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(ACC Mentioned) Senate, House Bills Introduced to Block EPA Ozone Proposal
Mar 18, 2015 | Oil and Gas Journal
By Nick Snow
US Senate and House members introduced bills to block the US Environmental Protection Agency’s proposal to lower ground-level ozone limits as the plan’s comment period ended and the House Science, Space, and Technology Committee held a hearing to examine its implications. -
Administration Has No Position on Udall-Vitter Bill, EPA Says
Mar 18, 2015 | The Hill - Reg Watch
By Lydia Wheeler
While the Environmental Protection Agency said it does not have a position on the bill Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced to reform the nation’s chemical laws, an agency official told lawmakers at a hearing Wednesday that the bill is consistent with the six principals the Obama administration set in 2009 to reform the 1976 Toxic Substances Act. -
Our Bill is the Only Chemical Reform Bill 'On the Playing Field,' Vitter Says
Mar 18, 2015 | The Hill - Reg Watch
By Lydia Wheeler
Sen. David Vitter (R-La.) said the bill he’s co-sponsored with Sen. Tom Udall (D-N.M.) to reform the nation’s chemical laws is the only legislation “on the playing field.” -
GOP, Boxer Clash on Political Viability of TSCA Reform
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Republican leaders of the Senate Environment and Public Works Committee made one thing plain this morning: A bipartisan plan by Sens. Tom Udall and David Vitter is the only realistic chance of updating the 1976 Toxic Substances Control Act. -
Six AGs Support Udall-Vitter TSCA Bill
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Six state attorneys general are supporting the bill from Sens. Tom Udall and David Vitter that would update the Toxic Substances Control Act, countering the opposition from several other states that say it would preempt their ability to limit and enforce chemicals. -
Bonnie Lautenberg Urgest Compromise on TSCA
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The widow of the Sen. Frank Lautenberg urged senators to reacha a compromise on updating the Toxic Substances Control Act, which she said is an even more important legacy to the late New Jersey Democrat than his success in banning smoking on airplanes. -
Lautenberg's Widow, Udall Battle Boxer Over TSCA Bill
Mar 18, 2015 | E&E - Greenwire
By Sam Pearson
Two senators who unveiled a bipartisan chemical safety bill last week and the widow of their former Democratic colleague took the proposal before the Senate Environment and Public Works Committee this morning but quickly faced criticism from Sen. Barbara Boxer (D-Calif.) and other opponents. -
Asbestos Seen As TSCA Reform Test For EPA's Power To Ban Chemicals
Mar 18, 2015 | InsideEPA
By Bridget DiCoso
Newly unveiled Senate bills to overhaul the Toxic Substances Control Act (TSCA) are highlighting EPA's inability to ban asbestos under the current law, making the potential for an asbestos ban a key test for the extent to which reform legislation should give the agency new authority to prohibit harmful substances from the marketplace. -
We Need TSCA Reform Now
Mar 18, 2015 | The Hill - Congress Blog
By John Musella
There are lots of great things about California—amazing beaches, expansive parks, Hollywood, and Disneyland. But it’s not all surfing and celebrity-watching. -
Don’t Let Another Generation Grow Up Under a Failed Toxics Law
Mar 18, 2015 | The Hill - Congress Blog
By Lynn Goldman
When I first testified before Congress on the Toxic Substances Control Act (TSCA), it was 1994 and the flaws in the law were already glaring. -
Don't Close the Door on Open Science
Mar 18, 2015 | The Hill - Pundits Blog
By Amanda D. Rodewald,
With the complex challenges facing our planet, never have we needed science more. -
The Crude Oil Export Ban is a Relic of Flawed Policy
Mar 18, 2015 | The Hill - Pundits Blog
By William O'Keefe
Forty years ago, Congress passed an energy policy act that banned the export of crude oil. It did not ban the export of products like gasoline and diesel oil. -
Dems to Reintroduce 'Frac Act,' Other Drilling Bills
Mar 18, 2015 | E&E - Energywire
By Mike Soraghan
Democrats are reintroducing four bills that would increase federal regulation of oil and gas drilling, though passage remains unlikely. -
OVERNIGHT ENERGY: Republicans Attack Ozone Rule
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
Tuesday was the last day to submit formal comments on the Environmental Protection Agency's (EPA) ozone reduction proposal, and Republicans took advantage of it to register their complaints. -
Obama Administration Wants More Renewable Energy, Tighter Pollution Controls on Public Lands
Mar 18, 2015 | The Washington Post
By Joby Warrick
The Obama administration will seek tougher standards for companies extracting oil, gas and coal on taxpayer-owned land during its remaining months in office, even as it pushes for expanded solar and wind projects,Interior Secretary Sally Jewell said Tuesday. -
D.C. Circuit Stays Suit Over EPA's GHG Reporting Rule
Mar 18, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has granted the American Petroleum Institute's (API) unopposed motion to delay litigation the group filed challenging EPA's greenhouse gas (GHG) reporting rules for the oil and gas sector, while the agency weighs API's administrative petition for reconsideration of portions of the 2010 rule. -
Start Beefing Up Grid Now for Clean Power Plan Impacts, Consultants Say
Mar 18, 2015 | E&E - Energywire
By Peter Behr
The tight deadlines of U.S. EPA's proposed Clean Power Plan would be easier to meet if transmission developers and grid planners get a head start on strategic power line projects that anticipate coal plant retirements, analysts at the ICF International consulting firm said yesterday. -
Legal Icon Calls EPA's Power Plant Rule An 'Unconstitutional Trifecta'
Mar 18, 2015 | E&E - Climatewire
By Scott Detrow
How crucial has Harvard Law professor Laurence Tribe's opposition to U.S. EPA's Clean Power Plan become for the congressional Republicans who oppose the unprecedented new carbon emission rules? -
Coal-Fueled Electric Co-Ops Push Back on EPA Power Plan
Mar 18, 2015 | E&E - TV
What impact will U.S. EPA's Clean Power Plan have on the country's coal-dependent electric cooperatives? -
EPA Starts Reviewing 50K Comments on Hot-Button Ozone Rule
Mar 18, 2015 | E&E - Greenwire
By Amanda Peterka
U.S. EPA's proposed tightening of the national ozone standard drew more than 50,000 public comments, many focusing on what the science says is an acceptable exposure level of the pollutant. -
Court Finds EPA Illegally Approved PCB Task Force In Lieu Of State TMDL
Mar 18, 2015 | InsideEPA
By Lara Beaven
A federal district court has ruled that EPA unlawfully approved a Washington state task force to address polychlorinated biphenyls (PCBs) in the Spokane River instead of ensuring the state developed a total maximum daily load (TMDL) waterbody cleanup plan -- though the court found EPA does not yet have to step in with its own TMDL. -
EPA Eyes Broader Use Of Guide To Cut Emissions From Existing Drill Sites
Mar 18, 2015 | InsideEPA
By Stuart Parker
EPA's top air official is asking states if they plan broader use of agency guidelines for cutting volatile organic compounds (VOCs) at existing drilling operations -- a measure that is likely to have a co-benefit of also reducing methane, the potent greenhouse gas (GHG) -- than in the air quality non-attainment areas for which it is intended. -
Greens Want Clinton Emails on Keystone
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
An environmental activist group is filing a request for former Secretary of State Hillary Clinton’s private emails regarding the Keystone XL pipeline. -
Refiners Group Wants Broader Approach to Crude-By-Rail Safety
Mar 18, 2015 | Fuel Fix
By Jennifer A. Dlouhy
Federal regulators seeking to boost the safety of moving oil by rail should focus on improving the integrity of the nation’s train tracks, not just the tank cars that carry crude, a top refining industry representative says. -
At White House, Oil Sands Group Stands By Embattled Tank Cars Used to Haul Crude
Mar 18, 2015 | E&E - Energywire
By Blake Sobczak
A group of Canadian oil sands producers is pushing to keep a 2011 rail tank car standard in place despite a string of recent accidents that have stoked concerns about the design's integrity.
Industry and Association News - There are no clips to report at this time.
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Energy and Environment News
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(ACC Mentioned) Senate, House Bills Introduced to Block EPA Ozone Proposal
Mar 18, 2015 | Oil and Gas Journal
By Nick Snow
US Senate and House members introduced bills to block the US Environmental Protection Agency’s proposal to lower ground-level ozone limits as the plan’s comment period ended and the House Science, Space, and Technology Committee held a hearing to examine its implications.
The bills—which Sens. Joe Manchin (D-W.Va.) and John Thune (R-SD) and Reps. Pete Olson (R-Tex.) and Robert E. Latta (R-Ohio) offered on Mar. 17—would bar EPA from proposing a National Ambient Air Quality Standard lower than the 75 ppb established in 2008 until at least 85% of US counties that do not meet that limit currently come into compliance.
The bills were introduced on the final day that EPA accepted comments on its Nov. 25, 2014, proposal to lower the NAAQS limit to a 65-70 ppb range after an earlier proposal for a 60 ppb limit met fierce resistance. The measures also would require EPA to use direct air monitoring and consider the costs and feasibility of a lower NAAQS standard under the federal Clean Air Act.
“Placing new, costly regulations on states when they have not had sufficient time to comply with the existing standards is unfair,” said Manchin, an Energy and Natural Resources Committee member. “Lowering the ozone standard would cost states billions of dollars and thousands of good-paying jobs.”
Olson, who introduced a similar bill, HR 5505, with Latta and 22 Republic and 2 Democratic cosponsors on Sept. 17, 2014, said, “America has made important gains in air quality over the last 30 years and will continue down this path, but this new level puts most of America out of compliance, putting jobs and economic development at risk.”
‘Economic shambles’
Oil and gas associations and other business groups welcomed the measures. “The facts are clear: The current standards protect our environment and will continue improving air quality for decades,” said Howard Feldman, the American Petroleum Institute’s senior director of regulatory and scientific affairs. “We need to let the current standards continue working before moving the goalposts.”
American Fuel & Petrochemical Manufacturers Pres. Charles T. Drevna, meanwhile, said, “Lowering the current ozone NAAQS would do very little to improve the environment and leave communities across the US in economic shambles. Many counties are having difficulty achieving compliance or are just beginning to implement the existing standard.”
America’s Natural Gas Alliance Executive Vice-Pres. Frank J. Macchiarola called the bills “commonsense ozone legislation that creates a balanced approach toward cleaner air while allowing for continued economic growth.”
The American Chemistry Council said in a statement, “Their bills will help ensure that manufacturers eager to invest in the US have a clear regulatory process and cost-effective, feasible standards. It’s a commonsense approach that lets local economies grow even as air quality continues to improve.”
The National Association of Manufacturers, meanwhile, submitted comments on behalf of itself and 29 other associations regarding EPA’s latest NAAQS proposal. National Economic Research Associates said in a recent update of a July 2014 study commissioned by NAM that EPA’s proposed 65 ppb limit could reduce US gross domestic product by $140 billion/year and create $1.1 trillion in compliance expenses from 2017 to 2040 (OGJ Online, Mar. 2, 2015).
“We hope that EPA not only listens to the 30 commenting organizations representing businesses in nearly every sector of the economy that employ millions of workers, but also the governors and environmental agencies from nearly half the states in the union who sent letters urging the agency to retain the existing standard,” NAM Vice-Pres. of Energy and Resource Policy Ross Eisenberg said on Mar. 17.
Local consequences
As the proposal’s comment period closed, witnesses also expressed concerns to the House Science, Space, and Technology Committee about the plan’s potential impacts. National Black Chamber of Commerce Pres. Harry C. Alford said that while nationwide consequences described in NERA’s latest research are important, EPA’s latest proposal could jeopardize progress in communities such as Baton Rouge, La., which finally achieved compliance with the 75 ppb standard in April 2014.
Alford said the local Chamber of Commerce worked with four chemical companies during that period that were considering significant investments there. “Unfortunately, all four later decided to search elsewhere,” he said in his written testimony. “The companies all indicated that EPA’s ozone proposal with the threat of the ozone standard being lowered and the area falling back into nonattainment influenced their decisions to pull the plug on the projects in the Baton Rouge area.”
