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ACC PM Mar 19
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(ACC Mentioned) Did the Chemical Industry Write Its Own Oversight Legislation?
Mar 19, 2015 | The Nation
By Zoë Carpenter
For an instructive example of how unfettered money in politics corrupts the legislative process, consider a chemical safety bill under deliberation in the Senate. The legislation, sponsored by Louisiana Republican David Vitter and New Mexico Democrat Tom Udall, would reform the 1976 Toxic Substances Control Act (TSCA)... -
(ACC Mentioned) Boxer: Industry Lobbyist Authored Chemical Safety Bill
Mar 19, 2015 | Democracy Now!
The chemical industry’s top lobby group has reportedly drafted a chemical safety bill before Congress. The bill is sponsored by senators Tom Udall, a Democrat, and David Vitter, a Republican. But Democratic Sen. Barbara Boxer says a digital copy she received proves the authorship of lobbyists. Information imbedded inside Microsoft Word... -
(ACC Mentioned) California Senator Wants Clearer Labels On Baby Furniture Containing Flame Retardants
Mar 19, 2015 | Consumer Affairs
By Stacey Cohen
Fire is dangerous but so are the chemicals that slow the spread of flames in furniture. And a California state senator thinks parents should have a choice about which risks their children ae exposed to. Sen. Mark Leno (D-San Francisco) is pushing a bill that would require juvenile products to be clearly labeled with whether or not they contain flame... -
(ACC Mentioned) Ban Averted On Key Spandex Fibres Substance
Mar 19, 2015 | Just-Style
By Leonie Barrie
The United Nations (UN) has unanimously rejected a proposal to ban a key building block in the production of spandex fibres – in a decision that eliminates the immediate risk of worldwide bans or restrictions on the substance. The ruling was in response to a recommendation from the World Health Organization to list 1,4-butanediol (BDO)... -
Despite Veto Threats, House Of Representatives Passes EPA Science Bills
Mar 19, 2015 | Chemical & Engineering News
By Steven K. Gibb
The House of Representatives has passed two controversial bills targeting how the Environmental Protection Agency uses scientific data and receives scientific advice in order to regulate. But even if the measures survive Senate votes, they would surely face White House vetoes. -
Preemption 'Critical' TSCA Issue for White House, Says EPA
Mar 19, 2015 | Chemical Watch
The issue of state preemption, and whether it strikes the right balance between federal and state government authority, will be critical to how the Obama administration reviews any Toxic Substances Control Act (TSCA) reform bill, the head of the EPA's chemicals office told Congress on Wednesday. -
US Business Group Prefers Boxer TSCA Reform Bill
Mar 19, 2015 | Chemical Watch
By Leigh Stringer
A group of US businesses is supporting a bill, proposed by two Democratic senators as a more radical alternative for reforming the 40-year-old Toxic Substances Control Act (TSCA) than the bipartisan bill endorsed by chemical industry trade bodies. The Companies for Safer Chemicals coalition, coordinated by the American Sustainable Business... -
Key Dems Remain Wary While Bipartisan TSCA Bill Supporters Urge Change To 'Status Quo'
Mar 19, 2015 | E&E Daily News
By Sam Pearson
Suspicion of chemical industry influence and concern over U.S. EPA's history of slow regulation of chemicals have made a bipartisan proposal to reform the 1974 Toxic Substances Control Act a tough pill to swallow for several key Democrats, though the bill's supporters contend the only way to change the status quo is through their ... -
Our Broken Congress’s Latest Effort To Fix Our Broken Toxic Chemicals Law
Mar 19, 2015 | The Washington Post
By Puneet Kollipara
Chemicals are everywhere — we’re made of them, and so are the products we use and the objects we come into contact with. Naturally, some of these substances could be bad for our health, perhaps capable of causing cancer and other diseases. Regulators have presumably barred unsafe chemicals from being made and used, right? Not so. -
Industry Donations Pour in to Reform Bill Sponsors -- Report
Mar 19, 2015 | E&E - Greenwire
Chemical industry campaign contributions have flowed to lawmakers co-sponsoring a new chemical safety bill that is favored by the companies. MapLight, a nonpartisan group that studies campaign contributions and lobbying, noted in the report that the 17 sponsors of S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act,"... -
US EPA Receives 83 Pre-Manufacturing Notices
Mar 19, 2015 | Chemical Watch
The US EPA received 83 pre-manufacturing notices (PMNs) for new chemicals between 2 and 30 January. Several have their manufacturer, or importer, protected as confidential business information. During the same period, the agency received nine notices of commencement to manufacture new chemicals and four ... -
US Extends Consultation on Phthalates in Toys Ban
Mar 19, 2015 | Chemical Watch
The US Consumer Product Safety Commission has extended to 15 April the comment period on its proposed rulemaking to prohibit certain phthalates in children's toys and childcare articles (CW 12 January 2015). The original comment deadline was 16 March. -
US Office Publishes Methods Protocol On Cobalt And Cancer
Mar 19, 2015 | Chemical Watch
The US Office of the Report on Carcinogens (ORoC) has released a protocol describing the methods being used to prepare the cancer evaluation component of its draft monograph on cobalt and certain cobalt compounds. The Report on Carcinogens is a congressionally mandated, science-based, public health document prepared each year by... -
US Public Health Body Issues Latest Biomonitoring Report
Mar 19, 2015 | Chemical Watch
The US Centers for Disease Control and Prevention has updated its 2009 fourth national report on human exposure to environmental chemicals. The report is a series of ongoing biomonitoring assessments of the US population, which measure chemicals in people's blood and urine. -
Groups Ask White House to Speed Up EPA's Review of Facility Regulations
Mar 19, 2015 | E&E - Greenwire
