Adoption
Mar 11, 2015 | InsideEPA
By Stuart Parker
EPA Administrator Gina McCarthy is stepping up her opposition to calls by Senate Majority Leader Mitch McConnell (R-KY) for states to withhold their plans for complying with the agency's greenhouse gas (GHG) standards for existing power plants, saying the agency will issue the rule this summer and states should not “put their heads in the sand.”
Appearing at a March 11 event hosted by the Council on Foreign Relations (CFR), McCarthy was asked about calls by McConnell and other opponents of the power plant existing source performance standards (ESPS) to “just say no” to implementing the plan until courts rule on its lawfulness.
But the administrator had a blunt message for critics hoping the ESPS -- also known as the Clean Power Plan -- will stall, saying, “EPA is going to regulate. Mid-summer is when the Clean Power Plan is going to be released,” adding that states should not “put their heads in the sand.”
EPA's GHG standards will be “real,” “aggressive,” “achievable” and will not significantly increase costs, McCarthy said.
And she told reporters after the event that among the states, she does not see the rebellion brewing that McConnell and others hope to foment. “I don't see that dissention in the ranks,” she said, adding that state regulators have been wrestling with GHG issues for years and “this is not new to these people.”
McCarthy was responding to McConnell's March 4 call for states to withhold their compliance plans. The GOP leader told states in an editorial that they should “Think twice before submitting a state plan -- which could lock you in to federal enforcement and expose you to lawsuits -- when the administration is standing on shaky legal ground and when, without your support, it won't be able to demonstrate the capacity to carry out such political extremism.”
His calls have bolstered opposition from other Republicans and industry critics. The Senate Republican Policy Committee, chaired by Sen. John Barrasso (R-WY), issued a March 10 paper echoing McConnell, a point touted by the spokesman for the National Mining Association.
“EPA’s proposed power plant rule offers states fake 'flexibility' to choose which carbon-reduction measures to implement,” the paper says. “For EPA, 'flexibility' means allowing states to choose the method of their own economic wounding -- and allowing EPA to shift the blame for the rule’s disastrous consequences. States should avoid this trap by refusing to be complicit in the rule that the EPA plans on finalizing this summer,” the paper says.
But McCarthy's response suggests the administrator is stepping up her opposition to the GOP leader, after she initially offered a more lukewarm response. When asked about McConnell's comments March 4, McCarthy declined to comment directly to McConnell's call but she indicated that the agency continues to work closely with states, even if they are reluctant to participate.
“EPA has been working with the states well before we put pen to paper on the rule. That will not change. We continue to have tremendous dialogue with the states, including the state of Kentucky,” she said then.
State Cooperation
During her March 11 appearance, McCarthy reiterated her point that the agency is working closely with states, lauding the collaboration EPA has received from states, citing the extensive public consultation that will drive the rule's development throughout the rulemaking process. Engagement with the states “is incredibly robust,” she said.
EPA plans to release the final ESPS alongside the final new source performance standards (NSPS) for new and modified power plants in the summer, and McCarthy appeared adamant the timetable will not slip. The release of the final NSPS has already been delayed to coincide with the existing source rule, amid continuing intense controversy over both rules, and suggestions that EPA may not require carbon capture and sequestration for coal plants, as proposed in the NSPS, after all.
Speaking to reporters after the event, McCarthy indicated that the agency is still carefully considering modifying the proposed interim GHG emission-reduction targets at the behest of some states and industry, who may be faced with “constraints” that could render meeting the goals difficult. “We are looking at it really carefully,” she said.
McCarthy said states have have asked the agency to issue a model rule to ease implementation of the ESPS, and athough this is something that EPA generally doesn't do “out of the gate,” the agency will do so on this occasion. The rule relies on states to meet their EPA-mandated emissions reduction requirements by crafting their own compliance plans, using a mix of measures, including energy efficiency improvements beyond power plants themselves.
During her remarks to the CFR event, McCarthy touted options for states to make greater use of energy efficiency as a means of complying with the rule, saying that across the economy as whole, efficiency remains one of the best ways for states to comply. She cited great improvements in efficiency already released by some states such as her native Massachusetts.
Energy efficiency improvement is always the lowest cost option, she said, confiding that “I have to say I am a bit of an energy efficiency nut.”
There is a long history of state efforts to improve efficiency, with a lot of “low-hanging fruit” available to state regulators, she said, praising advances in technology to improve efficiency that will provide economic benefits for the country. Her comments come on the same day as Sens. Jeanne Shaheen (D-NH) and Rob Portman (R-OH) again offered their bill to improve energy efficiency, which attracted bipartisan support but ultimately failed in the last Congress.
McCarthy also praised efforts by other federal government departments and agencies to battle climate change and improve energy efficiency. “I am not sitting by myself,” she said, noting for example efforts by the Department of Energy to examine possible energy infrastructure improvements in its forthcoming Quadrennial Energy Review.
Ultimately, McCarthy said, climate change needs to be seen not only as an environmental issue but also a threat to economic stability and national security. Fighting climate change represents “an economic opportunity that we can seize,” she said. The issue “needs to be front and center at the G8,” not relegated to environmental policy forums, she said.
McCarthy also underscored the important role the ESPS will play in the United States' efforts to reach a global deal to curb climate change.
“EPA is playing a critical role” in advancing the country's drive to lead by example in United Nations-sponsored talks on a new climate accord, to be negotiated in Paris in December, she said. McCarthy initially told the CFR event she hoped to see a “binding” agreement emerge from the Paris conference, but was quick to clarify that this did not imply “legally binding” or a new treaty, necessarily, deferring to Secretary of State John Kerry's lead role in the talks. “I am going to leave it up to Secretary Kerry” to determine what constitutes “success” in Paris, she said.