Raymond J. Keating, chief economist for the Small Business & Entrepreneurship Council and the Center for Regulatory Solutions, said small businesses would be hit hardest by EPA’s proposed NAAQS regulations. “Indeed, the proposed ozone rule not only has the potential to be ‘the most expensive regulation’ ever enacted by the federal government in US history, [but] it will be one that severely impinges on entrepreneurship and economic freedom,” he warned in his written testimony.
Eldon Heaston, executive director and Air Quality Office for the Mojave Desert and Antelope Valley Air Quality Management Districts in California, said in his written testimony that EPA’s proposal, especially at its lower level, potentially could turn all of Southern California into an all-electric zone to meet Clean Air Act requirements.
But Mary D. Rice, an adult pulmonologist and critical care physician at Beth Israel Deaconess Medical Center and Harvard Medical School in Boston who testified on the American Thoracic Society’s behalf, said ozone exposures in the 60-70 ppb range adversely affect human beings from infants to the elderly.
“There is abundant and consistent scientific evidence demonstrating that ozone pollution—at levels permitted by the current standard—is damaging to lungs and contributes to illness and death,” she told the committee in her written testimony.
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Administration Has No Position on Udall-Vitter Bill, EPA Says
Mar 18, 2015 | The Hill - Reg Watch
By Lydia Wheeler
While the Environmental Protection Agency said it does not have a position on the bill Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced to reform the nation’s chemical laws, an agency official told lawmakers at a hearing Wednesday that the bill is consistent with the six principals the Obama administration set in 2009 to reform the 1976 Toxic Substances Act.
Those principals include reviewing chemicals against a safety standard that’s based on sound science; forcing manufacturers to provide EPA with the necessary information to determine if a new chemical is safe; taking into account sensitive subpopulations – children, pregnant women and the elderly; assessing priority chemicals in a timely manner; assuring transparency and giving EPA a sustained source of funding.
Senate Environment and Public Works Chair Jim Inhofe (R-Okla.) asked EPA Assistant Administrator James Jones how many chemicals the agency has regulated under TSCA in the current administration.
“Zero,” he said.
“How many chemicals has EPA regulated since 1990?” Inhofe asked.
“Zero,” Jones said again.
During the hearing, Sen. Cory Booker (D-N.J.) said he’s concerned that the Udall-Vitter bill takes away states’ rights to enact their own chemical laws and wants to see language added to the bill that minimizes the use of animals to test chemicals.
Jones said the EPA is invested in pursuing alternatives to animals testing and will look at how the preemption of states weighs into the overall bill.
But during questioning from Sen. Ed Markey, who introduced competing chemical reform legislation with Sen. Barbara Boxer, Jones agreed that under the Udall-Vitter bill it could take EPA more than 100 years to finish regulating thousands of chemicals in commerce if the agency stuck to the minimum pace requirements.
He also said Markey was correct when he said the Udall-Vitter bill would require EPA to do separate analyses when there are multiple products that contain the same chemical.
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Our Bill is the Only Chemical Reform Bill 'On the Playing Field,' Vitter Says
Mar 18, 2015 | The Hill - Reg Watch
By Lydia Wheeler
Sen. David Vitter (R-La.) said the bill he’s co-sponsored with Sen. Tom Udall (D-N.M.) to reform the nation’s chemical laws is the only legislation “on the playing field.”
“Our co-sponsors, Democrats and Republicans, continue to grow,” he said during a Senate Environment and Public Works Committee hearing on Wednesday. “The Frank R. Lautenberg Chemical Safety for the 21st Century Act is the only realistic shot we have at reforming a very outdated and broken system.”
Committee Chair Jim Inhofe (R-Okla.) said TSCA will not be reformed without bipartisan support and input from stakeholders. Though opponents have accused the Udall-Vitter bill of being legislation generated by industry, Inhofe noted that no one from industry was testifying at Wednesday’s hearing.
“Not because no one from industry supports the bill,” he said. “The majority has chosen witnesses to focus on the health and environmental impacts of the bill.”
But Sen. Barbara Boxer (D-Calif.), who introduced a competing bill with Sen. Ed Markey (D-Mass.) to reform the 1976 Toxic Substances Control Act (TSCA), said she’s never seen such opposition to the Udall-Vitter bill.
She then had her staff stand will posters listing all the of the opposing groups.
“I know you can’t read them all, but there are 450 organizations,” she said.
A few of the names she read aloud included the Environmental Working Group, Safer Chemicals, Healthy Families, the American Nurses Association and Physicians for Social Responsibility.
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GOP, Boxer Clash on Political Viability of TSCA Reform
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Republican leaders of the Senate Environment and Public Works Committee made one thing plain this morning: A bipartisan plan by Sens. Tom Udall and David Vitter is the only realistic chance of updating the 1976 Toxic Substances Control Act.
“Major environmental laws do not get passed without bipartisan support, and Frank recognized that,” Chairman Jim Inhofe said at a hearing while referencing the late Sen. Frank Lautenberg, whom Udall and Vitter named their TSCA bill after. “Any partisan TSCA reform effort will fail.”
Vitter — whose bill with Udall has nine co-sponsors in each party so far — said it is the “only bipartisan bill on radar on the playing field [and] is the only realistic shot we have at reforming a very broken and dysfunctional system.”
EPW ranking member Barbara Boxer — who has an alternative TSCA bill with Ed Markey and Bernie Sanders — had her staff hold up eight large blue posters behind the podium listing more than 400 groups that she said oppose the Udall and Vitter bill, in part for preempting toxics laws in California and other states.
“I’ve never seen in all the years I’ve been here such opposition to legislation,” Boxer said, noting that the critics include eight state attorneys general, the Breast Cancer Fund, United Steelworkers and several environmental groups. “Who do you believe more? Politicians or the Breast Cancer Fund? I think you know the answer.” -
Six AGs Support Udall-Vitter TSCA Bill
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Six state attorneys general are supporting the bill from Sens. Tom Udall and David Vitter that would update the Toxic Substances Control Act, countering the opposition from several other states that say it would preempt their ability to limit and enforce chemicals.
The Udall-Vitter plan would create “a national program in an effort to eliminate the piecemeal approach developed under the TSCA,” the AGs wrote Environment and Public Works Chairman Jim Inhofe and ranking member Barbara Boxer. “Under the new law, there will be more regulatory certainty and predictability, both to the industry that manufactures chemicals and to those that use and are exposed to chemicals.”
The bill “offers a modern approach to establishing a consistent, national chemical regulatory program that still preserves the States’ ability to address unique and pressing State concerns,” they wrote.
The letter was signed by the AGs of Alabama, Georgia, Louisiana, Michigan, North Dakota, South Carolina and Utah. -
Bonnie Lautenberg Urgest Compromise on TSCA
Mar 18, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The widow of the Sen. Frank Lautenberg urged senators to reacha a compromise on updating the Toxic Substances Control Act, which she said is an even more important legacy to the late New Jersey Democrat than his success in banning smoking on airplanes.
“This bill on chemical safety meant everything to him. He told me it was even more important than his signature accomplishment: banning smoking on airplanes,” Bonnie Lautenberg said in a statement at the start of a Senate Environment and Public Works TSCA hearing. “He wanted chemical safety to be his final, enduring legacy.”
Lautenberg released a compromise bill with Sen. David Vitter two weeks before he died in 2013. Bonnie Lautenberg is backing a new version from Vitter and Sen. Tom Udall that critics like EPW ranking member Barbara Boxer have said unnecessarily preempts state toxics controls and would be worse than current law.
“They are letting the perfect be the enemy of the good, which is tragic because if they get their way then there will be no reform … for many more decades,” Lautenberg told the panel. “This bill is not only the legacy of Frank Lautenberg, it is about the legacies of each member of this committee,” she added. “Please work out your differences and get it done.”
But Sen. Cory Booker, who succeeded Lautenberg and introduced Bonnie Lautenberg before her statement, later said that too has “multiple concerns” with the Udall and Vitter bill. -
Lautenberg's Widow, Udall Battle Boxer Over TSCA Bill
Mar 18, 2015 | E&E - Greenwire
By Sam Pearson
Two senators who unveiled a bipartisan chemical safety bill last week and the widow of their former Democratic colleague took the proposal before the Senate Environment and Public Works Committee this morning but quickly faced criticism from Sen. Barbara Boxer (D-Calif.) and other opponents.
The debate centered on S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," from Sens. Tom Udall (D-N.M.) and David Vitter (R-La.).
Bonnie Englebardt Lautenberg, the widow of the late Sen. Frank Lautenberg (D-N.J.), told the panel that her husband knew his previous bill, the "Safe Chemicals Act," which never received GOP support, was unlikely to become law. But the push helped bring Vitter to the negotiating table, along with the powerful chemical industry, she said. Continuing to block the plan would mean lawmakers had "let the perfect be the enemy of the good," she said.
"This bill on chemical safety meant everything to him," she said. "He told me it was even more important than his signature accomplishment, banning smoking on airplanes. He wanted chemical safety to be his final enduring legacy."
But Boxer pledged not to back down from her opposition to the proposal.
"I'm not going to stop saying what I think," Boxer said. "I'm going to escalate saying what I think," because so many health organizations have grave concerns about the changes.
The bill would update the Toxic Substances Control Act of 1976. It has the support of Republicans, the chemical industry and some Democrats, but Boxer has led a group of environmental organizations, state attorneys general and public health organizations in a bid to hold out for a more protective proposal.
Opponents are wary of granting U.S. EPA the ability to override state laws on chemicals at a time when the federal agency faces budget constraints and sometimes-slow rulemaking processes.
Boxer, who recognized in the audience environmental activist Erin Brockovich and Linda Reinstein, president of the Asbestos Disease Awareness Organization, said the bill "does not reflect the work I did with [Lautenberg] in the past."
Vitter argued that the pace of chemical assessments -- at least 20 of which would have to be completed for high-priority chemicals over a maximum of seven years of their designation under the new bill -- would not restrict EPA from doing more. He said pre-emption of state laws is appropriate to ensure a consistent regulatory scheme for companies.
"This bill is more similar to product regulation, when the federal government regulates products in commerce," Vitter said. "I think we need to have the pre-emption discussion in that context."
Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, confirmed that the bill didn't conflict with Obama administration principles and that, in some respects, it would grant the agency more authority than under current law. But he also couldn't explain why the law would bar state co-enforcement, a point of contention among some senators.
Udall, who served on the committee until this year, said criticism of his bill should focus on its contents, not "attacks on anyone's character and motivations." Such attacks "are absurd and unfounded, but they do a serious disservice to the legislative process," Udall said.
He did not specify what he was referring to, though lawmakers traded barbs prior to the hearing (E&E Daily, March 18).
It might be possible to reach agreements on changes to provisions like the co-enforcement ban, the timing of state pre-emption and raising the minimum number of chemicals to be reviewed, Udall said.
Sen. Tom Carper (D-Del.) said lawmakers need to work together to find a way forward by communicating, collaborating and compromising -- the same advice he gives to married couples.
"It's also the secret for a vibrant democracy," Carper said.
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Asbestos Seen As TSCA Reform Test For EPA's Power To Ban Chemicals
Mar 18, 2015 | InsideEPA
By Bridget DiCoso
Newly unveiled Senate bills to overhaul the Toxic Substances Control Act (TSCA) are highlighting EPA's inability to ban asbestos under the current law, making the potential for an asbestos ban a key test for the extent to which reform legislation should give the agency new authority to prohibit harmful substances from the marketplace.
"The true test of TSCA reform ought to be whether EPA can quickly ban asbestos" with new authority in a TSCA reform bill through revisions to the law's section 6, which deals with regulation of hazardous chemical substances and mixtures, one environmentalist says. TSCA reform legislation introduced March 12 by Sens. Barbara Boxer (D-CA) and Ed Markey (D-MA) would explicitly authorize and require EPA to quickly ban asbestos.
Industry sources, however, say that a reform bill does not need a specific provision requiring EPA to expedite action on asbestos, and that a competing bipartisan bill introduced March 11 by Sens. David Vitter (R-LA), Tom Udall (D-NM) and others will address concerns about section 6 that frustrated an EPA ban on the substance.