By Sam Pearson
Chemical safety groups are urging President Obama to push U.S. EPA to speed up a series of regulations on chemical facilities, calling them vulnerable to industry challenges if they are not accelerated. U.S. EPA has signaled that it plans to publish a notice of proposed rulemaking in September, according to a notice published by the Office of ... -
Stung By Oil's Fall, Bidders Barely Show Up For Latest Federal Lease Sale
Mar 19, 2015 | E&E - Energywire
By Nathanial Gronewold
A huge offshore drilling lease sale held in New Orleans yesterday drew far less interest than hoped as crude oil prices seem to have severely dampened the industry's enthusiasm for participation. The Bureau of Ocean Energy Management reported weak interest for one of its largest lease auctions to date, Sale 235, covering the ... -
Growing U.S. Oil Export Debate Has Now Spread to Geopolitics
Mar 19, 2015 | Reuters
By Valerie Volcovici
Lifting the longstanding ban on U.S. crude oil exports would boost the country's economy and enhance its global leadership, a former senior Obama administration official will tell senators on Thursday, introducing a strategic dimension to the growing debate over selling American oil abroad. -
The Constitutional Foundation for the Clean Power Plan
Mar 19, 2015 | The Hill - Congress Blog
By Michael B. Gerrard
As members of Congress wisely examine the legal basis for the Clean Power Plan, they should feel confident that the Environmental Protection Agency is acting with a solid constitutional foundation. At a Tuesday hearing of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce, two eminent legal... -
Obama to Order Emissions Cuts in Federal Agencies
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama will sign an executive order Thursday ordering federal government agencies to slash their greenhouse gas emissions. A White House official said the order is a way for the government to “lead by example” by curbing emissions of carbon dioxide and other gases believed to cause global warming. -
Obama to Seek 40 Percent Cut in Federal Greenhouse Gases
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama signed an executive order Thursday to cut the federal government’s greenhouse gas emissions 40 percent over the next decade. The effort will save taxpayers as much as $18 billion due to energy savings, the White House said. “Today, America is going to be once again leading by example,” Obama said in brief remarks... -
EPA Draws Tough Panel For Climate Case
Mar 18, 2015 | PoliticoPro
By Erica Martinson
EPA will face a tough panel of judges at the U.S. Court of Appeals for the D.C. Circuit for the trio of cases over the its proposed greenhouse gas rule for power plants. Judges Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh will hear the State of West Virginia v. EPA and In re: Murray Energy Corp. on April 16. (West Virginia... -
Ozone Pollution in the West: The Good, the Bad, and the Ugly
Mar 18, 2015 | Environmental Defense Fund
By Jon Goldstein
Long familiar in major urban areas, smog – what we experts call “ground-level ozone” pollution – is quickly becoming a serious problem in the rural mountain west, thanks to rapid expansion in oil and gas development. Smog serious health impacts like aggravated asthma, chronic bronchitis, heart attacks, and even premature death. -
States Back House Coal Ash Bill But Democrats Seek Stricter Protections
Mar 19, 2015 | InsideEPA
By David LaRoss
State regulators are backing House Republicans' draft bill to overhaul parts of EPA's final coal ash waste disposal rule because it would give states primary authority to craft and enforce disposal standards, but Democrats are pushing back against what they see as a substantial weakening of the EPA rule's technical disposal requirements. -
Coal Set for SCOTUS Showdown
Mar 19, 2015 | PoliticoPro
By Erica Martinson
The Supreme Court is about to hear a set of legal challenges to President Barack Obama’s biggest environmental regulation to date — one that bears much of the responsibility for the trend of coal-burning power plants shutting down. Next week’s oral arguments will give states and industry groups a last-ditch chance to try to derail ... -
When Legally Liable, Companies Don't Dispute Global Warming
Mar 19, 2015 | E&E - Greenwire
By Jean Chemnick
U.S. coal companies that are publicly skeptical of man-made climate change acknowledge in mandatory financial disclosures the widely accepted scientific link between fossil fuel emissions and a warming planet, a Greenwire analysis has found. Sustainable investment advocates warn that such doublespeak undermines the industry's... -
Greens Escalate Opposition to Waste-Handling Legislation
Mar 19, 2015 | E&E Daily News
By Manuel Quiñones
Environmental groups are speaking out against draft legislation to regulate the disposal of coal-combustion waste as U.S. EPA prepared to publish the first national rules on the issue. Coal-state lawmakers, utilities and coal ash recycling interests have for years worked to address ash disposal through legislation, fearing EPA would... -
Towns Launch 'David and Goliath' Challenges to Crude-By-Rail Traffic
Mar 19, 2015 | E&E - Energywire
By Blake Sobczak
Jim Adams, mayor of Crystal, Minn., said he and his constituents are "going to make as much noise as we can" over a half-mile stretch of train tracks that haven't even been built. The result? Several packed public meetings, an unusual multimillion-dollar real estate deal and even state legislation that would bring the matter to President Obama's desk. -
House Democrats File $1B Rail Safety Bill
Mar 19, 2015 | The Hill - Transportation
By Keith Laing