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GOP Highlights State Objections to EPA Climate Rule
Mar 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Senate Republicans used a Wednesday hearing on the Environmental Protection Agency’s (EPA) landmark climate rule to highlight the objections from states that oppose the rule.
The GOP brought in officials from Indiana, Wyoming and Wisconsin — each of which has Republican governors and Republican majorities in both legislative chambers — to outline how they find the rule unreasonable, irresponsible and illegal.
Democrats on the Environment and Public Works Committee brought in officials from New York and California — whose governors are Democrats — to support the regulation, which aims to slash the power sector’s carbon emissions 30 percent by 2030.
It was the second hearing in as many months that the panel has held on the rule, to which Republicans strongly object and have sought to scuttle or change significantly.
“The proposal undermines the longstanding concept of cooperative federalism under the Clean Air Act where the federal government is meant to work in partnership with the states to achieve the underlying goals,” Sen. Jim Inhofe (R-Okla.), the committee’s chairman, said at the hearing. “Instead, this rule forces states to redesign the ways they generate, manage and use electricity in a manner that satisfies President Obama’s extreme climate agenda.”
The witnesses from Republican states said that the EPA’s proposal from last year was unattainable given the time constraints, the high amounts of carbon reductions and the inflexible tools.
“This proposal will cause significant harm to Hoosiers and most residents of the United States without providing any measurable offsetting benefits,” said Thomas Easterly, commissioner of the Indiana Department of Environmental Quality.
Ellen Nowak, chairwoman of Wisconsin’s Public Service Commission, said the rule threatens Wisconsin’s economy.
“If the problems in the Clean Power Plan are not remedied, the work Wisconsin has done to restore our manufacturing sector will be threatened,” she said.
Democrats used the stories of New York and California to prove their contention that states can cut emissions and remain economically competitive.
Both states are in the midst of their own efforts to slash carbon pollution from power plants.
“I have good news for other states: you can significantly reduce these emissions from the power sector and do so in a way that helps grow your economy,” said Michael Myers, chief of the New York Attorney General’s Office’s environmental litigation section.
Sen. Barbara Boxer (D-Calif.), the panel’s top Democrat, applauded New York and her home state.
“California, New York, and other states should be proud of their leadership in putting forward real solutions to climate change and showing that meeting the goals of the Clean Power Plan will benefit states and the American people,” she said.
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House GOP Seeks To Codify EPA's Coal Ash Rule With State Enforcement
Mar 11, 2015 | InsideEPA
By David LaRoss
House Republicans are floating a draft bill that would largely codify EPA's final coal ash disposal rule that regulates the material as solid rather than hazardous waste, but the legislation would give states primary authority to enforce waste disposal site standards and prohibit the agency from ever regulating ash as hazardous waste in the future.
The draft bill, released March 11 by Rep. David McKinley (R-WV), aims to avoid what industry and states have called uncertain “dual track” enforcement under the agency's final regulation, by which facilities would have to comply with state-crafted standards but could still be sued by citizen groups for failing to meet separate federal regulations.
“The draft legislation would incorporate EPA’s final coal ash rule announced in December. It would eliminate the implementation issues associated with the final rule and give states the necessary enforcement authority to implement the standards set by EPA,” according to a press release from the House Energy & Commerce Committee announcing the bill ahead of a planned environment subcommittee hearing on the bill slated for March 18.
McKinley's announcement comes as EPA is expecting to publish the final coal ash disposal rule in the Federal Register in the coming weeks, which would start the clock for groups to file suit over the rule and also begin implementation of some of the regulation's requirements within six months.
If enacted into law, the bill would largely codify EPA's decision to regulate ash as a solid waste under subtitle D of the Resource Conservation & Recovery Act (RCRA) as industry and states sought. That move rejected calls from environmentalists for regulation as hazardous waste under RCRA subtitle C that they argued that would lead to stricter disposal controls, though industry said solid waste rules are just as protective as subtitle C.
But the draft bill would bar EPA from ever revising the rule to regulate ash as hazardous waste, which House Energy & Commerce Committee environment panel Chairman John Shimkus (R-IL) has suggested is a necessary step in order to provide “certainty” to the disposal industry and others about how EPA regulates ash.
“Nothing in this Act, or the amendments made by this Act, shall be construed to alter in any manner” EPA's determination that coal ash is not a subtitle C hazardous waste, the bill says.
The new draft bill echoes much of the content of legislation McKinley unsuccessfully pushed in 2013 that would generally apply subtitle D ash standards, but under a new enforcement track where states would craft standards for ash disposal that would be reviewed and approved by EPA, without citizen suit provisions.
The bill cleared the House but failed to gain traction in the Democratic-led Senate last year, although the White House did not threaten a veto and instead offered ways to revise the bill to win President Obama's support, signaling that Obama could be open to signing the current bill if it clears the legislature.
Incorporating technical standards from the agency's Resource Conservation & Recovery Act (RCRA) rule into the draft legislation means the bill would regulate some “legacy” sites -- facilities where ash is still stored but is no longer actively deposited -- as well as fugitive dust emissions. Environmentalists sought the inclusion of those provisions in EPA's rule, and they could help win Democratic support for the legislation.
EPA's top waste official however has downplayed the need for legislative fixes to the rule to address what GOP lawmakers say is uncertainty over whether the agency may revisit its decision that ash is not a hazardous waste and fears that some provisions of the rule make operators vulnerable to citizen suit enforcement.