The U.S. Court of Appeals for the 5th Circuit in 1991 struck down EPA's attempt to ban asbestos -- a known carcinogen -- under section 6, finding in Corrosion Proof Fittings v. EPA that the agency had not met its burden of proof to establish the chemical's risk could not be reduced by any other regulatory means.
Since that ruling, EPA has never proposed a complete prohibition on another chemical under section 6, though as TSCA reform debates in Congress have continued to drag on for years, the Obama EPA has stepped up its efforts to regulate chemicals under the current law. In 2012 EPA announced that the agency had prioritized some 83 substances, including asbestos and asbestos-like fibers, for risk assessment of consumer uses.
EPA's Wendy Cleland-Hamnett, director of EPA's Office of Pollution Prevention & Toxics, said during an event in March in Baltimore that the agency is "looking at using [TSCA] section 6" for the paint stripper methylene chloride. And EPA last November began exploring a section 6 ban for the solvent trichloroethylene, despite objections from the chemical sector which claims that EPA is overstating the health risks of the chemical.
Under current TSCA section 6 authority, EPA may move to ban or otherwise restrict a chemical in commerce if it finds "reasonable basis" to conclude that the substance presents an unreasonable risk of injury to human health or the environment, but the agency must use the "least burdensome requirement." In the 5th Circuit's ruling inCorrosion Proof Fittings, the "least burdensome" language proved problematic for EPA to satisfy, industry sources say.
TSCA Authority
The Boxer-Markey TSCA reform bill, S. 725, and the Vitter-Udall bill, S. 697, would strip that language from TSCA, but groups are split on which bill would boost EPA's section 6 authority.
S. 697 -- known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act after the late Sen. Frank Lautenberg (D-NJ) who worked with Vitter on TSCA reform -- "addresses the concerns with Corrosion Proof Fittingssufficiently and the Boxer Markey bill is not needed for this reason," one industry source says.
The source cites the elimination of the "least burdensome" requirement and new language in S. 697 on the "unreasonable risk" safety standard, which strengthens the provision from an earlier draft of the bill to reflect that EPA must promulgate a rule establishing restrictions necessary to ensure a substance meets the standard.
"There's no wiggle room there," a source tracking the issue adds, pointing out that allowing a chemical to remain in the marketplace after finding it has failed to meet the safety standard -- as happened with asbestos -- "is not an option under Udall-Vitter," which at press time had support from 8 Democratic and 9 GOP co-sponsors.
Moreover, the source says that the "biggest single thing the court pointed at" in Corrosion Proof Fittings was the "least burdensome" requirement, which the bipartisan reform bill would eliminate.
A second industry source notes that "if you make only that change, you go 85 percent down the road to fixing" the flaws in section 6 that have hindered EPA's ability to regulate asbestos.
According to a side by side comparison of the Vitter-Udall bill to current law authored by Environmental Defense Fund, which supports the bill, the bill would amend section 6 to make clear that cost considerations cannot override the requirement that restrictions be sufficient to allow chemicals to meet the safety standard.
Further, the analysis says, whereas current TSCA suggests EPA must conduct a formal evaluation to show that the benefits of a proposed section 6 action outweigh the potential costs, the bill would require balancing of costs and benefits only "to the extent practicable based on reasonably available information."
The bill language appears to reflect concerns raised by EPA toxics chief Jim Jones over S. 1009 -- an earlier, unsuccessful bipartisan TSCA bill introduced in 2013 by Lautenberg and Vitter -- that the cost benefit requirements would create similar issues for EPA to the "least burdensome" requirement.
Risk Management
But the environmentalist says that while the cost considerations may be modified in the new Vitter-Udall bill, the legislation still "explicitly requires" cost to be a factor in risk management decisions under section 6.
The source adds that the Boxer-Markey bill would explicitly require EPA to immediately list asbestos in all its forms as a high priority chemical under the new prioritization regime the bills would establish, to complete a safety assessment and determination within two years, and take final action on a rule within three years of passage.
"The industry bill does not mention asbestos and does not create an expedited process to review and presumably ban a substance that still causes the deaths of more than 10,000 Americans every year," Environmental Working Group says of a side-by-side comparison between the two bills.
But industry sources point out that asbestos is less widely used than in 1991, meaning it may not be as high a priority as some other substances that are more widely used in consumer goods and therefore have a higher level of exposure, under a new TSCA regime.
"It's worth noting that asbestos is not used nearly as much now as in 1989 when EPA" considered a ban, a third industry source says, and the second source notes that, "If you order EPA to do something about asbestos, you take resources away from" other chemicals that may have a higher exposure level."
However, EPA's 2012 work plan chemical list includes asbestos, and the Vitter-Udall bill would require EPA to select at least five work plan chemicals in its initial 10 high-priority substances it is required to list for safety assessment within one year of enactment.
Meanwhile, Sen. Dick Durbin (D-IL), who had been a co-sponsor on the original S. 1009 Vitter-Lautenberg bill but has not yet signed onto either of the new reform bills, recently introduced S. 700, known as the "Reducing Exposure to Asbestos Database Act of 2015", which would establish a database for better tracking of consumer products that use asbestos.
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Mar 18, 2015 | The Hill - Congress Blog
By John Musella
There are lots of great things about California—amazing beaches, expansive parks, Hollywood, and Disneyland. But it’s not all surfing and celebrity-watching. Just like you wouldn’t want California’s earthquakes shaking your hometown, you don’t want California’s ridiculous chemical labeling law wrecking your state’s economy.
Which is why we need a common sense update to our federal chemical law—and fast.
Back in 1986, California voters passed Proposition 65, which required state regulators to make a list of chemicals that might cause one excess case of cancer in 100,000 people over 70 years and chemicals that might cause reproductive harm. Any business that uses those chemicals is required to post a warning sign or put a label on the chemical-containing product.
Fast forward almost 30 years and the state has listed nearly 900 chemicals, but research shows the law has had no effect on reducing state cancer rates.
Instead, California business owners (along with businesses based around the world) have paid hundreds of millions of dollars in settlements and attorneys’ fees to “bounty hunters” that scour the state looking for products that contain chemicals on the state’s warning list.
The threshold for when a Proposition 65 warning sign is legally required is so low that even coffee chains such as Starbucks are forced to warn customers about cancer risks from coffee. A chemical called acrylamide forms naturally when coffee beans are roasted, and when given in very high doses to rats it may cause cancer.
The signs don’t mention that you’d have to drink around 100 cups of coffee a day before you need to start worrying about acrylamide exposure. Of course, if you’re drinking that much coffee, you’ve got a lot of other health problems to worry about before acrylamide exposure.
So why should non-Californians care about our crazy chemical warning law?
California’s Proposition 65 has been forcing manufacturers to reformulate or place warning labels on their products for decades. Imagine the regulatory nightmare if instead of complying with one federal (or California) standard for products, manufacturers had to comply with a different law in every single state.
Unfortunately, that nightmare could easily become reality.
Since Congress hasn’t updated our federal chemical law—the Toxic Substances Control Act of 1976—in nearly four decades, states have increasingly taken chemical regulation into their own hands. They’ve considered roughly 170 different bills to regulate chemicals, following in California’s wandering footsteps.
It’s a truly worrying trend. If my state’s experience is a predictor, businesses will simply stop selling products in states where they have to meet a separate chemical standard. While small businesses will certainly have trouble manufacturing their products to meet various state standards, even huge companies such as Dunkin Donuts have suspended selling their products in California because of Proposition 65.
Luckily, there is a way to stem this tide.
New legislation introduced by Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) is a bipartisan effort to strengthen our national chemical law by giving the Environmental Protection Agency more tools to regulate chemicals on the federal level. And while the proposal will allow California to keep Proposition 65 in place, it would prevent other states from creating their own wonky chemical laws that conflict with federal standards.
Regulating chemicals is clearly Congress’ job; few manufactured goods are sold only within state lines. As part of its powers under the Interstate Commerce Clause, Congress has the responsibility to set strong federal standards for chemicals in consumer products, ensuring consumers around the country are safe.
Consumers don’t need to see warning labels telling them their morning coffee, evening glass of wine, or even their flip flops might pose a health risk. They need confidence that the products they use and consume everyday meet strong federal chemical safety standards that actually keep their families safe.
California has a lot to offer, but a roadmap on smart chemical regulation isn’t one of them.
Musella is chairman of the California Chapter of Log Cabin Republicans.
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Don’t Let Another Generation Grow Up Under a Failed Toxics Law
Mar 18, 2015 | The Hill - Congress Blog
By Lynn Goldman
When I first testified before Congress on the Toxic Substances Control Act (TSCA), it was 1994 and the flaws in the law were already glaring. Already two decades old, TSCA had recently suffered a paralyzing blow from a federal court decision throwing out EPA’s regulation of asbestos.
That 1994 reform effort faltered. This week I will testify once again on that same law that is another 20 years older and even more desperately in need of an overhaul: we cannot wait another generation before taking action.
Happily the bill that is the subject of this week’s hearing, The Frank R. Lautenberg Chemical Safety for the 21st Century Act (or Lautenberg Act), may finally provide the mandate EPA needs to protect public health.
The most critical improvement is that the Lautenberg Act would replace the cost-benefit balancing requirement in the current version of TSCA with a firm, public health-based standard when determining the safety of chemicals. Importantly, the underlying issue in the asbestos court decision would also be resolved by the removal of “least burdensome” clause.
As a pediatrician I am particularly pleased that the new bill would explicitly require the protection of infants, children, pregnant women and other populations. The Lautenberg Act would also give EPA strong authority for ordering chemical testing, establish clear expectations for the safety of new chemicals and open up vast quantities of chemical information that are currently “confidential.”
There are some areas where Congress could consider improvements to the bill. For one, Congress should set aggressive, but realistic expectations for EPA productivity. Moreover, chemicals are increasingly regulated globally, so Congress should take advantage of a TSCA re-authorization to allow the US to fully participate in international chemical management treaties like the Stockholm Convention.
While much of the controversy around this bill has focused on the preemption of state laws, a close look reveals that the Lautenberg Act is significantly less preemptive than the bill introduced in the prior Congress. It must be remembered that the rising tide of chemicals being regulated on a state-by-state basis is a symptom of a broken federal system, rather than an assurance of safety. While I support the right of states to take action to protect their citizenry, federal actions are needed to protect all US citizens.
I am particularly pleased that this strong bill has already gained 17 Senate cosponsors, split nearly evenly between the parties. This bipartisan support means we finally have a good chance to reform the law.
There is a human cost to inaction. Since TSCA passed in 1976, 149 million babies were born in this country, half of them after 1994. An estimated 3% of these babies had birth defects and more than 10% were born preterm. Since 1976, 86 million people in the US died, more than half of these after 1994; around 25% of these death were due to cancer.
While we don’t know how many of those outcomes are due to chemical exposure, we do know this: We’re all exposed to tens of thousands of chemicals in everyday products and some of them have been linked to cancer, birth defects and other serious health problems.
Each of us has our own ideas about what a perfect TSCA would look like. But I don’t want to be facing another Senate committee 20 years from now, testifying about a 60-year-old law and reciting the same litany of problems that we have been aware of for so long.
Nor do I want to explain to my 18-year old daughter why her own children will not be able to enjoy a greater level of protection than we could give to her because we failed to pass a good, even if imperfect, bill into law. I’m glad that Congress is once again turning its attention to this important issue, but this time, let’s make sure we get it done.
Goldman is the Michael and Lori Milken Dean of the Milken Institute School of Public Health at the George Washington University. She served as an assistant administrator at EPA and worked in environmental health for the California Department of Public Health.
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Don't Close the Door on Open Science
Mar 18, 2015 | The Hill - Pundits Blog
By Amanda D. Rodewald,
With the complex challenges facing our planet, never have we needed science more. That recognition is part of the motivation driving a scientific revolution — the Open Science Movement — that aims to make research and data widely accessible to all sectors of society. After all, shouldn't we ensure broad use of science, particularly for research that has the potential to inform decisions made by government, business, industry, nongovernmental organizations and individuals? For science that can improve people's lives, shouldn't everyone have access? The Open Science Movement works toward making science available so that it can be used to to improve human health and well-being, accelerate discovery and innovation, and stimulate new ways of thinking.