A group of House Democrats is calling for Congress to spend $1 billion over the next five years on boosting the safety of U.S. commuter railways after a recent string of accidents. The funding is contained in a piece of legislation introduced by Reps. Dan Lipinski (D-Ill.) and Mike Quigley (D-Ill.) that has been dubbed the Reassuring Adequate Investment in Lifesaving Systems (RAILS) Act. The lawmakers said the measure calls for spending $200 million per year on “positive train control safety technologies, rail integrity inspection systems, a system for electronic communication regarding hazardous material rail shipments, and other new rail safety items.” ADVERTISEMENT “Representing a district that includes four commuter rail lines, Amtrak, and six of the country's seven Class I freight railroads, I understand how important rail safety is,” Lipinski said in a statement. “This bill dedicates funding and resources to benefit the safety of millions of Americans as a key part of the Chicagoland economy moves to modernize its safety systems to comply with the positive train control requirement.” The introduction of the legislation comes weeks after lawmakers in the Republican-led House passed a passenger rail bill that authorized $7.8 billion for Amtrak. Transportation Policy Best Sellers: Sustainable Transportati… William R. Black (Hardcover… $51.90 An Introduction to Susta… Preston L. Schiller, Eric Bru… $41.24 Transportation Planning … Mark Garrett, Martin Wachs … $59.38 12> Get WidgetPrivacyAmazon.com The sponsors of the new legislation said it is important to boost funding for the nation’s other commuter railways as well. “As the nation’s rail hub, nowhere are investments in safety technology more crucial than in Chicago. Yet, commuter railroads like Metra lack the funding necessary to ensure new safety technologies, like positive train control, are implemented the right way,” Quigley said. “Reauthorizing the Rail Safety Technology Grant program will provide the critical funding and support needed for commuter railroads around the country to modernize their infrastructure and keep their passengers safe.” The 2008 rail safety bill contained a mandate for the automatic railway navigation systems that are known as positive train control (PTC) that have become controversial in the intervening years. The 2008 measure required rail companies to have the PTC automatic control systems in place by this year. The mandate was enacted in the wake of a crash on California’s Metrolink commuter railway that year that involved a commuter and a freight train colliding head-on in a crash that killed more than 20 people. Rail companies have said since then the deadline is too burdensome to meet. "Due to PTC's complexity and the enormity of the implementation task — and the fact that much of the technology PTC requires simply did not exist when the PTC mandate was passed and has had to be developed from scratch — much work remains to be done," the Association of American Railroads said in a post on its website. "Despite railroads' best efforts, various technical and non-technical challenges make full development and deployment of PTC by 2015 impossible," the AAR continued. Republicans have warned of the dangers of overreacting to the string of accidents on Amtrak and commuter railways in New York and California. "I think it's something like 90 percent of the deaths that occur within the railroad industry are because either people run grade crossings or they trespass onto the property and they get run over by a train," House Transportation Committee Chairman Bill Shuster (R-Pa.) said during a briefing with reporters at the Capitol on Wednesday. "If we could outlaw stupidity, we'd try to do that, but it's a hard thing to do," Shuster continued. The sponsors of the new legislation said their measure would help rail companies get over the finish line with automatic train control, despite the GOP's admonitions about over-regulating the rail industry. “The Railroad Safety Technology Grant Program was first authorized under the Rail Safety Improvement Act of 2008,” the lawmakers’ offices said in a statement. “The program authorizes the Department of Transportation to provide grants to passenger and freight rail carriers, railroad suppliers, and state and local governments for projects that have a public benefit of improved railroad safety and efficiency. Reps. Quigley and Lipinski helped set aside $60 million in the FY14 omnibus to fund this project in its final year.” The measure is cosponsored by Reps. Bobby Rush (D-Ill.)... -
Coming Off the Rails? Safety Risks in Crude By Rail: Kemp
Mar 19, 2015 | Reuters
By John Kemp
Trains carrying oil or ethanol have derailed and caught fire at more than a dozen locations across the United States and Canada in the last five years. Train fires have prompted a fierce debate about the risks of moving large volumes of highly flammable liquids across the rail network and who should be responsible for improving safety.
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(ACC Mentioned) Did the Chemical Industry Write Its Own Oversight Legislation?
Mar 19, 2015 | The Nation
By Zoë Carpenter
For an instructive example of how unfettered money in politics corrupts the legislative process, consider a chemical safety bill under deliberation in the Senate.
The legislation, sponsored by Louisiana Republican David Vitter and New Mexico Democrat Tom Udall, would reform the 1976 Toxic Substances Control Act (TSCA), which the chemical industry and environmental and public health advocates alike say is severely outdated. In the absence of solid federal protection from the roughly 1,000 chemicals that the Environmental Protection Agency judges as potential health hazards, more than half the states have picked up the slack by putting their own regulations in place. The bill’s opponents warn it would undermine these state laws, without strengthening the EPA’s oversight powers enough to compensate. Unsurprisingly, the proposed overhaul has the “unequivocal support” of the chemical industry.
One of the bill’s chief critics is Barbara Boxer, the ranking Democrat on the Environment and Public Works Committee. Boxer, who has introduced a competing bill with stronger consumer protections, has been highly critical of the role chemical companies have played in the development of the Udall-Vitter legislation. “I’ve been around the Senate for a long time, but I have never before seen so much heavy-handed, big-spending lobbying on any issue,” Boxer was quoted saying in a New York Times article in early March. “To me it looks like the chemical industry itself is writing this bill.”