Disposal Rules
If approved as drafted, the bill would give states two years to craft coal ash disposal rules and submit them to EPA for review. State rules would have to be at least as stringent as those set out in the agency's 2014 rule, and would be enforceable by state regulators or through citizen suits. EPA would directly administer coal ash disposal permitting in any state that does not craft its own approved plan.
“The legislation will not impact the ability to bring citizen suits under RCRA -- it will just alleviate citizen suits as being the only mechanism for enforcement,” says a House energy panel summary of the bill.
McKinley's bill would also carry over EPA's language on reuse of coal ash, including its use in construction materials as well as in structural fills. Environmentalists have expressed concern over some of the rule's language on beneficial reuse, as the advocates claim that coal ash is hazardous waste and warn that unregulated reuse poses a risk to human health despite the agency's decision to identify the substance as solid waste.
Alongside engineering requirements for ash disposal sites, the rule set first-time criteria for distinguishing disposal from "beneficial reuse," in which coal ash is used as a component in manufactured products such as wallboard or as an engineering material. Ash reuse projects that fail to meet the listed criteria would be categorized as "disposal" and subjected to RCRA subtitle D standards.
The draft House bill also incorporates the rule's novel test for when large structural fills -- where an open site is filled in with ash -- will be considered disposal rather than reuse. Under the bill, if a structural fill would involve at least 12,400 tons of ash, in order to avoid disposal standards, the user must show that releases to groundwater, surface water, soil and air are “comparable to or lower than” releases from materials other than coal ash. If Congress approves a coal ash bill and President Obama signs it, the legislation would short-circuit expected litigation from industry and environmentalists that would be aimed respectively at altering the rule's enforcement provisions or forcing EPA to regulate ash as hazardous waste.
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House Panel Floats Draft Legislation
Mar 12, 2015 | E&E Daily News
By Manuel Quiñones
House Energy and Commerce Committee Republicans are circulating new draft legislation to regulate the disposal of coal combustion waste, this time taking into account U.S. EPA's new rule.
The language, much like previous versions of the bill, would create a state-enforced permitting program for coal ash disposal. EPA would be able to step in if states don't act, and the agency could review their permit programs.
However, instead of using municipal solid waste rules under the Solid Waste Disposal Act, as they have in previous years, the bill's backers would use EPA's new rule as a base line.
Because EPA in December decided to regulate coal ash as a nonhazardous waste under Subtitle D of the Resource Conservation and Recovery Act, states have the choice of whether to adopt EPA's rule as their own. Enforcement could be left to citizen lawsuits.
GOP lawmakers, who wanted EPA to avoid a hazardous designation, say legislation is still necessary to clarify requirements and enforcement. They have the backing of coal ash recycling interests and utilities.
"This legislation will bring much-needed certainty to the rules surrounding coal ash," said Rep. David McKinley (R-W.Va.), a longtime sponsor. "The EPA's regulations offer more confusion and no reassurances that President Obama won't change his mind later."
Rep. John Shimkus (R-Ill.), chairman of the Energy and Commerce Subcommittee on Environment and the Economy, is also a top backer of the legislation and is holding a hearing on the draft language next week.
The draft also includes surface water protection requirements, financial assurances for coal ash disposal permits and permitting requirements for inactive dumps that fail to close.
Even though the legislation appears meant to appease environmental groups, which wanted a stronger rule than EPA came up with, Earthjustice attorney Lisa Evans says the draft still doesn't make the cut.
She questioned McKinley's assertion that the Obama administration would make a U-turn on the rule after spending years drafting it. Evans, the key environmental community voice on the issue, said states can soon begin implementing EPA's standards rather than waiting years for the legislation's mandates to kick in.
Evans accused the draft bill of "gutting" EPA's rule instead of complementing it. Gone, for example, would be requirements for the placement of wet ash impoundments.
Previous legislative efforts have died in the Democratic-controlled Senate. But backers hope the GOP takeover of that chamber boosts the bill's chances, whether as a stand-alone bill or as part of a broader package.
EPA has yet to publish the rule in the Federal Register, which needs to happen before it becomes effective and before industry or environmental groups can sue, if they so wish.
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Court Rejects Bid Challenging EPA Approval of Clean Air Act Penalty Alternatives
Mar 12, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
A federal appeals court rejected a move by environmental advocates to limit the Environmental Protection Agency's approval of alternatives to the penalties required under Section 185 of the Clean Air Act when areas miss their deadlines to attain the federal standard for ground-level ozone (Nat. Res. Def. Council v. EPA,, 9th Cir., No. 13-70544, petition rejected3/11/15).
The March 11 decision from the U.S. Court of Appeals for the Ninth Circuit is good news for the major stationary sources of ozone-forming pollutants in the Los Angeles area, who faced the prospect of having to pay the stiff annual, per-ton emissions fees had the court decided against the EPA.
Instead, the court denied the petition seeking review of the EPA's 2012 approval of a rule that allows the South Coast Air Quality Management District, in lieu of levying the penalties, to use funding from federal and state sources and other money it collects to finance projects to curb emissions from mobile sources and promote clean technologies to help achieve the now-revoked one-hour ozone standard.
Petitioners the Natural Resources Defense Council and Communities for a Better Environment brought the action challenging the EPA's authority to approve the SCAQMD's alternative rule.
A similar petition filed by the Medical Advocates for Healthy Air against the EPA is still pending before the court involving an alternative rule the agency approved for the San Joaquin Valley Unified Air Pollution Control District (Med. Advocs. for Healthy Air v. EPA, No. 12-73386, oral arguments 2/12/15; 30 DEN A-14, 2/13/15).