The momentum for Open Science has been growing for years. The America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education and Science Act (America COMPETES Act), signed by President Bush in 2007 and reauthorized in 2010, required federal agencies to promote open exchange of data and research among agencies, the public and policymakers. The bar was raised further in a 2013 memo from John Holdren, the director of the White House Office of Science and Technology Policy, who instructed federal agencies to make results from research funded with taxpayer dollars freely available within 12 months after publication. We've since seen data-sharing requirements unrolled by agencies like the National Institutes of Health and National Science Foundation, creation of new data-sharing networks like Data Observation Network for Earth (DataOne) and a wide variety of publicly available datasets.
The Open Science Movement provides an interesting backdrop for two recent bills being considered by the House. Despite using open science ideas and language, are these bills actually in sync with the intent of the Open Science Movement — to promote and facilitate wider use of science? Or do they undermine it? Let’s take a closer look.
H.R. 1030, the Secret Science Reform Act, prohibits the Environmental Protection Agency (EPA) from proposing, finalizing or disseminating regulations or assessments based on science that is not transparent, accessible or reproducible. The bill specifically requires that all scientific and technical information (i.e., data, materials, protocols, computer codes and models) used by the agency be publicly available online in a form that allows independent analysis and reproduction of results.
H.R. 1029, the EPA Science Advisory Board Reform Act, changes the rules governing who may serve as a board member. The amendments in this bill make it more difficult to engage scientists who have conducted research that may directly or indirectly be reviewed as part of the advisory activity.
Simple, right? So why are these bills such problems? In the case of the Secret Science Reform Act, the bill calls for a level of disclosure and accessibility that, in many cases, cannot realistically be achieved in the timeframes necessary for decision-making and regulatory activities. For example, the best or most important science — particularly for emerging risks and problems — often comes from recently completed studies. Even for peer-reviewed science already accepted for publication (a process that can take several months), publication can take additional months and, during that time, there may be legal restrictions on sharing intellectual property or proprietary interests. This means that under the Secret Science Reform Act, the most cutting-edge science would likely be excluded from the agency's consideration. The accessibility requirement under this bill also is likely to violate federal mandates and other efforts designed to protect the confidentiality of human subjects (e.g., public health studies) and private property (e.g., environmental data), again preventing their use by the EPA.
As noted in a letter from 50 scientific societies and universities, if the Secret Science Reform Act is enacted, the EPA may be further prevented from considering studies that cannot be reproduced, as is the case with one-time events (like the Deepwater Horizon spill) or where large populations are tracked over long periods of time, as is common in public health research. Requiring online accessibility, itself, may constrain the number of studies used by the agency (about 50,000 studies annually) due to the high cost of implementation, which is estimated by the Congressional Budget Office to cost $250 million or more each year.
The EPA Science Advisory Board Reform Act would also limit consideration of science by outlining who may participate in the advisory process. The Union of Concerned Scientists wrote a lettercriticizing the bill for limiting participation by scientists currently or previously engaged in research on review topics. Indeed, the new rules would restrict input on advisory activities from the scientists most qualified to provide advice — individuals who are experts in the field with substantial experience studying and publishing on the issue under discussion. Paradoxically, the new rules facilitate participation by experts with financial ties to corporations or industries affected by science advisory board reviews.
The Open Science Movement is a move in the right direction and one with tremendous potential benefit to society. These benefits are widely recognized and endorsed by the scientific community and others who strive to make science accessible, transparent and publicly disclosed. But the Secret Science Reform Act and the EPA Science Advisory Board Reform Act fall short of moving us toward the aspirations of the Open Science Movement. Rather, these two House bills are likely to impede efforts to use science to inform decisions related to human health and well-being and close the door on some of the science and input most needed to support the EPA's decision-making and regulatory processes.
Rodewald is director of conservation science at the Cornell Lab of Ornithology, faculty fellow at Cornell University's Atkinson Center for a Sustainable Future, an associate professor in the Department of Natural Resources at Cornell University and a Robert F. Schumann Faculty Fellow. Views expressed in her column are hers alone and do not represent those of these institutions.
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The Crude Oil Export Ban is a Relic of Flawed Policy
Mar 18, 2015 | The Hill - Pundits Blog
By William O'Keefe
Forty years ago, Congress passed an energy policy act that banned the export of crude oil. It did not ban the export of products like gasoline and diesel oil.
The ban was in response to the Arab oil embargo and the prevailing perception in scarcity. From an economic perspective, as well as an energy perspective, the ban made little sense. Now, it makes no sense. It was driven by politics and emotion. When oil was discovered in Alaska's Prudhoe Bay, it would have been cheaper to export it to Japan and then buy an offsetting quantity on the world market. But because of the ban, it was politically radioactive to even raise such a prospect. So U.S. consumers, mainly in California, paid a price for an inefficient outcome that was driven by the ban and another bad policy called the Jones Act.
As long as imports were growing and domestic oil production was declining, there was little interest in the export ban or to running the risk of a political backlash by removing it. It is now a serious impediment to our economic self-interest.
Today, the notions of scarcity and excessive dependence on foreign oil have finally been discarded. They have been replaced by abundance from our energy renaissance and the economic benefits it has produced. So, why doesn't Congress pass legislation removing the ban and why doesn't the president direct the Commerce Department to freely grant export licenses? Politics still trumps good economics.
Although it is counterintuitive, exporting domestic crude oil is most likely to result in lower gasoline prices, but the explanation of why is not simple. Politicians like simple sound bite explanations and removing the ban does not lend it self to simplicity. Presently, there is an excess of crude oil in storage, including in tankers leased to increase storage capacity. Increasing storage serves no purpose other than letting traders bet on higher future prices that will allow them to profit. Allowing the export of crude into the world market would lower the world price of crude oil and that would lead to a lower price for gasoline.
There is another practical reason that also will benefit consumers. Most of our refining capacity has been built to handle high sulfur imports while the increase in shale oil production is lower sulfur. As a result, either refiners have to spend billions of dollars to modify their refineries or they have to find other ways of dealing with the increasing volume of shale oil. Some are doing exactly that by investing in "splitters" (simpler refineries) that can process the low sulfur crude enough for the output to qualify as products. Clearly, either option is more costly than just removing the ban.
The free trade of any commodity leads to increased efficiency and that always benefits consumers by lower prices, increased investments and jobs. Eventually continuing the export will lead to further reductions in exploration and production, undermining the energy renaissance that has been an economic benefit to a struggling economy. The U.S. has always taken the lead in promoting free trade because of the global benefits that it produces. It is hypocritical to preach a policy and then ignore it as we have done with the export ban.
Some also claim that removing the ban will result in more exploration and production that will lead to more greenhouse gas emissions. The belief that carbon dioxide emissions lead to climate change has become an article of faith even though it is contradicted by climate history, physics and the pause in warming that began in 1998. The International Energy Agency projects that for the next several decades, fossil fuels will continue to provide over 80 percent of the world's energy consumption. That reality trumps the environmental argument.
The case for removing the ban is overwhelming. Ideology, politics and special interests should not continue to be obstacles to doing the right thing for the economy and global trade.
O'Keefe is CEO of the George Marshall Institute and president of Solutions Consulting, Inc.
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Dems to Reintroduce 'Frac Act,' Other Drilling Bills
Mar 18, 2015 | E&E - Energywire
By Mike Soraghan
Democrats are reintroducing four bills that would increase federal regulation of oil and gas drilling, though passage remains unlikely.
House Democrats are calling the bills the "Frack Pack." They would increase federal regulation of the effects of drilling and hydraulic fracturing on water and air.
On the other side of the Capitol today, Sen. Bob Casey (D-Pa.) is to reintroduce one of the four bills, called the "Frac Act." It would repeal a provision environmentalists call the "Halliburton Loophole" and allow U.S. EPA to regulate hydraulic fracturing. Rep. Diana DeGette (D-Colo.) is introducing the bill in the House.
"These bills," Democrats said in a release, "will close loopholes and hold the energy industry to the same standards that apply to everyone."
The reintroductions come as the Obama administration prepares to release new rules for drilling and fracking on Interior Department lands (E&ENews PM, March 17).
The House bills will be touted in a press event Thursday featuring DeGette and the three other House Democrats sponsoring the bills.
Rep. Matt Cartwright (D-Pa.) is to reintroduce the "Fresher Act," which increases regulation of drilling under the Clean Water Act, including provisions on stormwater runoff.
Rep. Jared Polis (D-Colo.) is handling the "Breathe Act," which would require emissions from multiple related wells to be aggregated to determine their total pollution.
Rep. Jan Schakowsky's (D-Ill.) "Shared Act" would require base-line testing of drinking water sources before drilling and fracking are begun, in order to document any contamination.
Casey's co-sponsors in the "Frac Act" will be Sens. Richard Durbin (D-Ill.), Sheldon Whitehouse (D-R.I.), Jack Reed (D-R.I.), Ben Cardin (D-Md.), Jeff Merkley (D-Ore.), Dianne Feinstein (D-Calif.), Barbara Mikulski (D-Md.) and Kirsten Gillibrand (D-N.Y.).
The "Frac Act" has not fared well since a version of it was first introduced in 2009. Even when Democrats controlled both chambers, it didn't get a hearing. With Republicans in charge, Congress is even less likely to approve increased federal regulation of drilling.
Earlier this year, the Senate rejected similar legislation to undo the "Halliburton Loophole" on a 35-63 vote (EnergyWire, Jan. 29).
It was the first congressional floor vote in years on the question of whether EPA should be able to regulate hydraulic fracturing, a controversial aspect of drilling that has driven the U.S. boom in oil and gas production.
Oil and gas producers have fought any suggestion of federal regulation of fracking for years.
The 2005 exemption has become known as the "Halliburton Loophole" because Halliburton Co. had lobbied for the exemption while Dick Cheney ran the company. As vice president under President George W. Bush, Cheney touted it in the energy plan he shepherded for the Bush administration.
It's not clear what repealing the exemption would do. EPA had never broadly regulated fracking before the exemption passed, though it had complied with a 1997 federal appeals court order to require Alabama to regulate it. Without the 2005 exemption, environmental groups might have been able to expand the precedent into other states through litigation.
Deep underground injection of oil and gas waste into thousands of wells across the country remains covered by the UIC provision in the law. There have been few complaints about EPA's oversight.
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OVERNIGHT ENERGY: Republicans Attack Ozone Rule
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
IT'S OZONE DAY: Tuesday was the last day to submit formal comments on the Environmental Protection Agency's (EPA) ozone reduction proposal, and Republicans took advantage of it to register their complaints.
The House Science Committee held a hearing to scrutinize the benefits that the EPA said would come with the regulation and outweigh its costs by more than two-to-one.
Chairman Lamar Smith (R-Texas) criticized the process the EPA used for picking and reviewing studies.
"During earlier stages of this rule-making, EPA relied on studies with data that was not publicly available," Smith said. "This raises a lot of suspicions. Furthermore, the EPA has regularly chosen to disregard inconvenient scientific conclusions and muzzled dissenting voices."
Rep. Brian Babin (R-Texas) said that more research needs to be done, and Rep. Jim Bridenstine (R-Okla.) challenged the link between ozone -- the main component of smog -- and asthma.
Democrats on the panel defended the EPA and said it is on firm scientific footing, with a strong research record showing the respiratory harms associated with ozone.
Read more here.
And key an eye on The Hill Wednesday for more on the comments on the ozone proposal.
BUT WAIT, THERE'S MORE: Sens. John Thune (R-S.D.) and Joe Manchin (D-W.Va.) reintroduced the Clean Air, Strong Economies Act, which would prevent the EPA from adopting a stricter ozone standard until 85 percent of areas in the country meet the 2008 standard of 75 parts per billion.
"Lowering the ground-level ozone standard would be a staggering blow to our economy," Thune in a statement. "The Obama EPA needs to focus its efforts on areas already struggling with attainment, not strangle American industry with a job-killing regulation."
Thune also joined Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, in a CNBC opinion piece Tuesday calling the EPA's proposal "impractical and irresponsible."
"Our nation has made great strides in cleaning up the air we breathe. Air-pollution levels are at an all-time low," they wrote. "But 40 percent of Americans currently live in areas that haven't met the current ozone standard."