Boxer may have been right to question its authorship. Early in the week Hearst Newspapers got its hands on a draft version that was circulated by Udall’s office in anticipation of a committee hearing on Wednesday. Someone at Hearst checked the authoring information contained in the Word document—and found that it originated with the American Chemistry Council, the “leading trade organization and lobbyist for the chemical industry.”
Although Udall has a strong environmental record, he’s become cozy with ACC and other industry groups over the two years he’s spent working on the TSCA overhaul, as the same Times article revealed. He has raised “tens of thousands” of dollars from chemical interests, and the ACC even ran a television ad on his behalf. “The leadership he is providing is absolutely critical,” the group’s president and lobbyist Cal Dooley told the Times. Udall and the other 16 cosponsors of his legislation received, on average, about 70 percent more from chemical companies than other senators.
Udall’s office and ACC insist the digital link between the document and the lobby group indicates only that after Udall’s office circulated the draft to stakeholders, someone at ACC saved a version and sent it back to the senator’s staff. But the Environmental Working Group, one of the bill’s chief opponents, and Boxer’s office told the SF Gate the draft version they received had the same authoring information.
Even if the bill didn’t fully originate with ACC, it’s clear that the chemical industry—which has a financial incentive to keep regulations loose—has left its mark on the Udall-Vitter legislation. The bill would bar states from regulating a chemical once the EPA designates it as “high priority” for assessment, a process that can take up to seven years. It requires the EPA to start reviewing a minimum of 25 chemicals within five years, but at that rate, it could be centuries before the agency got through the 1,000 chemicals is says need assessment. (To make matters worse, the underfunded EPA is known for missing deadlines.) To date the EPA has only ever banned five chemicals, and mandated testing on a mere 200 of the 80,000 in use in the US.
Consumer advocates worry that if the bill passes, protections already in place would be completely undone while the EPA proceeeds to examine only a small number of chemicals at a glacial pace. A number of organizations including Physicians for Social Responsibility, the Natural Resources Defense Council, United Steelworkers, and the Breast Cancer Fund, along with eight state attorneys general, have pointed out these and other serious flaws. Some, like the Environmental Working Group, consider it worse than the existing regulatory framework; EWG says it “fail[s] to ensure that chemicals are safe, fail to set meaningful deadlines for safety reviews, fail to provide EPA with adequate resources and deny states the ability to protect public health and the environment.”
Nevertheless, in a sign of how broken the 1976 law is—the oft-repeated example is that it doesn’t even allow the EPA to ban asbestos—other health and environmental groups support the bill anyway. Anything stronger, they say, and the bill will lose Republican support, making it impossible to pass. “I don’t want to be facing another Senate committee twenty years from now, testifying about a sixty-year old law. Nor do I want have to tell my daughter that she and her future children will not have a greater level of protection because we failed to pass a good, even if not perfect, law,” Lynn Goldman, a professor of environmental health at George Washington University, testified before the Senate committee on Wednesday.
It may be true that a bill that truly protects consumers from harmful chemicals can’t pass Congress in its current form. But that’s a stone that shouldn’t be cast against advocates for something better than the Udall-Vitter compromise. It’s an indictment of the pay-to-play political system and the legislators who gamely reward their corporate sponsors.
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(ACC Mentioned) Boxer: Industry Lobbyist Authored Chemical Safety Bill
Mar 19, 2015 | Democracy Now!
The chemical industry’s top lobby group has reportedly drafted a chemical safety bill before Congress. The bill is sponsored by senators Tom Udall, a Democrat, and David Vitter, a Republican. But Democratic Sen. Barbara Boxer says a digital copy she received proves the authorship of lobbyists. Information imbedded inside Microsoft Word shows the "company" of origin for the document is the American Chemistry Council.
Sen. Barbara Boxer: "Now, maybe I am old-fashioned, but I don’t believe that a regulated industry should be so intimately involved in writing a bill that regulates them. The voices of public health and safety organizations that speak for our citizens must be heard. Their views must not be drowned out by the very industry that is supposed to be regulated."
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Mar 19, 2015 | Consumer Affairs
By Stacey Cohen
Fire is dangerous but so are the chemicals that slow the spread of flames in furniture. And a California state senator thinks parents should have a choice about which risks their children ae exposed to.
Sen. Mark Leno (D-San Francisco) is pushing a bill that would require juvenile products to be clearly labeled with whether or not they contain flame retardant chemicals.
Although they may increase safety in the event of a fire, these chemicals have been linked to health hazards like cancer, infertility, hormone disruption, and hyperactivity. The look and the feel of the products is soft and safe, but flame retardants can create carbon monoxide when burned. This is not only a threat to families, but also can also be hazardous to firefighters, Leno said.
Leno is looking to cover as many child-oriented items as possible in his new legislation, Senate Bill 763. This includes bassinets, high chair pads, nap mats, strollers, kid’s upholstered furniture, infant seats, baby carriers worn by parents, and many more. The new bill also would apply to common household items that children come into contact with on a daily basis.
This is not Leno’s first attempt at getting flame retardants in check. He has been a longtime advocate of updating California’s flammability standards, which led to prevalent use of fire retardants in the first place.
Leno’s main goal is to let consumers have options when making important purchases, he said.
“It’s important to label them because these are products with which our youngest and most vulnerable have their most intimate daily contact. They’re possibly sucking on them, they’ve got their head buried in them, they’re embraced by them, and these chemicals are most dangerous to them,” Leno said.