Approval of SCAQMD Rule Called Proper
Here, the Ninth Circuit panel said the EPA's approval of the SCAQMD's Rule 317 was proper. The EPA had “reasonably interpreted CAA Section 172(e) to give it authority to approve programs that are alternative to, but not less stringent than, Section 185 fee programs.”
“The decision brings to a close many years of debate regarding whether it is appropriate, following the revocation of the one-hour standard, to impose Section 185 nonattainment fees on already well-controlled stationary sources,” Robert Wyman, an attorney at Latham & Watkins representing Los Angeles area business groups that filed a brief on behalf of the EPA, told Bloomberg BNA in an e-mail. “It's a great victory for EPA, which established a special task force to consider the issue, and for the California air districts that devoted significant resources to finding a better path forward.”
Wyman said the court decision recognizes that Congress intended for the EPA, in implementing Section 172(e), to respect a state's need to tailor its plan to meet its own unique circumstances.
“We're disappointed in the outcome, and we're exploring options with our clients,” Adrian Martinez, an attorney at Earthjustice who represented the petitioners, told Bloomberg BNA in an e-mail.
Earthjustice's Paul Cort was the lead attorney for the petitioners.
Heather Gange and Sam Hirsch with the U.S. Attorney General's Office represented the EPA.
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See No Climate, Hear No Climate, Speak No Climate...Here We Go Again?
Mar 11, 2015 | Environmental Defense Fund
By Eric Pooley
When news broke this week alleging that officials working for Gov. Rick Scott of Florida – a state that faces devastating impacts from climate change, such as being partially submerged – had unofficially banned use of the terms "climate change" and "global warming" from state documents, I had to check my calendar to see what year this is.
It felt as if we were back in 2003, when the George W. Bush administration was up to the same tricks. A former American Petroleum Institute lobbyist named Philip Cooney, who was then chief of staff in the White House Council on Environmental Quality, made hundreds of edits and deletions to EPA documents.
Bush's White House tried to muzzle the EPA
Cooney's goal, according to a House committee investigation, was to “exaggerate or emphasize scientific uncertainties or to deemphasize or diminish the importance of the human role in global warming.” Cooney insisted on such extreme edits that that EPA decided to eliminate the climate change section from one report entirely.
After New York Times reporter Andrew Revkin broke the news about what was going on, Cooney resigned from the White House – and went to work for Exxon Mobil.
It's not yet clear exactly what happened in Florida. After four former staffers with the Florida Department of Environmental Protection said they'd been told not to use the terms "climate change," "global warming" or "sustainability," and that this ban was widely known, Gov. Scott told reporters this week "it's not true."
The DEP website does include references to climate change, though most are several years old. Meanwhile, at least one group has asked the agency's inspector general to investigate. Other states tried to censor, too
With an overwhelming majority of the American public favoring climate action, skeptical politicians are starting to crab-walk in the direction of climate reality. “I’m not a scientist” is the current favorite dodge and also with Gov. Scott – an attempt to avoid both outright denial and the responsibility to act that comes with recognizing the problem.
But as Emily Atkin reported in Climate Progress, other states where the governors still don’t accept the scientific validity of human-caused climate change have also been pulling out the muzzle.
Pennsylvania’s Department of Conservation and Natural Resources was accused of pulling references to climate change from its website under orders from aides to Governor Tom Corbett. Corbett has since been voted out of office in favor of Gov. Tom Wolf, who understands that climate change is real.
North Carolina’s Department of Environment and Natural Resources was caught doing the same thing. This is the state where the General Assembly in 2012 passed a four-year moratorium on policies that rely on scientific models for sea level rise.
Maybe these states should require environmental officials to scrunch their eyes shut, stick their fingers in their ears and chant "nya-nya-nya." That would surely solve the problem. Enough already
Here’s a prediction: Attempts to expunge the climate problem by executive fiat – to air-brush state websites and muzzle scientists – are on their last legs. So are evasions like “I’m not a scientist.”
Americans are raising the bar on how politicians from both parties talk about this issue. Voters will increasingly reward climate honesty and climate action.
Politicians who don't deliver will find themselves punished at the polls.
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(ACC Mentioned) Anticipating PHMSA's Crude by Rail Rule
Mar 11, 2015 | JD Supra Business Advisor
The Pipeline and Hazardous Materials Safety Administration's much-anticipated crude by rail rule will address over 3,000 comments, spanning a wide range of public opinion on crude by rail safety. PHMSA must address vast differences of opinion on complex issues, such as the timeline for implementing new DOT-111 tank car standards, whether tank car standards and operational restrictions should be tied to the new "high-hazard flammable train" concept and optimal speed restrictions on the shared rail network. Commenters on the proposed rule provided input on these and other issues.
In an Aug. 1, 2014, notice of proposed rulemaking, PHMSA sought comment on proposed new standards for "high-hazard flammable trains," defined as trains carrying "20 or more carloads of a Class 3 flammable liquid."[1] Crude oil and ethanol are the commodities most affected by the rule because they often are carried in high volumes on a single train. PHMSA cited recent high-profile derailments of crude-carrying trains in Lac-Megantic, Canada, Casselton, North Dakota, and Aliceville, Alabama, as prompting the need for regulatory changes to mitigate future incidents.
PHMSA requested comment on proposed revisions to the hazardous materials regulations in three main areas: (1) technical standards for U.S. Department of Transportation-specified rail tank cars used to transport flammable liquids on HHFTs; (2) railroad operational requirements for HHFTs, including routing, braking and speed restrictions; and (3) requirements for shippers to properly test and classify crude oil prior to transportation.