ON TAP WEDNESDAY I: The Senate Environment and Public Works Committee will hold a hearing on the bipartisan bill to reform the federal government's regulation of toxic chemicals. The senators will hear from various experts on chemical safety matters from George Washington University, the Environmental Defense Fund, the state of Maryland and others.
ON TAP WEDNESDAY II: The House Energy and Commerce Committee's subpanel on the environment and the economy will hold the first part of a hearing Wednesday on its bill to change the EPA's coal ash disposal rule. Mathy Stanislaus, the EPA's assistant administrator for solid waste, will testify, along with representatives of utilities, environmentalists and states.
Rest of Wednesday's agenda ...
The United Kingdom's Prince Charles will be in town and will speak Wednesday at an event organized by the Global Ocean Commission on plastic waste in the ocean. Former British Foreign Secretary David Miliband and former Costa Rican President José María Figueres will also speak.
The Woodrow Wilson International Center for Scholars' Canada Institute will hold a discussion Wednesday on the differences between environmental review in the United States and Canada.
The United States Agency for International Development's Climate Change Resilient Development program will continue its symposium on climate-resilient development. Wednesday's events will focus on resilience in cities.
Budget hearings ...
Subcommittees of the House Appropriations Committee will hold hearings Wednesday on budget requests from the Energy Department's environmental management programs and the National Oceanic and Atmospheric Administration.
The House Appropriations Committee's subcommittee with jurisdiction over the Interior Department and the EPA will hold its public witnesses hearing for fiscal year 2016.
Subcommittees of the House Natural Resources Committee will hold hearings Wednesday on the budget requests for Interior Department's Office of Surface Mining and its offices with authority over American Indian affairs.
The House Transportation and Infrastructure Committee's water subcommittee will hold a hearing on the EPA's budget request for its water programs.
NEWS BITE: Oil giant BP gave itself a big pat on the back Monday with a report saying that the Gulf of Mexico is rebounding well from the 2010 Deepwater Horizon oil spill.
But the report quickly ran into opposition from scientists and governments, the New Orleans Times-Picayune reports.
The National Oceanic and Atmospheric Administration quickly disagreed with the report, saying it "misinterprets and misapplies" the agency's statements.
Louisiana's Coastal Protection and Restoration Authority also blasted it.
It also faces various other problems. The cause of dolphin deaths has still not been resolved, a full health assessment of the Gulf hasn't been completed and BP's claims about the oil's impact are in dispute, the Times-Picayune said.
AROUND THE WEB:
California is likely to extend water usage restrictions as its drought rages on, the Associated Press reports.
New Jersey's Senate voted to condemn the settlement deal Gov. Chris Christie (R) made with Exxon Mobil Corp. over pollution, NJ.com reports.
For eight months, town government buildings in Windham, Mass., will be powered by renewable energy, the Eagle-Tribune reports.
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Obama Administration Wants More Renewable Energy, Tighter Pollution Controls on Public Lands
Mar 18, 2015 | The Washington Post
By Joby Warrick
The Obama administration will seek tougher standards for companies extracting oil, gas and coal on taxpayer-owned land during its remaining months in office, even as it pushes for expanded solar and wind projects,Interior Secretary Sally Jewell said Tuesday.
Jewell, in a major speech outlining energy priorities for the administration’s final 22 months, said she intended to see that Americans get a better return — financially and environmentally — from energy development on the 500 million acres of surface land and nearly 2 billion acres of off-shore territories managed by the federal government.
She promised “balanced decisions” and “clear rules of the road” for energy companies, but she said protecting the Earth’s climate would drive policy choices, from new rules limiting methane gas leaks to incentives for building wind farms off shore.
“Helping our nation cut carbon pollution should inform our decisions about where we develop, how we develop and what we develop,” Jewell told a forum at the Center for Strategic and International Studies, a Washington think-tank.
The speech was Jewell’s most expansive effort to lay out priorities for energy development since the former REI company CEO became interior secretary nearly two years ago. The Interior Department, which administers about a fifth of the country’s surface land as well as the Outer Continental Shelf, manages leases for about a quarter of the country’s oil, gas and coal projects, from massive natural gas fields in the Southwest to oil wells in U.S. waters from Alaska to the Gulf of Mexico.
Jewell touted booming energy production over the six years of the Obama administration, noting that daily oil production has nearly doubled during the period while U.S. dependence on foreign oil imports has plummeting.
During that six years, the Interior Department has helped facilitate a historic surge in electricity generation from solar and wind farms, she said. The 52 commercial-scale solar and wind projects approved since 2008 are expected to generate 14,000 megawatts of power, roughly equivalent to the amount of hydroelectric power generated by all the nation’s dams, including the Hoover and Grand Coulee, she said. More projects are in the works, including off-shore wind farms along the Atlantic Coast.
“Just as the United States is … the world’s top producer of natural gas, there’s no reason why we shouldn’t also be the top producer of solar power and wind power,” she said.
Jewell said fossil-fuel companies should expect new regulations over the coming months, alluding to plans to unveil long-anticipated rules governing hydraulic fracturing, or fracking, on public lands. The proposed rules, which update decades-old standards restricting the kinds of equipment and chemicals used in fracking, are expected to be announced as early as this week.
“Some have already labeled these baseline, proven standards as overly burdensome to industry; I think most Americans will call them common sense,” she said.
Jewell’s speech came during a week in which House Republicans have outlined their priorities for energy development in a 2016 budget plan. Asummary document encourages further oil and gas exploration onshore and offshore, including on public lands, while it promised to oppose current government policies that encourage renewable energy.
“The budget rescinds all unobligated balances from the president’s stimulus green energy programs,” the Republican document says. “The government cannot recover taxpayer dollars from failed projects like Solyndra, but it can protect taxpayers from being on the hook for future boondoggles.”
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D.C. Circuit Stays Suit Over EPA's GHG Reporting Rule
Mar 18, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has granted the American Petroleum Institute's (API) unopposed motion to delay litigation the group filed challenging EPA's greenhouse gas (GHG) reporting rules for the oil and gas sector, while the agency weighs API's administrative petition for reconsideration of portions of the 2010 rule.
In a March 16 order the court said the suit, API v. EPA, et al., is on hold pending further court order, with EPA directed to file status reports on the case at 90-day intervals beginning June 15.
API in a motion last month asked the court to stay the litigation until EPA has completed its review of the related petition for administrative reconsideration of the rule that it filed with the agency, urging it revise various parts of its 2010 GHG reporting rule.
“Because the present petitions seek review of closely related regulations . . . that may be affected by EPA's ultimate conclusion regarding reconsideration of the 2010 rule, API is requesting the consolidated cases also be held in abeyance under the same terms” as other long-pending cases the group has filed challenging EPA rules issued in 2010 and 2011, the group's motion said.
The API litigation challenges EPA's Nov. 15 rule that revised the 2010 GHG reporting regulation for the oil and gas sector. The change amended the agency's subpart W reporting rule governing petroleum and natural gas systems, which EPA says is aimed at improving clarity and consistency of the reported data it receives.
The revisions include eliminating best available monitoring methods (BAMM), alternative calculation methods EPA allowed in the reporting rule in order to give facilities time to adopt the necessary methods.
EPA made the changes in response to a 2013 petition from environmentalists, who have been pushing the agency to step up its oversight of the sector's emissions of methane, the potent GHG. Among other things, the petition urged the agency to eliminate the BAMM and expand the scope of its GHG reporting rule for the oil and natural gas sector to include natural gas distribution infrastructure and oil wells that co-produce methane, saying the existing rule's failure to include the units gives an “incomplete picture” of the drilling sector's emissions.
API and the Gas Processors Association both faulted the rule and filed suit over it, and the cases were consolidated. The Gas Processors Association did not object to the abeyance request.
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Start Beefing Up Grid Now for Clean Power Plan Impacts, Consultants Say
Mar 18, 2015 | E&E - Energywire
By Peter Behr
The tight deadlines of U.S. EPA's proposed Clean Power Plan would be easier to meet if transmission developers and grid planners get a head start on strategic power line projects that anticipate coal plant retirements, analysts at the ICF International consulting firm said yesterday.
The new high-voltage lines that may be required by 2020 to comply with the CPP will cost an estimated $1.5 billion to $2.5 billion, compared with $60 billion already earmarked for grid expansion over the next decade, not including the additions required by EPA's climate policy, the ICF consultants said.
"Nationally, this is a small percentage" of the nation's transmission budget, said Kiran Kumaraswamy, senior manager at ICF International. "The investment level will be manageable, but the timeline will be a challenge."
Instead of waiting until 2017 or 2018 -- when state or regional compliance plans are to be completed, according to the current EPA timetable -- planning for new grid projects should get underway this summer, as soon as EPA releases its final plan, the ICF consultants said.
ICF officials said yesterday that their assessment of transmission requirements was based on a case study of the CPP's impact on the Midcontinent Independent System Operator (MISO), the multi-state grid manager in the central United States. The MISO results were then extrapolated to get a national estimate.
The MISO review identified 43 high-voltage transmission lines that would be overloaded to 100 percent or more of their long-term emergency operating limits following coal plant retirements. "These are [reliability] violations caused exclusively by the new flow patterns in the MISO system," ICF said. They are problems that MISO would have to fix, the analysts added. New lines would have to connect new sources of electric power to customers.
"Forward thinking entities could potentially propose new projects that will help maintain and enhance reliability in the face of changing generation and power flow patterns," ICF said.
"Stakeholders will need to start their analysis as soon as there is clarity on final rule, to identify and seize opportunities" to deliver power from new renewable generation and natural gas plants that will be needed to replace retired coal plants, Kumaraswamy said.
"To the extent that the industry as a whole can be proactive about this and start planning, it sets the stage for us to be much more prepared when we get into the time frame of 2018 to 2020," he said.
E&E's Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA's greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
The timing of transmission development in response to CPP imperatives has quickly arisen as a fault line in the debate over the plan.
Some state officials and regional grid operators protest that EPA's timetable doesn't adequately consider the seven to 10 years required to plan, permit, site and build a typical high-voltage line. The need for particular projects can't accurately be predicted until after state compliance plans are done and generation owners have decided which coal-fired plants to close, critics say.
The Ohio Environmental Protection Agency, for example, expressed "serious reservations" about the federal EPA's conclusion that its plan would not threaten reliable operation of the power grid, based on EPA's computer modeling of the policy change effects.
The EPA integrated planning model takes a high-altitude snapshot of how the grid will operate after 2020 that doesn't consider impacts on specific power lines and plants, Ohio said. Thus, EPA's analysis is subject to "severe limitations," including "failure to represent congestion at the local level, failure to properly assess individual units, failure to recognize and account for seasonal variation, lack of detailed transmission and distribution information."
ICF, which developed the basic computer modeling platform on which EPA's analysis was built, suggested yesterday that grid planners could add more flexibility into the transmission network to help accommodate the CPP, even if final details about the grid's future shape aren't yet known.
Johannes Pfeifenberger, principal with the Brattle Group consulting firm, agrees. "We certainly know where the oldest and least efficient coal plants are," said Pfeifenberger, co-author of a recent CPP analysis. "We know where the best wind resources are" (EnergyWire, March 6).
"You could plan a grid that would do a good job for almost all of the future scenarios" resulting from the Clean Power Plan, he said.Cost concerns
But building in spare capacity for the future into a power line project costing hundreds of millions of dollars alarms cost-conscious state utility regulators. It can also inject more competition into power markets that incumbent suppliers don't welcome, grid executives say.
Cost issues loomed for ITC Great Plains, which recently completed a 122-mile, 345-kilovolt transmission line across Kansas. Company President Kristine Schmidt said ITC initially proposed a 765 kV power line with three times the capacity. Energy planners objected to the cost of the bigger project, and ITC was directed to downsize it (EnergyWire, Jan. 9).
"If we'd built the 765 line, we would have had some more headroom to allow for growth and more interconnections and the ability to transfer power," she said. But the planning would entail guesswork. "The amount of assumptions that would have to be made for those retirements, you're doing a great deal of speculation. And then also, you're speculating on where will the new resources come from," she said.