If passed, Leno’s bill could have some serious consequences for those that don’t label their goods appropriately. There would be fines and penalties if a company doesn’t adhere to the guidelines. A first offense could carry a $1,000 fine, which could be increased to $10,000 for a fourth or subsequent violation.
Not everyone agrees with Leno. The American Chemistry Council says the retardants are a vital tool and already subject to review by the U.S. Environmental Protection Agency, among others.
We should “not lose sight of the fact that flame retardants provide an important layer of fire protection and help save lives,” said council spokesman Brian Goodman. His alternative to Leno’s proposition would have legislators work with California policymakers to “build on the progressive fire safety measures that have been responsible for the reduction in fires and fire deaths in California over the last several decades”.
Leno's bill has been co-sponsored by the California Professional Firefighters, the Center for Environmental Health, and the Consumer Federation of California.
Leno says his objective is to give consumers the option to make informed choices on what they want to expose their families to. He thinks that providing this option will also help create an industry standard which will have an effect on the world market. People will be able to make clear choices on what they prefer.
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(ACC Mentioned) Ban Averted On Key Spandex Fibres Substance
Mar 19, 2015 | Just-Style
By Leonie Barrie
The United Nations (UN) has unanimously rejected a proposal to ban a key building block in the production of spandex fibres – in a decision that eliminates the immediate risk of worldwide bans or restrictions on the substance.
The ruling was in response to a recommendation from the World Health Organization to list 1,4-butanediol (BDO) as a Schedule I substance under the 1971 Convention on Psychotropic Substances.
BDO is a substance used in the manufacturing of many consumer products, including spandex fibres for underwear, outerwear, sportswear and swimsuits.
The American Chemistry Council said the 53 members of the UN Commission on Narcotic Drugs “unanimously agreed to not even bring the matter to a formal vote.”
It added: “As the delegates noted, such a classification would have severe economic consequences, disrupt many crucial industries, and affect country development agendas across the global economy.”
The American Apparel & Footwear Association (AAFA), which had lobbied against the ban, said: “The UNCND decision eliminates the immediate risk of worldwide bans or restrictions on the substance.”
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Despite Veto Threats, House Of Representatives Passes EPA Science Bills
Mar 19, 2015 | Chemical & Engineering News
By Steven K. Gibb
The House of Representatives has passed two controversial bills targeting how the Environmental Protection Agency uses scientific data and receives scientific advice in order to regulate. But even if the measures survive Senate votes, they would surely face White House vetoes.
One bill, H.R. 1030, would bar EPA from using any scientific studies, including clinical health research, as it crafts regulations unless it releases all underlying data and research for public review. Critics say this would hobble the agency from setting health-protective regulations, such as Clean Air Act standards, because key data are protected by patient confidentiality rules. The House passed the legislation on a vote of 241-175 on March 18.
The other measure, H.R. 1029, would mandate that EPA retain more industry panelists for its external Science Advisory Board (SAB). It also would require that 10% of SAB members be representatives from state, local, or tribal governments. The Republican-controlled House passed the bill on March 17 on a mostly party line vote of 236-181.
The U.S. Chamber of Commerce and other industry groups support both bills. Democrats, environmental groups, and 42 universities and scientific organizations—including the American Chemical Society, the publisher of C&EN—say the bills would pose burdensome new requirements on the agency and research scientists.
The White House says the SAB measure “would weaken the scientific independence and integrity” of EPA and its SAB by imposing quotas based on affiliation rather than scientific expertise.
Former SAB director Terry F. Yosie, now with the World Environment Center, an international sustainable development organization, says that “singling out the SAB in this fashion is a waste of taxpayers’ money and negates the very objectives it purports to serve.”
The U.S. Chamber of Commerce says H.R. 1029 “would establish requirements that SAB members are qualified experts” and “that the views of members—including dissenting members—are available to the public.”
Sen. John Barrasso (R-Wyo.) has introduced a measure, S. 544, that is similar to the House-passed bill on EPA use of publicly available science. But Democrats say the agency has no resources to cover the $250 million a year the Congressional Budget Office estimates it will take to implement this legislation.
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Preemption 'Critical' TSCA Issue for White House, Says EPA
Mar 19, 2015 | Chemical Watch
The issue of state preemption, and whether it strikes the right balance between federal and state government authority, will be critical to how the Obama administration reviews any Toxic Substances Control Act (TSCA) reform bill, the head of the EPA's chemicals office told Congress on Wednesday.
Jim Jones, assistant administrator of the EPA's office of chemical safety and pollution prevention, was testifying at a hearing held by the Senate Environment and Public Works Committee on the Frank R Lautenberg Chemical Safety for the 21st Century Act (Lautenberg bill) (CW 10 March 2015), which proposes TCSA reforms.
The bill, introduced by Senators David Vitter (Republican-Louisiana) and Tom Udall (Democrat-New Mexico), has 18 co-sponsors, half of them Democrats.
The EPA has not taken a formal position on it, Mr Jones said. But he is confident that “preemption will be a critical element of how the administration ultimately looks at the totality of the bill and whether or not it strikes the right balance.”
The EPA, said Mr Jones, had “consciously” left out preemption in the six principles it had enunciated in 2009 for updating TSCA (CW 30 September 2009), “even though we understood how critical it was to a bill”.