Timeline for DOT-111 Tank Car Standards
Among the most contentious issues is PHMSA's proposed timeline for implementing new standards for the DOT-111 tank car and phasing-out older DOT-111s. Environmentalists and public safety groups want an immediate end to the use of legacy DOT-111s in transporting crude, while industry groups assert PHMSA greatly underestimated the time it will take to implement the new standards. Government investigators have cited the crashworthiness of legacy DOT-111s as a contributing factor in recent derailments and explosions.
PHMSA's proposal would require all new tank cars constructed after Oct. 15, 2015, to meet enhanced regulatory standards, and all legacy DOT-111s used in HHFTs to be retrofitted or phased out, by packing group service as follows: by Oct. 1, 2017, for PG I; by Oct. 1, 2018, for PG II; and by Oct. 1, 2020, for PG III.[2] Because most light crude oil and ethanol shipments are PGs I and II, the proposal arguably requires retrofit or phase-out within two to three years of a final rule.
The timeline drew criticism from all sides of the debate. Environmental groups petitioned the DOT in July 2014 to immediately ban legacy DOT-111s from transporting crude oil by rail, using PHMSA's emergency order authority. Since then, those groups have filed two suits with the Ninth Circuit, claiming first that the DOT failed to act on the petition and, more recently, that the department inappropriately denied the petition.[3] On Jan. 20, 2015, an order by the court mediator stayed the case "until May 12, 2015, or pending publication in the Federal Register of the final tank car standards and phase out of DOT-111 tank cars, whichever occurs first."[4]
Industry groups, however, assert that sufficient numbers of DOT-111s cannot be manufactured or retrofitted within the two-year timeline, given the severe limitations in rail tank car manufacturing and shop capacity. The American Chemistry Council noted in its comments that the current backlog of tank car orders already is causing wait times of "two years from when a tank car is ordered to when it is delivered."[5] The Railway Supply Institute proposed a six-year timeline in which to retrofit or retire legacy DOT-111s, calling it "both aggressive and achievable."[6] The Association of American Railroads and American Petroleum Institute also supported a six-year timeframe. AAR and API proposed prioritizing the least sturdy of the legacy cars first (i.e., retrofitting the nonjacketed, non-CPC-1232 cars within the first three years), followed by nonjacketed CPC-1232 cars and supported prioritizing retrofits of tank cars carrying crude oil and ethanol.[7]
Linking Tank Car Design to HHFTs
Many groups criticized PHMSA's proposal to tie new tank car standards to only those cars used in an HHFT. Industry groups noted that shippers have no control over how a railroad will arrange and rearrange tank cars within a "manifest train" (i.e., one with mixed cargo) and that the HMR does not otherwise link container design to train composition.[8] AAR stated, "It would be unprecedented for PHMSA to adopt tank car specifications dependent on the amount of cars in a train."[9] Industry groups, including AAR, API, ACC and RSI, also noted the proposed rule would impact every DOT-111 tank car, not just those used on HHFTs, due to the impracticality of separating shipments with various types of DOT-111s.[10]
Environmental groups and the National Transportation Safety Board also support abandoning the HHFT limitation on tank car requirements, but for a much different reason. They claim the proposed rule would allow legacy DOT-111s to continuing transporting Class 3 flammable liquids, so long as they are on non-HHFTs (i.e., trains carrying less than 20 carloads of Class 3 liquids).[11]
Linking Operating Restrictions to HHFTs
Similarly, industry groups noted PHMSA's proposed operating restrictions for HHFTs would affect negatively other cargo aboard those trains, even though PHMSA has not provided any justification to increase regulation of the other cargo. The Institute of Makers of Explosives, for example, "are not shippers of … Class 3 flammable liquids," but expressed concerned that restrictions on HHFTs will impact non-Class 3 cars placed on an HHFT by the railroads, leaving them "no viable options to avoid … HHFT service restrictions" for their consigned cargo.[12] For this reason, industry groups argue the costs of the rule are "dramatically underestimated."[13]
Some commenters criticized PHMSA's choice to use the HHFT concept at all, especially given that PHMSA seems most concerned with the dramatic rise in "unit trains" (i.e., trains carrying a single commodity, typically crude or ethanol, and usually in larger quantities of 50 to 120 cars per train).[14] The American Fuel and Petrochemical Manufacturers suggested limiting the rule to "petroleum crude oil and ethanol transported in unit trains (defined as 75 cars or more)."[15] The ACC similarly proposed limiting the final rule to crude oil and ethanol "unit trains," given PHMSA's concerns about "unique" risks of those commodities on "unit trains."[16]
Speed Restrictions
Another controversial proposal is the speed restriction of 40 mph for HHFTs with tank cars not meeting enhanced standards.[17] AAR member railroads already agreed with the DOT to reduce operating speeds to 40 mph in high-threat urban areas (HTUAs) when a legacy DOT-111 tank car is used on an HHFT carrying crude and to 50 mph everywhere for trains with over 20 loads of any hazardous materials (not just Class 3 flammable liquids).[18]
Uniformly, industry groups oppose any further limiting of the speed limits, arguing that slower speeds for HHFTs will impact all rail traffic on the railways, including for example, grain shipments, passenger trains and chemical industry shipments. AAR likened speed limits on rail to "traveling on a two-lane highway" except "much worse because the opportunities to pass are much more constrained."[19] Industry groups also noted there is no evidence that operating speeds caused recent derailments. The most significant recent incident — the derailment at Lac-Megantic, Canada, which killed 47 people — was not caused by operating speed, but rather by a conductor leaving the train unsecured and unattended atop a hill.