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Legal Icon Calls EPA's Power Plant Rule An 'Unconstitutional Trifecta'
Mar 18, 2015 | E&E - Climatewire
By Scott Detrow
How crucial has Harvard Law professor Laurence Tribe's opposition to U.S. EPA's Clean Power Plan become for the congressional Republicans who oppose the unprecedented new carbon emission rules?
So crucial that Texas Rep. Joe Barton (R) spent a considerable portion of his question window during a hearing yesterday morning simply reading from Tribe's prepared statements on the proposal's legal flaws. This was despite the fact that Tribe was sitting just a few feet away at the witness table and had delivered that opening statement just a half hour earlier.
When Senate Majority Leader Mitch McConnell urged states to ignore the attempt to lower the power sector's carbon footprint by 30 percent and not simply submit compliance plans to the EPA, the Republican cited Tribe's argument that the agency is exceeding the authority granted by the Clean Air Act (Greenwire, March 4).
E&E's Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA's greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
Ever since Tribe submitted public comments to EPA and published a subsequent op-ed in The Wall Street Journal, Republican lawmakers have referenced the longtime liberal legal icon's concerns time and time again during congressional hearings. EPA has published its own article pushing back against Tribe's opposition (Greenwire, Jan. 5).
And environmental groups are quick to point out coal giant Peabody Energy hired Tribe to oppose the plan. John Coequyt of the Sierra Club told Greenwire yesterday that Tribe's arguments were "exactly what the coal industry wants to hear."
"That makes sense," he said, "because he is on their payroll" (Greenwire, March 17).
Given all the focus, both positive and negative, it's no surprise that Tribe was the center of attention during yesterday's Energy and Commerce Committee session on the Clean Power Plan. The professor, who has argued numerous cases before the U.S. Supreme Court, delivered some fiery testimony.
He warned that EPA's proposed rule raises "grave constitutional questions" and would "commandeer state governments, treating them more like marionettes dancing to the tune of a federal puppeteer" by requiring regulators to drastically overhaul their states' energy markets.
"EPA is attempting an unconstitutional trifecta," he said. "Usurping the prerogatives of the states, Congress and the federal courts all at once. Much is up for grabs in this complex area. But burning the Constitution should not become part of our national energy policy."Al Gore's former mouthpiece doubts EPA's power
Tribe has championed environmental causes before. He was even part of Vice President Al Gore's legal team during the recount of the Florida presidential vote in 2000. He told the panel he would have no problem with a broad national cap-and-trade system, provided Congress gave EPA authority to create one.
"It seems to me an act of Congress or a series of congressional acts is the only legal way," he said. "Congress has the power to pass for the United States what California has done ... but it didn't succeed. Congress could ... put a huge amount of emphasis on solar, on wind, on geothermal. It really would take an act of Congress," though, he argued. "It's just not enough for an agency to do on its own."
EPA and its defenders say such authority exists in the Clean Air Act and subsequent Supreme Court rulings that have clarified the agency's right to identify and regulate carbon dioxide as a pollutant.
Tribe did concede the type of authorization he mentioned is unlikely, though, given the current political environment. "If Congress were able -- I hate to say this -- to get its act together -- if Congress could act effectively, there's a lot of things it could do," Tribe said.'Ghost' legislation gets resurrected
Analogies and hypotheticals peppered testimony, as Tribe and his fellow witnesses, lawyer Allison Wood and New York University legal professor Richard Revesz, attempted to explain a complex set of policies and legal history to the House subcommittee. Wood compared EPA's building blocks approach to an attempt to regulate vehicle emissions "by requiring car owners to shift some of their travel to buses, or by requiring there to be more electric vehicle purchases."
The comparisons ventured into the comical and surreal. Wood's car scenario led to questions about whether EPA could regulate electric toothbrush use. Tribe at one point referred to the Clean Power Plan as "an attempt to hide a constitutionally troubled elephant in a very tiny mouse hole." And after continued reference to "ghost" legislation resulting from the House and Senate passing two slightly different versions of the Clean Air Act in 1990, Revesz asked at one point to "take a moment to say something about ghosts."
Holding a copy of the Constitution at another point, Texas Republican Rep. Pete Olson said, "I'm looking through this document, it has also the Declaration of Independence and the 27 amendments -- I don't see a ghost version anywhere in this document."
The U.S. Court of Appeals for the District of Columbia Circuit will hear arguments about the Clean Power Plan's legality on April 16. Yesterday afternoon, the court announced that Judges Karen Henderson, Thomas Griffith and Cornelia Pillard will hear the case (E&ENews PM, March 17).
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Coal-Fueled Electric Co-Ops Push Back on EPA Power Plan
Mar 18, 2015 | E&E - TV
What impact will U.S. EPA's Clean Power Plan have on the country's coal-dependent electric cooperatives? During today's OnPoint, Kirk Johnson, senior vice president for government relations at the National Rural Electric Cooperative Association, discusses his organization's opposition to the rule, citing reliability and affordability concerns.Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Kirk Johnson, senior vice president for government relations at the National Rural Electric Cooperative Association. Kirk, thanks for joining me.
Kirk Johnson: Happy to be here, Monica.
Monica Trauzzi: Kirk, your organization represents the country's electric cooperatives, a group that is pushing back strongly against EPA's Clean Power Plan. Your CEO has gone as far as calling the Clean Power Plan EPA's scheme. Why is your group so strongly opposed to this rule?
Kirk Johnson: Well, we have a number of very significant concerns about the rule. Fundamentally, we think that EPA is going outside of what the Clean Air Act allows, and it's a law that was built and designed to say to industrial sources and mobile sources, if you're causing a pollution problem, you're going to attach a piece of equipment to the back of that power plant and clean it up. And unfortunately, that's not what EPA is doing here because there's not a piece of equipment that you can tack onto the back of a power plant to reduce CO2 emissions, and so they've gone far beyond what the Clean Air Act would allow.
And then beyond that, when they did that, they looked at a number of assumptions to come up with each state's target, and in developing those targets, they relied on some information that just doesn't help get them the kind of results that they wanted to get -- an overreliance on natural gas, overemphasis on energy efficiency, overemphasis on renewables in some areas, and co-ops are not opposed to any of those. We have co-ops doing energy efficiency. We have co-ops engaging in solar activities, been using hydropower for decades. But all added up, it results in a bottom line that is going to cause a number of problems, serious problems with complying with the rule if it's in its final form.
Monica Trauzzi: So the big issue for your folks is that many of them are extremely coal-heavy. Why haven't the country's co-ops then done more up until this point to diversify their energy portfolios and leaned towards more clean energy options?
Kirk Johnson: Yeah, co-ops have been building a much more diversified approach for a long time, but we have to go back in some history to really understand where we are today. Back in the late 1970s and early 1980s, the traditional areas where co-ops got their power were drying up, so we needed to build more power plants. At that time, it was right after the Arab oil embargo, and the country's focus was on domestic energy sources. Jimmy Carter went on TV and called for a tripling of coal production in this country, and there was a big push to utilize domestic coal to meet our country's energy needs. And as a result, that confluence of activities where we needed more power right at that time and the policy of the country was to push us to use more coal, two-thirds of all the coal plants co-ops have built in our entire 80-plus years of history were built during that period when Congress banned the use of natural gas under the Fuel Use Act and we had the incidence with Three Mile Island, which essentially took nuclear off the table, leaving us with one option. Now, since then, in the past 10 or 15 years or so, we've developed a whole lot of additional renewable resources, including wind, solar, we've been using hydropower for a long time, so it's more accurate to say we are changing as the times change, but we can't do that without looking back at the history and what got us to where we are.
Monica Trauzzi: But you're still at, what, about 70 percent coal?
Kirk Johnson: Of all the electricity we produce, it's just under 70 percent that comes from coal. We produce about half the electricity that we sell at retail. The rest comes from other sources. So when you look at all of our sources, those that we own and those where we buy power from, it's about 58 percent of our power right now comes from coal.
Monica Trauzzi: So which states do you believe will be hit the hardest in terms of affordability and reliability?
Kirk Johnson: Yeah, we have a number of examples of situations where the co-ops there are in particularly dire straits. Arizona and Florida are two that come most to mind, and it's in part because the way EPA developed the building blocks. They're essentially forcing out all coal, or practically all coal in those two states. And in Arizona, for example, we have one generation and transmission co-op that owns just two coal units and a natural gas unit, and they still have debt on all those units because of when they originally built it and the pollution control equipment they've added since then. And so those consumers are still paying off that debt, and if those coal plants are forced to shut down by about 2020, which is when EPA is planned to enforce that change to happen in Arizona, our folks would have to pay twice -- continue paying off the debt that's there from the past investment and new debt to develop new resources that may not even be available due to transmission constraints, natural gas pipeline constraints, et cetera. In fact, one of our co-ops has a power plant that was built and came online in 2006 in Arizona. And under EPA's plan, all coal in Arizona would go away. So leaving people with that kind of stranded asset is, I don't think, the kind of outcome that EPA is really looking for, but we need to find a way to get out of that.
Monica Trauzzi: So at this point, they're signaling that they will make changes to the building blocks and also some of the state targets. What kind of changes can the agency make then to take into consideration some of the concerns that your group has?
Kirk Johnson: Sure. If they are able to look at the data that we and others have supplied on the true availability of natural gas pipeline capacity, to -- of other limitations on natural gas, other limitations on renewables and other alternatives, we think adjusting those numbers for each and every state is very, very appropriate. But you need to really look at the data that's been submitted, and EPA, I think, is trying to do that. They also need to look at some of the other flexibilities that the Clean Air Act, in fact, calls for in here. the Clean Air Act calls for looking at the remaining useful life of an asset before, you know, determining what the plan's going to be to reduce emissions under the Section 111(d) of the Clean Air Act. And so if they're looking at remaining useful life, they need to account for the fact that some of these plants are really relatively new. They're not even teenagers yet, and those plants have a much longer life ahead of them. They need to make all those kinds of adjustments as they go forward.
Monica Trauzzi: Even though many larger utilities have been stepping away from coal just because it's not as cost-competitive at this point.
Kirk Johnson: People make their own individual, you know, judgments. That's the nice thing about electric co-ops being locally owned and controlled. They focus on what's in the best interest of their consumers in their local community. It's not based on what's best for some faraway investors. It's all about what's best locally for those consumers, and that's where we -- that's where we come from on each and every issue that we try to tackle.
Monica Trauzzi: Senate Majority Leader Mitch McConnell recently urged states not to prepare implementation plans. Do you think that's a good idea?
Kirk Johnson: We are desperately looking to see what the final rule looks like before giving sort of any advice on what the appropriate response is. We certainly think, as I said at the beginning, EPA has gone beyond their legal authority by going outside the fence line on the Clean Air Act, and if you went back to inside the fence line and just looked at what you could do at the efficiency of those power plants, you'd come up with a much simpler approach. Unfortunately, it doesn't quite get to the political agenda that is -- that's being driven here of trying to reduce CO2 emissions to get to that 30 percent number. So I'm not sure how all that's going to work out, but we're not going to be making too many prognostications about what folks should do after the fact until we see what it looks like.
Monica Trauzzi: Greenwire reported earlier this year that your group is ramping up lobbying efforts here in Washington, and you spent almost $2 million in the first three quarters of 2014 on lobbying. What kind of influence has that afforded you?
Kirk Johnson: We have always made the best use of our lobbying, not by the folks who work here in D.C., but by the fact that we truly represent the communities that our co-ops serve, and sort of our true strength comes from the grass roots out there of people who actually understand what happens in their communities when energy prices rise, when the electric grid becomes less reliable, and we work really hard to make sure that those folks have a voice here in Washington, and not just the voice of the lobbyists represented by NRECA. But we submitted nearly 1.2 million comments to EPA on both the rule on existing power plants and new power plants coming from those grass-roots supporters. And I think that's really the story of electric cooperatives and the political strength we have here in D.C.
Monica Trauzzi: All right, we'll end it right there. Thank you for coming on the show.
Kirk Johnson: Thanks, Monica.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
[End of Audio]
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EPA Starts Reviewing 50K Comments on Hot-Button Ozone Rule
Mar 18, 2015 | E&E - Greenwire
By Amanda Peterka
U.S. EPA's proposed tightening of the national ozone standard drew more than 50,000 public comments, many focusing on what the science says is an acceptable exposure level of the pollutant.