He agreed with Mr Vitter that the Lautenberg bill is largely consistent with the principles, but the administration will “look at the bill in its totality and there will be elements that are not related ... that will be brought to be bear on the evaluation.”
Some Democratic senators suggested the bill would allow industry to pay the EPA to take up a chemical for review as a high priority substance, to keep states from acting on it.
But Mr Jones agreed with Mr Vitter that the bill's preemption rules are different for chemicals evaluated through that route. Under the bill, said Mr Vitter, the EPA has “complete discretion over accepting or denying [industry] requests or money to take up certain chemicals”.
The biggest change that the Lautenberg bill makes to existing law is that it requires the EPA to evaluate existing chemicals and creates a schedule for doing that, Mr Jones said.
It also eliminates the hurdle “we experienced” with having to find the least burdensome way to regulate a chemical, he said.
Ranking committee member, Barbara Boxer (Democrat-California), who introduced a counter TSCA reform bill a few days after that of the Lautenberg bill (CW 13 March 2015), said that in its present form, the latter “fails to provide the public health protections needed and is worse than current law”.
It would take seven years, she said, for the EPA to produce a verdict on a chemical after it takes it up for evaluation, and all that time states would be barred from acting. “I have never seen such an unprecedented level of opposition to any bill,” she said, pointing out more than 450 organisations have opposed the measure.
However, Mr Vitter said the Lautenberg bill is the only one that has, and is likely to continue to have, bipartisan support in the Senate.
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US Business Group Prefers Boxer TSCA Reform Bill
Mar 19, 2015 | Chemical Watch
By Leigh Stringer
A group of US businesses is supporting a bill, proposed by two Democratic senators as a more radical alternative for reforming the 40-year-old Toxic Substances Control Act (TSCA) than the bipartisan bill endorsed by chemical industry trade bodies.
The Companies for Safer Chemicals coalition, coordinated by the American Sustainable Business Council (ASBC), a network of business associations promoting a sustainable economy, says that the bill introduced by Senators Barbara Boxer (California) and Ed Markey (Massachusetts) goes much further in assessing and taking action on chemicals of concern (CW 13 March 2015).
Lacking Republican support, the Boxer bill has no chance of progressing, but may influence the debate.
The coalition welcomes the bill’s clause, which allows states to maintain rights to protect people from harmful chemicals by enabling them to enforce restrictions on chemicals.
Under the bipartisan bill, introduced by Tom Udall (D-New Mexico) and David Vitter (R-Louisiana), state regulations on chemicals will stand only if they were enacted before 1 January 2015 and states would not be allowed to restrict a chemical if the federal EPA took up the same substance for assessment, after designating it as a priority chemical (CW 10 March 2015).
Led by ASBC and Seventh Generation, the coalition says it “aims to ensure Congress modernises the nation’s out-of-date chemical laws, and to counter the narrative that businesses desire a weak reform bill.” Founding members include Patagonia, Stonyfield Farm, Method, Naturepedic and Annie’s.
ASBC policy director, Bryan McGannon, said once a chemical is selected, the EPA’s review period could take five to seven years, depending on legal and regulatory delays. “In that time,” he said, “nobody has any jurisdiction over that chemical. This is not a reasonable position to take.”
The ASBC also agrees with the Boxer bill’s assessment schedule, which the coalition says is more active than that of the Vitter-Udall bill.
Under the latter, says Mr McGannon, which aims to assess 25 high priority chemicals over a seven-year period, “you can only add a new chemical to the list, once one of the 25 designated substances has been through the entire review process – so it’s one off, one on.”
In contrast, the Boxer bill calls for 75 chemicals to be listed for the same period, with 15 reviewed annually. It also allows for an additional six substances to be included, after one has been through the review process. “This constantly replenishes the pipeline of chemicals for review,” says Mr McGannon.
Businesses would benefit from the improved consumer confidence that would come with a robust chemical regulatory system that gets the worst chemicals out of commerce and drives innovation for safer alternatives, he added.
Vitter-Udall is also insufficient for driving innovation on safer alternatives, says the ASBC, because of the “slow review schedule” and the cap on the EPA’s fee structure. “We would like a more aggressive schedule and an effective resource mechanism that will drive innovation towards safer alternatives and get those into the market as fast as possible,” said Mr McGannon.
John Replogle, president and CEO of Seventh Generation, an ASBC member, said federal legislation should not “tie the hands of states which have shown leadership in protecting their citizens, restricting the worst chemicals and, ultimately, driving the marketplace towards safer alternatives.”
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Key Dems Remain Wary While Bipartisan TSCA Bill Supporters Urge Change To 'Status Quo'
Mar 19, 2015 | E&E Daily News
By Sam Pearson
Suspicion of chemical industry influence and concern over U.S. EPA's history of slow regulation of chemicals have made a bipartisan proposal to reform the 1974 Toxic Substances Control Act a tough pill to swallow for several key Democrats, though the bill's supporters contend the only way to change the status quo is through their compromise proposal.
The bill from Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) now has 10 Democrats and 10 Republicans as co-sponsors, having gained Sens. Mark Warner (D-Va.), Gary Peters (D-Mich.) and Mike Rounds (R-Neb.) this week, Udall's office confirmed.
Even a plea from Bonnie Englebardt Lautenberg -- the widow of former Sen. Frank Lautenberg (D-N.J.), a TSCA reform advocate -- at yesterday's meeting of the Senate Environment and Public Works Committee, on which the senator served for five terms, may not have had the impact bill supporters hoped for. Introduced with warmth by senators from both parties who recalled their long relationships with the iconic New Jersey lawmaker, the Lautenbergs watched as most of his Democratic colleagues spent hours poking holes in the compromise proposal.