Environmental and safety groups, on the other hand, favor imposing stricter speed limits on all crude by rail shipments, with all such shipments routed away from populated areas.[20]
Crude Oil Characterization and Classification
PHMSA's proposal requires offerors of crude oil shipments to have in place systems to accurately characterize and classify crude prior to shipment. API's comments assert that the new ANSI/API voluntary standard for "Classifying and Loading of Crude Oil into Rail Tank Cars" (Sept. 2014), known as "Recommended Practice 3000" or "RP 3000," should suffice to satisfy the rule's testing requirements.[21] RP 3000 requires a documented sampling and testing program and both initial and ongoing testing of crude oil prior to offering it for rail transport.[22]
However, AFPM — an industry group focused on petroleum refining and petrochemical manufacturing — opposed the sampling and testing program altogether, stating it has "no safety benefit" and would be "unnecessary, unduly burdensome and confusing."[23] AFPM correctly pointed out that under current regulations, there are no meaningful differences between PG classifications of crude oil, in terms of the tanks cars authorized for use, required emergency response communications, and marking, labeling and placarding of rail cars.[24] AFPM did not mention the RP 3000 standard, but rather claimed there is no need for a federally mandated testing program because crude has well-understood properties and the PG assignment is entirely "immaterial" to compliance with the HMR's safety provisions.[25]
Conversely, environmental and safety groups want PHMSA to strengthen its proposed testing requirements to be less subjective and more uniform, instead of allowing individual oil producers to decide what tests and what frequency of testing suffice under the rule.[26] Additionally, they want PHMSA to require vapor pressure as a mandatory measurement of crude oil volatility.[27]
Track Maintenance and Human Error
Equipment suppliers, petroleum industry groups and environmentalists alike claimed that PHMSA's proposal conspicuously lacks a key, cost-effective solution — requiring railways to address longstanding deficiencies in the track itself and to lower the potential for operator error.[28] PHMSA acknowledged that "broken rails, track geometry, and human factors … are leading causes of derailments" and that broken rails were responsible for nearly eight times as many derailments as the average for all other causes.[29] However, PHMSA claimed these issues are adequately addressed in other DOT initiatives and noted the purpose of this rule is "mitigating the damages of train accidents," not necessarily preventing train accidents.[30]
By not addressing the cost-effectiveness of such obvious prevention measures, however, PHMSA's rule will be much more susceptible to attack in litigation. AAR seemed to be the only major constituency approving of this approach, arguing PHMSA should not mandate more track inspections, but rather defer to the Rail Safety Advisory Committee's findings on the issue.[31]
Cross-Border, Canadian Issues
Many industry groups, including AAR, RSI and the Canadian Association of Railway Suppliers, emphasized the need for PHMSA to ensure its rules on railway safety are harmonized with that of Canada, which is revising its transportation of dangerous goods regulations now. Harmonization of the HMR and TDG is key to ensuring railways can operate consistently and efficiently across national borders.
PHMSA also drew a great deal of attention from commenters with its prediction about the future of Canadian tar sands transportation. PHMSA estimated "23,000 cars will be transferred to Alberta tar sands service" and stated "no cars will be retired as a result of th[e] rule."[32] API and RSI, however, disputed such conversion could occur without significant retrofits of existing DOT-111s, to enable heating of viscous fuel.[33] Environmental groups also took issue with PHMSA's prediction because they oppose shipping diluted bitumen (dilbit) in DOT-111s, saying it "creates unacceptable safety hazards" and is "extremely difficult to clean up after a spill."[34] They asked PHMSA to explain what "tar sands service" means and to ensure that rail transport of dilbit and heavy oils are covered by the new rule.[35]
Finalizing the Rule
PHMSA recently announced it will delay publication of a final crude by rail rule from March 2015 to May 2015. On Feb. 5, 2015, the Office of Management and Budget received from PHMSA a final rule, which now will undergo final executive review and approval at OMB, a process that may take several months to complete. When published, the rule is sure to draw more stakeholder engagement and potential litigation from various groups on these key safety issues.
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Phaseout of Older Crude-by-Rail Cars Feasible in Five to Seven Years, Makers Say
Mar 12, 2015 | BNA Daily Environment Report
By Rachel Leven
It is achievable and beneficial to phase out older tank cars from flammable liquids transport service within five to seven years, according to documents provided to the White House in a recent meeting with rail tank car manufacturers.
The meeting that was requested by the Greenbrier Cos. took place March 4, although related records were posted the week of March 9. It centered on a Pipeline and Hazardous Materials Safety Administration rule that would implement tank car and operational control requirements for rail transport of certain flammable liquids (RIN 2137–AE9).
Petroleum companies and ethanol producers also have held meetings with the White House on the rulemaking since its Office of Management and Budget received the final rule for review on Feb. 5.
“Because of the aggressive timelines that the NPRM [notice of proposed rulemaking] mandates, shippers, railroads and contract shop operators will have incentives to improve car scheduling, movement, storage and maintenance practices,” a Cambridge Systematics Inc. summary provided at the Greenbrier meeting said. “These improved practices will last far beyond the timing of the proposed modifications.”
PHMSA formally proposed the rule in August 2014 following a series of high-profile derailments of trains carrying crude oil. These derailments, which have increased along with the growing use of rail to transport oil, have threatened drinking water supplies, destroyed property and, in one case, led to 47 human deaths.
Last-Ditch Efforts
The meetings allow the various industries to have a final say regarding the appropriate or effective steps the final rule should include. Several railroads have also met with the White House to urge the administration not to include electronically controlled pneumatic brake requirements in the final rule (47 DEN A-12, 3/11/15).