Even the number of comments in the federal docket is a matter of contention with environmentalists claiming to have gathered and submitted more than 500,000 statements in support of a more stringent standard.
"This tremendous outpouring of comments highlights the severity of the problem of air pollution and demonstrates that the American people are willing to petition and organize to demand stronger clean air protections," said Verena Owen, lead volunteer at the Sierra Club.
With the comment period over -- it ended at midnight -- EPA is now moving to meet an Oct. 1 court-ordered deadline to consider the input and pick a final standard.
At issue is a component of smog. Ground-level ozone forms when nitrogen oxides react with volatile organic compounds in sunlight.
EPA last November proposed lowering the ozone limit of 75 parts per billion -- set in 2008 during the George W. Bush administration -- to between 65 and 70 ppb. The proposal came as a result of legal agreement with public health advocates after the White House shelved a plan to lower the limit in 2011.
EPA based its proposal on a review of more than 1,000 studies on the public health effects tied to ozone pollution (Greenwire, Nov. 26, 2014).
"Based on [Administrator Gina McCarthy's] evaluation of the latest research," EPA said, "she believes that a standard in the proposed range will provide substantial public health benefits for millions of Americans by reducing both ozone and particle pollution."
EPA's final decision is likely to be among the agency's most controversial actions this year, given the widespread nature of ozone pollution. While a more stringent ozone standard would lead to cleaner air, it would also lead to billions of dollars in compliance costs for industry. States with areas found to be out of compliance will be required to develop and put in place pollution control plans that critics say could stifle economic development.
Under the Clean Air Act, EPA is allowed to consider only public health data when choosing a new standard.
In their comments, public health groups and environmentalists rallied around a call for EPA to set the new standard at no higher than 60 ppb, pointing to research showing negative health effects at higher concentrations.
More than 1,000 health and medical professionals from all 50 states cited controlled human exposure studies that have showed even some healthy adults experience reduced lung function and airway inflammation at exposure levels of 60 ppb and higher.
"The chamber studies establish the strongest evidence that concentrations above 60 ppb provide significant risk not only to many healthy adults, but most critically, to vulnerable and susceptible populations, including children, seniors and people with asthma and other chronic lung diseases," the coalition of medical professionals wrote in a comment letter.
The American Lung Association joined nine environmental organizations in submitting a 286-page comment in support of a 60 ppb standard, arguing that EPA "must err on the side of protecting public health" when there is uncertainty in the science. Thirteen of the nation's largest public health organizations, including ALA, and about 80 environmental groups signed on to separate comment letters.
Industry groups repeated calls for EPA to maintain the standard of 75 ppb, arguing that the science did not justify a lower limit.
Thirty large industry groups -- including the American Petroleum Institute, National Association of Manufacturers and U.S. Chamber of Commerce -- submitted a 160-page comment that will likely serve as the basis for a legal challenge should EPA follow through with a lower limit.
The groups say EPA has not adequately explained its reasoning behind proposing a lower standard, failed to properly consider how naturally occurring background levels of ozone would affect compliance and changed its interpretation of scientific evidence, among other alleged "deficiencies."
They also argued that EPA's actions would be "arbitrary" under the law if the agency revises the ozone standard before the 75 ppb standard is fully implemented.
EPA's proposal "would have widespread and potentially irreparable adverse impacts on the Associations' diverse member companies, as well as their customers, the states and local communities in which they operate, and the overall U.S. economy," the trade groups wrote.Republican opposition
Republicans have slammed the EPA proposal, setting the stage for battles on Capitol Hill over the standard. Several House Republicans yesterday blasted the proposal at a hearing in the House Science, Space and Technology Committee.
GOP lawmakers in the House and Senate yesterday introduced legislation to bar EPA from lowering the standard; the Senate bill has one Democratic co-sponsor, Sen. Joe Manchin of West Virginia (Greenwire, March 17).
In a comment filed yesterday afternoon, Senate Environment and Public Works Chairman James Inhofe (R-Okla.) charged that EPA had underestimated the costs of its proposal and overestimated its benefits. In its regulatory analysis, EPA said that the rule's benefits would outweigh costs by a 3-1 margin.
"While EPA is precluded from considering costs in setting a standard, the sheer economic magnitude of this rule is unprecedented and cannot be brushed under the rug," Inhofe said. "EPA's proposal will restrict economic development and destroy jobs across the country."
In a letter earlier this week, 11 Republican governors also cautioned that EPA's proposal would hurt the economy in areas found to be out of compliance. Several other states individually expressed concerns and called for EPA to retain the existing 75 ppb standard, including South Dakota, Michigan, Kentucky and Texas.
Land commissioners from 23 states in the western half of the country charged that EPA had not considered how rural, high-elevation areas subject to high levels of background ozone would meet the new standard.
In contrast, the National Association of Clean Air Agencies, the nation's largest organization representing state and local air regulators, said it welcomed EPA's proposal, noting that it fell within the range recommended by the agency's scientific advisers. NACAA represents 41 states and 116 local agencies -- all of the nation's local pollution control agencies except for California's San Joaquin County.
"The serious threats to public health from exposure to ozone are well documented," NACAA wrote.
NACAA urged EPA to finalize implementing regulations one year after it finalizes the standard and to timely adopt other federal measures to control emission sources.
A group representing air regulators in eight Northeastern states has also called on EPA to set a more stringent national ozone standard (Greenwire, March 13). Environmental regulators in some states, such as Alabama and Alaska, did not express support for or against EPA's proposal but also urged the agency to issue rules guiding states on compliance at the time it finalizes the standard.
EPA has acknowledged that many of the pollution control technologies needed to meet a tighter standard are not yet available.
The Advanced Engine Systems Institute, which represents manufacturers of emissions control technology, said it would be tough for areas to meet a new protective standard but said that lowering the level would act as a "signal" for the industry to develop innovative technologies.
The institute wrote that it was confident that its members could develop new control devices for vehicles, including nitrogen oxide controls that are 90 percent better than those currently used on new large trucks, that would help make it easier for states to comply.
"If the agency determines that a downward revision in the ozone standard is necessary to protect public health," the institute wrote, "the emissions control industry will redouble its efforts to work with our customers, policymakers and regulators to develop and deploy cost-effective control technologies to ensure that the transportation sector can help nonattainment areas make rapid progress toward meeting the new standard."
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Court Finds EPA Illegally Approved PCB Task Force In Lieu Of State TMDL
Mar 18, 2015 | InsideEPA
By Lara Beaven
A federal district court has ruled that EPA unlawfully approved a Washington state task force to address polychlorinated biphenyls (PCBs) in the Spokane River instead of ensuring the state developed a total maximum daily load (TMDL) waterbody cleanup plan -- though the court found EPA does not yet have to step in with its own TMDL.
But the March 16 decision by Judge Barbara J. Rothstein of the U.S. District Court for the Western District of Washington sidesteps the opportunity to further define the boundaries of the so-called constructive submission doctrine outlining when EPA must develop a TMDL for states that fail to craft their own plans.
The ruling in Sierra Club, et al. v. Dennis McLarren, et al. remands the issue to EPA for further consideration and requires the agency to work with the Washington Department of Ecology to take specific steps to ensure the task force's work will result in a state-developed TMDL that EPA will then either approve or disapprove.
“There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken,” the ruling says. “With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support. Accordingly, the Court finds that the EPA acted contrary to [the Administrative Procedure Act (APA)] in finding the Task Force, as it is currently comprised and described, a suitable 'alternative' to the TMDL.”
Rothstein nevertheless avoided weighing into debate over the constructive submission doctrine, first outlined in 1984 by the U.S. Court of Appeals for the 7th Circuit in Scott v. City of Hammond, IN, and also discussed by the 9th Circuit in the 2002 ruling San Francisco BayKeeper v. Whitman.
States with delegated Clean Water Act (CWA) authority are required to periodically determine which waterbodies within their borders are impaired and then develop TMDLs for the waterways, subject to EPA approval. If EPA rejects a state's TMDL, the agency is required to step in and prepare one. But the law is silent on EPA's responsibilities if a state abdicates its duty to submit a TMDL.
The 7th Circuit in Scott held that “if a state fails over a long period of time to submit proposed TMDLs, this prolonged failure may amount to the constructive submission by that state of no TMDLs,” thereby triggering the EPA’s mandatory duty, Rothstein says.
And the 9th Circuit in San Francisco BayKeeper, citing Scott, “held that state inaction can amount to a constructive submission if a state 'clearly and unambiguously' indicates that it will not submit any TMDLs,” she says, noting that the 9th Circuit case dealt with whether California's “failure to produce a significant number of TMDLs constituted aprogrammatic failure for the entire state.”
Draft TMDL
In the Spokane River case, the state began developing a PCB TMDL and circulated a draft document among stakeholders, although did not, according to the court's findings, formally propose the draft TMDL.
But instead of moving forward with a TMDL for the state's river with the highest levels of PCB contamination, the Department of Ecology issued the Spokane River Source Assessment Report, citing a lack of data to complete a TMDL and noting the difficulty in setting wasteload allocations below background levels.
CWA discharge permits issued since 2010 do not include the PCB limits in the draft TMDL but conditioned permit issuance on the dischargers' participation in a regional toxics task force to find ways to meet water quality criteria for PCBs. And the state said that if the task force failed to make progress, it would move forward with a TMDL.
The plaintiffs argued that the state's actions violate the CWA because it essentially completed a TMDL and then abandoned it for alternative actions that “unambiguously indicate Ecology will never comply with its statutory obligations, thus requir[ing] the EPA to prepare the TMDL,” Rothstein says summarizing the plaintiffs' position.
EPA and the state “counter that information gaps, scarce resources, and lengthy administrative processes led Ecology to adopt an alternative approach, for the time being, without ruling out a TMDL in the future,” she adds.
“In examining whether Ecology 'clearly and unambiguously' decided not to submit a TMDL for PCBs in the Spokane River, the Court is confronted with an issue that has not been directly addressed by any other court: at what point does a state’s failure to prepare a particular TMDL ripen into a constructive submission?”
But Rothstein says the court “need not define the precise contours of this doctrine at this time,” finding the record demonstrates the state had sufficient reasons for not completing the TMDL -- the lack of scientific data and public notice and comment.
Nonetheless, Rothstein finds EPA violated the APA when it approved the regional task force in lieu of a TMDL. While states may pursue reasonable courses to reduce pollution in addition to establishing TMDLs, “nothing in the CWA provides that states may pursue these courses in place of, or as a means of indefinitely delaying, a TMDL,” she says.
The court notes that Ecology has indicated it is pursuing the task force in place of a TMDL because the TMDL would establish “an impossible near-term target” and that it would revisit the TMDL only if the task force fails to make measurable progress. But the state did not define what constitutes measurable progress, “nor did it clearly illustrate how the Task Force would produce or assist in preparing a TMDL. Even more troubling, Ecology provides no firm deadline for when the Task Force will end and Ecology will submit a TMDL,” the ruling says.
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EPA Eyes Broader Use Of Guide To Cut Emissions From Existing Drill Sites
Mar 18, 2015 | InsideEPA
By Stuart Parker
EPA's top air official is asking states if they plan broader use of agency guidelines for cutting volatile organic compounds (VOCs) at existing drilling operations -- a measure that is likely to have a co-benefit of also reducing methane, the potent greenhouse gas (GHG) -- than in the air quality non-attainment areas for which it is intended.
Speaking March 16 to state environmental regulators at the Spring meeting of the Environmental Council of the States (ECOS) in Washington, D.C., acting EPA air chief Janet McCabe asked state officials if they intend to use the upcoming “control techniques guidelines” (CTGs) in areas that attain the agency's ozone air quality standards, as well as the non-attainment areas for which it is generally intended.
McCabe asked states if they are “considering that [the CTGs] could apply more broadly,” in areas meeting the ozone national ambient air quality standards (NAAQS) as well as those that do not meet the NAAQS.