But Englebardt Lautenberg called on senators to "please work out your differences and get it done for your families, and for every family in the country" and pass S. 697, the "Frank R. Lautenberg Chemical Safety for the 21st Century Act."
Vitter echoed that argument and encouraged lawmakers to sign onto the proposal, calling it the only realistic way to make progress.
"The alternative to this bill, or something like this bill, is the status quo," Vitter said. "That is the only meaningful alternative in sight anytime soon, and we clearly need to do better. Udall-Vitter does much, much, much, much better."
Though most environmental groups agree that the bill has become less problematic than the original Lautenberg-Vitter bill introduced in 2013, disagreement remains over the timing of pre-emption, the pace of chemical reviews and, among some Democrats, whether its effect on state laws would do more harm than good. Some lawmakers were also concerned about provisions to ban states from co-enforcing federal law and about the chemical industry's influence in the legislative process.
"I want a good bill; I don't want a perfect bill," Sen. Barbara Boxer (D-Calif.) said. "And we don't have it here."
Boxer, who has introduced her own proposal, S. 725, or the "Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act," also warned that the Udall-Vitter plan could pre-empt state laws that regulate air and water discharges for specific chemicals if the restrictions conflict with EPA assessments and said a provision allowing the chemical industry to fast-track assessments if they agree to fund them is improper.
Supporters of S. 697, though, countered that the industry-initiated assessments would be limited to no more than 15 percent of total assessments and that beginning one of these would not trigger pre-emption of state laws. EPA also would be allowed to deny the requests. Supporters also disputed Boxer's analysis that the Udall-Vitter bill would affect laws outside the purview of TSCA. Obama admin expresses concerns
Meanwhile, the Obama administration has not taken a position on the proposal, said Jim Jones, U.S. EPA's assistant administrator for chemical safety and pollution prevention, who also testified yesterday.
Jones hinted that EPA, at least under its current leadership, may attempt to perform more chemical assessments than the minimums called for by the bill that have been criticized as too low, but he also said EPA could only do so much. Citing his time leading the agency's Office of Pesticide Programs, Jones said even that program, which receives more funding than EPA's programs to evaluate toxic chemicals, could not complete more than about 40 assessments per year. Even at that pace, it would take 25 years to review about 1,000 chemicals EPA believes pose potential health hazards -- and Jones warned that those are just the ones the agency knows about.
Jones said the administration has not developed a position on the Udall-Vitter bill. Jones said the proposal mostly aligns with EPA's principles for TSCA reform, which it first released in 2009. But he added that the agency did not mention the issue of pre-emption in that proposal because it wasn't on its policy radar at the time.
"I'm confident that pre-emption will be a critical element of how the administration ultimately looks at the totality of the bill, and whether or not it strikes the right balance," Jones said.
If EPA only assessed 25 chemicals over seven years, there would be "a good argument" that it doesn't meet EPA's desire that reviews be timely, Jones said. But he added he didn't think EPA could work on more than 40 per year, even if it were not limited by budget constraints.
Under the Udall-Vitter bill, the agency would be required to designate 25 high-priority chemicals within five years, and take up to seven years studying each chemical -- meaning it could take as long as 12 years to propose restrictions on the first set of chemicals. EPA also could try to move faster than that, Jones said.
Analysts have said it could be risky to force the agency to move faster because that would encourage it only to pick the simplest chemicals for study or could lead to shoddy, rushed scientific work.
Meanwhile, opponents want to see the pre-emption rules changed so that new state regulations are not impeded until EPA has finalized regulations for a chemical, instead of when it settles on the scope of a chemical assessment that still might be years away from completion.
Sen. Sheldon Whitehouse (D-R.I.) called this gap "a death zone," although Lynn Goldman, dean of the Milken Institute School of Public Health at George Washington University and a former EPA assistant administrator, said she thought it was reasonable to ask states not to put new rules in place when EPA was getting ready to do so.
Jones also seemed perplexed by the bill's provision that bars states from enforcing regulations identical to federal law, known as co-enforcement. The provision has been strongly opposed by many state attorneys general, who want to play a role in enforcing chemical regulations in their states. Vitter said the restriction would be appropriate and compared it to the Food and Drug Administration's pre-emption of state and local regulations of prescription drugs, but Jones said the agency could use the help.
With EPA's funding declining and a fear among state regulators that it will fail to meet prescribed deadlines, federal law needs to encourage state action, Maryland Attorney General Brian Frosh (D) said.
With this proposal, "It's not 'We've got your back,'" Frosh said. "It's 'We're going to think about it -- you sit back.'"
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Our Broken Congress’s Latest Effort To Fix Our Broken Toxic Chemicals Law
Mar 19, 2015 | The Washington Post
By Puneet Kollipara
Chemicals are everywhere — we’re made of them, and so are the products we use and the objects we come into contact with. Naturally, some of these substances could be bad for our health, perhaps capable of causing cancer and other diseases.
Regulators have presumably barred unsafe chemicals from being made and used, right? Not so. In fact, only a tiny percentage of chemicals are regulated.