The summary and PowerPoint presentation by the transportation consulting group Cambridge Systematics sought to counter a Railway Supply Institute-funded report that cautioned PHMSA regarding the negative economic impact of the rule as proposed (232 DEN A-23, 12/3/14).
The Railway Supply Institute's report, which was released in December 2014, said PHMSA's rule would make the economy less efficient and impose burdens that wouldn't otherwise be imposed. However, the Cambridge consulting groups said there were several flaws with how the insitute report calculated tank car retirements and the capacity of tank car manufacturers to retrofit or upgrade tank cars.
Public Opinion Cited
Washington Post and National Geographic editorials and articles on the PHMSA proposal and need for tank car standards were also submitted to the White House during the March 4 meeting.
“The Transportation Department last week sent the White House a proposal for a comprehensive package of new rules,” the Post's editorial board said in a May 4, 2014, editorial referring to the PHMSA proposed rule sent to the White House for review (85 DEN A-3, 5/2/14).
“The administration has sat on important regulations in past election years,” the board said. “It must not do so this time.”
Representatives of Greenbrier, which makes rail cars, and Amsted Rail Co., which makes wheels, axles and other rail car components, attended the meeting. Ethanol producers, including Growth Energy, and petroleum companies, including Exxon Mobil Corp., attended separate White House meetings on Feb. 13 and March 4.
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Mar 12, 2015 | The New York Times - Op-Ed
By Marcus Stern
A CSX freight train ran off the rails last month in rural Mount Carbon, W.Va. One after another, exploding rail cars sent hellish fireballs hundreds of feet into the clear winter sky. Gov. Earl Ray Tomblin declared a state of emergency, and the fires burned for several days.
The Feb. 16 accident was one of a series of recent fiery derailments highlighting the danger of using freight trains to ship crude oil from wellheads in North Dakota to refineries in congested regions along America’s coastlines. The most recent was last week, when a Burlington Northern Santa Fe oil train with roughly 100 cars derailed, causing at least two cars, each with about 30,000 gallons of crude oil, to explode, burn and leak near the Mississippi River, south of Galena, Ill.
These explosions have generally been attributed to the design of the rail cars — they’re notoriously puncture-prone — and the volatility of the oil; it tends to blow up. Less attention has been paid to questions surrounding the safety and regulation of the nation’s aging network of 140,000 miles of freight rails, which carry their explosive cargo through urban corridors, sensitive ecological zones and populous suburbs.
Case in point: The wooden trestles that flank the Mobile and Ohio railroad bridge, built in 1898, as it traverses Alabama’s Black Warrior River between the cities of Northport and Tuscaloosa. Oil trains rumble roughly 40 feet aloft, while joggers and baby strollers pass underneath. One of the trestles runs past the Tuscaloosa Amphitheater. Yet when I visited last May, many of the trestles’ supports were rotted and some of its cross braces were dangling or missing.
The public has only one hope of finding out if such centenarian bridges are still sturdy enough to carry these oil trains. Ask the railroads. That’s because the federal government doesn’t routinely inspect rail bridges. In fact, the government lacks any engineering standards whatsoever for rail bridges. Nor does it have an inventory of them.
The only significant government intrusion into the railroads’ self-regulation of the nation’s 70,000 to 100,000 railroad bridges is a requirement that the companies inspect them each year. But the Federal Railroad Administration, which employed only 76 track inspectors as of last year, does not routinely review the inspection reports and allows each railroad to decide for itself whether or not to make repairs.
The railroad that operates the Tuscaloosa bridge, Watco Companies, and the Federal Railroad Administration assured me it was safe. But shortly after my reporting was published on the websites of InsideClimate News and The Weather Channel, Watco announced that it would make $2.5 million in repairs. And the Department of Transportation’s inspector general said it would begin a review of the F.R.A.’s oversight of rail bridges.
Even where federal engineering standards do exist, it’s unclear how much safety they provide. For instance, federal track safety standards allow 19 out of 24 crossties to be defective along any 39-foot stretch of the lowest grade of track, where the speed limit is 10 m.p.h. These crossties stabilize the rails. On the best of tracks, which have a speed limit of 80 m.p.h., the standards allow half of the crossties to be decayed or missing.Continue reading the main story Continue reading the main story Continue reading the main story
Five oil trains have exploded in the United States in the last 16 months. Miraculously, there have been no deaths. Canada, however, hasn’t been so lucky. In July 2013, an oil train carrying North Dakota oil burst into flames in the Quebec town of Lac-Mégantic, about 10 miles from the Maine border, killing 47 people.
After that accident, federal officials promised to develop sweeping new regulations to make sure nothing like it happens in the United States. In the interim, the Department of Transportation issued an emergency order requiring railroads to get federal permission before leaving trains unattended with their engines running, a major factor in the Lac-Mégantic explosion. And the railroads agreed to a number of voluntary steps, including keeping oil trains under 50 m.p.h.
But more than a year and a half after Lac-Mégantic, new regulations have yet to be finalized as the railroad and oil industries argue about various proposed provisions. The emergency order didn’t end the practice of railroads’ leaving oil trains on tracks with their engines running; it simply required companies to have a written plan for doing so. And without regulations, reporting or penalties, the public has only the railroads’ word they are complying with the 50 m.p.h. speed limit.
For trackside communities, the stakes are obviously high. New hydraulic fracturing technology has allowed oil developers to tap vast amounts of deeply buried oil in parts of North Dakota, Montana and Canada. Without significant new pipeline capacity, the only way to get the oil to refineries is by train. Rail car shipments of crude oil rose from 9,500 in 2008 to more than 400,000 last year.
To protect communities and the environment, the Transportation Department needs to act quickly to require more resilient rail cars, improve the safety of rail infrastructure and operations, and reduce the volatility of oil at the wellhead, before it is loaded onto trains.