EPA is soliciting advice from states on this and other aspects of drilling regulation, she said, seeking to draw on the knowledge of states such as Colorado that already have substantial experience in this area. At present, the agency is working with a group of 11 states that have volunteered to share expertise, but McCabe invited others to join the effort if they wish.
EPA's new source performance standards (NSPS) for oil and gas drilling already control ozone-forming pollution from volatile organic compounds (VOCs) from new wells, requiring in most cases the capture of waste natural gas at well sites using a method known as “green completion.”
The approach has resulted in the co-benefit of reducing methane emissions, a point highlighted by many in industry to argue against direct regulation of methane.
But EPA and others say the rule has not done enough to regulate methane and the the agency is now working to propose new standards to also directly control methane from new wells and modified wells.
EPA plans to propose a revised NSPS this summer, and also draft CTGs that will aid states in cutting VOCs that contribute to non-attainment with ozone air quality standards. The CTGs will apply in areas currently out of attainment with the agency's ozone NAAQS and in the Ozone Transport Region of states with high ozone levels.
Because controlling VOCs has a co-benefit of reducing methane, many in industry hope the CTGs will help limit the need for EPA to eventually write a rule regulating methane at existing drilling sites. But environmentalists say that once EPA regulates new sources, it has a mandatory duty to regulate existing sources, though EPA says it has a lot of discretion to determine when the agency is required to do so.
McCabe explained that the CTGs “are not rules, but they kind of look like rules.” States can adopt the guidelines directly, or adopt something equivalent. The CTGs apply in areas that are classed in “moderate” or worse nonattainment with the ozone NAAQS, where reasonably available control technology is required to curb emissions.
McCabe noted that frequently, ozone problems are worsened by emissions from industry outside a nonattainment area's political boundaries, such as county or state borders. States have often found it helpful to define nonattainment areas to include surrounding areas where industry or other sources of ozone-forming emissions are located, she said.
EPA has hinted at such an approach before. When the administration announced its plans last January, EPA noted in a fact sheet that the CTGs will provide states and tribes with a voluntary “model they can put in place to address emissions from sources in other areas where oil and gas activities are concentrated.”
She also said that ECOS' recently launched e-MATRIX database of state documents on emissions reduction will be very helpful to EPA as it crafts new rules.
Innovative Strategies
In her comments, McCabe also emphasized that innovative compliance options will be essential to successfully implement the agency's nascent strategy to reduce methane and other pollutants from oil and gas drilling, given limited state and federal resources to inspect thousands of far-flung wells.
She touted the cost-effectiveness of regulating air emissions from drilling, though she conceded that to work, the agency's strategy must employ novel implementation techniques to reduce methane and other pollution.
The “great advantage of regulating this space” is that “the reductions are so cost-effective, the reductions are so large,” McCabe said.
Her comments echo claims from environmentalists. Environmental Defense Fund (EDF), for example, has long touted a March 2014 study it commissioned from consulting firm ICF International that found that with existing technologies and practices, “industry could cut methane emissions by 40 percent at a cost of less than a penny per thousand cubic feet of produced natural gas,” EDF says.
But to fulfill its promise of highly cost-effective pollution cuts, EPA regulation must be paired with methods to ensure compliance is not excessively onerous, McCabe said.
“We need to be really thinking about the kinds of approaches that are easily verifiable,” McCabe said. In practice, this might mean remote sensing and electronic reporting of leaks in equipment that can be used continuously, and at low cost.
Speaking at the same event, EDF's Mark Brownstein said that in general, green completion is a “phenomenally effective technology,” with proven benefits. However, information on air emissions from oil and gas production is still dependent on EPA “emissions factors” that regulators and industry use to estimate the projected emissions from a given type of equipment.
Environmentalists frequently question the accuracy of emission factors, for example in air toxics regulation of oil refineries, where some groups say the factors rely on flawed assumptions and can underestimate true emissions by an order of magnitude. Brownstein said that EDF's hope is that by conducting more site surveys, “we can get better information.”
What is clear, Brownstein said, is that a minority of pieces of equipment is responsible for the large majority of emissions, but that “these emissions are randomly distributed,” making them hard to predict. This underscores the value of “robust” leak detection and control, he said.
EDF has commissioned ICF International to survey existing emissions control technologies, Brownstein said, and is also supporting pilot programs testing real-time leak detection methods. Such methods alert an operator electronically when a threshold level of emissions is breached, and can provide a continuous record of emissions performance.
Using such remote monitoring methods would be much more cost-effective than in-person inspections, Brownstein said. Two such methods have passed field testing, Brownstein said, adding that within six to 12 months, “we will have something more substantial to say on cost-effectiveness.”
The focus of EDF's work in this area has been drilling sites themselves, but also includes natural gas gathering and processing facilities, Brownstein said.
Meanwhile, Pam Lacey of the American Gas Association, representing investor-owned gas utilities, focused on the challenges utilities face in repairing leaks from older pipes in the downstream gas distribution network. This is an issue primarily in older cities along the “Amtrak corridor” along the East Coast, she said.
Utilities are looking to replace old pipe and curb venting of gas when they make repairs, but must balance the costs of replacement against costs to consumers and returns on investment demanded by Wall Street, Lacey said. Utilities are answerable to public utility commissions that are “economic, not environmental regulators,” she said.
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Greens Want Clinton Emails on Keystone
Mar 18, 2015 | The Hill - E2 Wire
By Timothy Cama
An environmental activist group is filing a request for former Secretary of State Hillary Clinton’s private emails regarding the Keystone XL pipeline.
Following news that Clinton exclusively used a private email account during her tenure as secretary, Friends of the Earth said some of those communications might reveal important details about the State Department’s consideration of Keystone.
The group had previously filed four requests with State under the Freedom of Information Act (FOIA), but never received any emails from Clinton.
“Obviously, we now know why,” said Ben Schreiber, climate program director at Friends of the Earth.
“We are concerned that these records were not included as part of our prior FOIA requests surrounding the State Department’s environmental review of Keystone XL,” Schreiber said in a statement.
“Secretary Clinton’s willful circumvention of this accountability mechanism goes against the spirit of transparent governance.”
The records the group has received showed various conflicts of interest in State’s process for determining whether Keystone would be in the country’s national interest, Friends of the Earth said.
“It is clear that State Department staff had cozy relationships with lobbyists, the government of Canada and the contractors hired to conduct the supposedly independent review,” Schreiber said.
Since Clinton’s private emails were not part of State’s email system, they were not included in FOIA responses.
Clinton has since agreed to send all of her business emails to State, where they will be filed for requests.
The Associated Press has filed its own FOIA lawsuit against State over the Clinton emails, citing multiple unfulfilled requests for her communications.
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Refiners Group Wants Broader Approach to Crude-By-Rail Safety
Mar 18, 2015 | Fuel Fix
By Jennifer A. Dlouhy
Federal regulators seeking to boost the safety of moving oil by rail should focus on improving the integrity of the nation’s train tracks, not just the tank cars that carry crude, a top refining industry representative says.
Charles Drevna, head of the American Fuel and Petrochemical Manufacturers, questioned “how strong a role prevention is playing in the Department of Transportation’s comprehensive strategy” for combating crude-by-rail derailments, in a letter to Transportation Secretary Anthony Foxx.
“Any effort to enhance rail safety must begin with addressing track integrity and human factors, which account for 60 percent of derailments,” Drevna said in his letter, sent Monday and released Tuesday. “Investments in accident prevention would result in the greatest reduction in the risk of rail incidents.”
The department’s Pipeline and Hazardous Materials Safety Administration is expected to roll out a final rule setting tougher design specifications for tank cars that carry crude and ethanol later this year. The PHMSA proposal unveiled last year would also impose new speed limits and require better braking systems for trains heaving highly hazardous material, including crude and ethanol.
But oil industry representatives have sought a more “holistic approach,” with many efforts aimed at keeping trains on the track.
Drevna said his group remains “disappointed” that nothing in PHMSA’s proposal “required railroads to buy one more piece of track inspection equipment, hire one more qualified inspector or inspect one more mile of track.”
On Capitol Hill, some lawmakers are growing increasingly frustrated with delays in finalizing those tank car regulations, even as they urge regulators to tackle other issues by setting limits on the amount of volatile gases in crudetransported by rail and improving the integrity of roadbeds and tracks.
Related story: Wisconsin Democrats want oil train rules on fast track
Acting Federal Railroad Administrator Sarah Feinberg told reporters Friday that railroads have made efforts to boost the safety of transporting oil.
“We are running out of things that I think we can ask the railroads to do,” she said, according to published accounts. “We’re running out of things that we can put on the railroads to do, and there have to be other industries that have skin in the game.”
Drevna took issue with that characterization, noting that tank cars built since October 2011 have exceeded existing federal design requirements, instead hewing to a voluntary industry standard.
“AFPM and its members understand that rail safety is a shared responsibility between the shippers and the . . . railroads and we are doing our part as shippers,” he said. “Rail car standards only address one element of rail safety: mitigation after derailment. Measures must also be taken to address what has been continuously shown to be the lead cause of rail accidents: track integrity.”
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At White House, Oil Sands Group Stands By Embattled Tank Cars Used to Haul Crude
Mar 18, 2015 | E&E - Energywire
By Blake Sobczak
A group of Canadian oil sands producers is pushing to keep a 2011 rail tank car standard in place despite a string of recent accidents that have stoked concerns about the design's integrity.
The In Situ Oil Sands Alliance (IOSA), whose members include producers such as Osum Oil Sands Corp. and MEG Energy Corp., met with officials at the White House's Office of Information and Regulatory Affairs last Wednesday to lobby on new regulations that would update decades-old tank car requirements for moving crude oil by rail. "In situ" refers to a type of oil sands development that is similar to conventional drilling.
IOSA said an "enhanced version" of the 2011 tank car already in production would be "a prudent standard that offers substantial safety improvements," according to a slideshowpresented to White House officials and transportation regulators at the March 11 meeting.
Four days before the meeting, a Canadian National Railway Co. train hauling oil from North Dakota jumped the tracks and exploded near Gogama, Ontario. The 39 tank cars that derailed in that accident were built to the 7/16th-inch-thick, type CPC-1232 standard favored by IOSA, although the oil sands group has called for additional thermal protection for new cars.
The Canadian government recently proposed tank car regulations that would see even newer CPC-1232s scrapped or retired from crude service by 2025 (EnergyWire, March 13).
Safety officials have questioned that timeline in light of a string of accidents and fires in Ontario, West Virginia and Illinois -- all of which involved cars built since 2011. The March 7 oil train derailment in Gogama was the second train crash and explosion in the area in under a month.
Canada's independent Transportation Safety Board said yesterday that while Transport Canada's proposals "look promising, the TSB has concerns about the implementation timeline, given initial observations of the performance of CPC-1232 cars in recent derailments."
The TSB said the tank cars in the most recent Gogama derailment "performed similarly" to the older type DOT-111 cars in a 2013 derailment and explosion that killed 47 people in Lac-Mégantic, Quebec.
"Rightfully, Canadians are concerned," said Keith Stewart, climate and energy campaigner with Greenpeace Canada. "We watched 47 people die in Lac-Mégantic, we watched explosions continue to happen on a regular basis, and we have our TSB saying to the federal government, 'What you have done isn't good enough.'"
Asked for comment about IOSA's defense of the CPC-1232 standard, Stewart said, "They want to cut corners on safety to keep their costs low, and I hope governments won't let them get away with it."
IOSA didn't respond to messages seeking comment yesterday. The group's position differs from other oil industry trade groups in North America. The American Petroleum Institute, which represents U.S. producers, and the Canadian Association of Petroleum Producers have both called for new tank cars to have half-inch-thick steel shells -- thicker than existing CPC-1232s.
Transport Canada's latest proposal would go above and beyond that suggestion, requiring a 9/16th-inch-thick steel shell for tank cars hauling crude and ethanol, as well as full-height head shields and other safety features.
IOSA argued at the White House meeting that thicker steel would push more tank cars onto the tracks, as each car would be able to hold less product.
The group estimated that it would take an additional 12,500 annual carloads to move crude in 9/16th-inch-thick tank cars compared with slimmer designs, noting "29 additional main track accidents could be expected as a result (including derailments, collisions, and accidental releases)."
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