Instead, the debate over regulations inches along as oil trains continue to roll through downtown Philadelphia, suburban Chicago and along the Hudson River in New York and the Schuylkill in eastern Pennsylvania, passing close to a nuclear power plant.
Before leaving office last year, Deborah A. P. Hersman, the chairwoman of the National Transportation Safety Board, questioned whether industry representatives and regulators had a tombstone mentality when it came to oil trains. If nobody dies, she suggested, there’s no pressure to act. So far, the tombstones have all been in Canada.
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Crude Oil Train Shipments Dwindle in California, For Now
Mar 11, 2015 | The Sacramento Bee
By Tony Bizjak
A year ago, California officials nervously braced for an influx of milelong trains carrying volatile crude oil to refineries in the Valley and on the coast – trains similar to the one that exploded two years ago in Canada, killing 47 people.
The trains never arrived. Although tank cars full of oil now roll daily through cities in the Midwest and East, provoking fears of crashes and fires, the number of oil trains entering California has remained surprisingly low, state safety regulators say, no more than a handful a month. In recent weeks, they appear to have dwindled to almost nothing.
The reasons appear to be mainly economic.
“Crude oil shipments from out of state have virtually stopped,” said Paul King, rail safety chief at the California Public Utilities Commission. “Our information is that no crude oil trains are expected for the rest of this month.” Related Sacramento area Congress members call on feds to upgrade oil train safety now
Most notably, the BNSF Railway recently stopped running a 100-car train of volatile oil from the Bakken region of North Dakota through the Feather River Canyon and midtown Sacramento to the Bay Area. The trains, several a month, carried an estimated 3 million gallons of fuel each.
Bakken oil, a lighter type of crude, similar to gasoline, has gained a fearsome reputation since it entered the national scene a few years ago. A string of Bakken train explosions around the country prompted the federal government to issue a warning last year about the oil’s unusual volatility and launch efforts to write stiffer regulations on rail transport, including a proposal to require sturdier tank cars for oil.
Two more Bakken train derailments and explosive fires recently in West Virginia and Illinois triggered a new round of complaints that the federal government is dragging its heels in finalizing those regulations.
The BNSF train through Sacramento was believed to be the only train in California carrying 100 cars of Bakken oil. PUC rail safety deputy director King said his commission’s rail monitors have been told by owners of a Richmond oil transfer station in the Bay Area that refiners stopped the shipments in November as global oil prices dropped.
California Energy Commission fuels specialist Gordon Schremp said lower prices for other types of oil have made Bakken marginally less marketable in California, although that could easily change in the future.
Other projects, like a Valero Refining Co. plan to run two 50-car oil trains daily through Sacramento beginning this spring to its Benicia plant, have not yet gotten off the ground, in part because of political opposition. Under pressure from state officials, including Attorney General Kamala Harris, Benicia recently announced it is redoing part of its environmental and risk analysis of the Valero rail project. Valero has said it intends to ship lighter fuels, but has declined to say whether those will be Bakken.
State safety officials said the slowdown provides a bit more time to provide hazardous-materials training for more firefighters, as well as to put together a state rail-bridge inspection program and to upgrade disaster and waterway spill preparedness. But state officials said they still feel like they’re playing catch-up as they prepare for existing and future potential rail hazards.
“This apparent reprieve may seem helpful, but we still have substantial amounts of ... hazardous materials traveling across California’s rail lines,” said Kelly Huston, deputy director of the state Office of Emergency Services. “It only takes one train to create a major disaster.”
Oil prices have begun rising again, and state officials say they expect Bakken shipments to Richmond and potentially elsewhere to be back on track at some point. “We don’t have any concrete info about when it will resume,” the PUC’s King said. “When prices come up, it is likely to resume, and that could be in months.”
Federal emergency rules require railroads to report to states when they run trains carrying more than 1 million gallons of Bakken crude, and then again when that amount changes by 25 percent or more. BNSF sent the state Office of Emergency Services a brief notice on Wednesday acknowledging it had not shipped more than 1 million gallons of Bakken on any train in the last week. The notice does not say how long ago the shipments stopped or when they may resume.
BNSF officials have contended in letters to the state that shipping information is proprietary and should be kept secret. A BNSF spokeswoman declined this week to discuss shipments with The Sacramento Bee, writing in an email, “Information regarding hazardous material shipments is only provided to emergency responders.”
King of the PUC said his monitors estimate that eight or more non-Bakken crude oil trains had been entering the state monthly from Canadian and Colorado oil fields recently, headed to refineries or transfer stations. The Canadian oil, called tar sands, is not considered as explosive as Bakken, but two tar-sands trains derailed and exploded in recent weeks in Ontario, creating fires that lasted several days.
The national concern about crude oil rail shipments follows a boom in domestic oil production, notably in North Dakota, where hydraulic-fracturing advances have freed up immense deposits of shale oil. Lacking pipeline access, North Dakota companies have turned to trains to ship the oil mainly to East and Gulf Coast refineries and to Washington state. Crude by rail shipments in the United States skyrocketed from 9,500 carloads in 2008 to 436,000 in 2013, according to congressional data.
California continues to produce a sizable amount of its own oil in Kern County and receives marine shipments from Alaska and foreign sources. Still, a recent state energy-needs analysis estimates the state could receive as much as 23 percent of its oil via train or barge from continental sources, including North Dakota, Canada, Texas and other Western states, in the coming years. That estimate is based on plans by refineries in Benicia, San Luis Obispo and Kern County to build rail facilities that can accommodate large crude transports.
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