How could this be? A major reason is that the Toxic Substances Control Act (TSCA), a 1976 law that protects humans and the environment from toxic industrial chemicals (pesticides, drugs and cosmetics are handled under different laws), has created so many hoops for regulators to jump through that it has often rendered them powerless. That’s one rationale that the Government Accountability Office, Congress’s nonpartisan watchdog arm, has cited in repeatedly calling toxic chemicals regulation one of the government’s “high-risk” programs.
Now, a bipartisan bill from Sens. David Vitter (R-La.) and Tom Udall (D-N.M.), introduced last week, would overhaul TSCA’s core provisions for the first time since its birth nearly 40 years ago.
Here’s the problem: Congress has tried repeatedly to fix this issue and failed. It’s tough to get all stakeholders involved — including chemical companies and environmental and health groups — to find a middle ground. And in today’s gridlock-marred age of toxic politics, not even a bipartisan toxics law reform bill such as Udall-Vitter is guaranteed to survive. Taking TSCA to task
So, what’s wrong with the current law? For starters, TSCA allowed all 62,000 chemicals that were in commerce before 1976, the year it became law, to stay on the market unless the Environmental Protection Agency later found that they posed an “unreasonable risk.” How many of these has the EPA studied since then? Just a couple of hundred. How many has it banned? Only five, among them dioxins and hexavalent chromium.
Any chemicals after 1976, meanwhile, could enter the market unless the EPA could establish this “unreasonable risk.” The problem: The agency has only 90 days to make that decision, and rarely does it have all the toxicity data it needs. As a result, nearly all substances the industry wants to make and sell are allowed to go on the market.
And to make matters worse, environmentalists have argued that this “unreasonable risk” standard, as defined now, has proved too tough a bar for EPA to meet. Why? Because EPA has to consider the costs of regulation in deciding what makes the risk “unreasonable.” In 1991, a judge struck down the agency’s ban on asbestos — fibrous minerals that are known to cause the deadly lung cancer mesothelioma — in part because the agency hadn’t fully considered the costs of banning it. Since that ruling, the EPA hasn’t successfully used its TSCA ban powers.
Other aspects of TSCA simply make the EPA’s life even tougher. For instance, it can’t require companies to test substances unless the agency shows that there might be a risk to begin with. If it sounds like a chicken-and-egg problem, that’s because it is.
It’s little wonder, then, that our toxics law is so ineffective. So why haven’t we fixed it? The answer lies in how we would do so. For so many of the law’s problems, consensus has been hard to come by. Key among these issues is something known as the safety standard: the minimum bar for safety a substance must meet. Can we find some chemistry here?
Some, particularly in the environmental/health community, want our chemical laws to look more like the European Union’s. There, substances generally can’t go on the market unless manufacturers can provide data showing they’re safe. The E.U. places much more trust in the precautionary principle, the idea that in the absence of evidence, it’s better not to take any chances.
But don’t expect the United States to go with an E.U.-like safety standard. Past efforts by the late Sen. Frank Lautenberg (D-N.J.) to enact legislation with that kind of standard failed, in large part because of industry opposition. These concerns might not be totally unjustified — reasonable people can disagree about how precautionary we should be before we become too precautionary.
But a bill that doesn’t go far enough won’t get enough support from public-interest groups and Democrats. One bipartisan measure from Lautenberg and Vitter last Congress used the far weaker “unreasonable risk” standard that TSCA currently has, with a few tweaks. Environmental and health groups opposed it for that and other reasons. That bill also died. A reasonable middle ground?
Now, the Vitter-Udall bill, seeking to strike a middle ground, uses a standard that would require chemical makers to prove that there’s no “unreasonable risk” that a product is harmful, but changes specific aspects of the standard to the make EPA’s life easier. Under the bill, new substances generally would need to meet this standard for them to enter commerce — and couldn’t go on the market by default after 90 days. And no longer would the EPA have to consider costs in deciding whether a substance’s risk is unreasonable — the very issue that doomed the asbestos ban.
The EPA also would face deadlines for assessing and regulating chemicals already on the market, starting first with 25 substances the agency thinks pose the highest threat. And unlike today, EPA could require companies to do additional testing of a chemical without first having to show that it might be risky. At least on the surface, all this seems to add up to a tougher system than what we have now.
But once again, a familiar problem has emerged: To some, this middle-ground solution may not be so good. Nearly all environmental and health groups — the lone exception being the Environmental Defense Fund — and liberal Democrats such as Sen. Barbara Boxer (Calif.) are opposing Vitter-Udall, saying it could be worse than current law. They worry that it wouldn’t require EPA to act quickly enough or review enough chemicals, all while blocking states from enacting future restrictions on substances the EPA designates as “high priority.” To them, that’s a recipe for disaster.
A lot is at stake here. For one, a number of substances may cause cancer, a reason the President’s Cancer Panel in 2010 called for reforming TSCA. Other potential health problems are at stake, too, including birth defects and neurological and developmental problems. And the current laws haven’t given people much confidence in the industry. If there’s something that chemical makers and environmental/health groups agree on, it’s that TSCA needs fixing.
But as TSCA reform’s futile history has shown us, sometimes even the problems we agree on the most can’t be fixed so easily — because it’s much tougher to agree on the solutions.
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Industry Donations Pour in to Reform Bill Sponsors -- Report
Mar 19, 2015 | E&E - Greenwire
Chemical industry campaign contributions have flowed to lawmakers co-sponsoring a new chemical safety bill that is favored by the companies.
MapLight, a nonpartisan group that studies campaign contributions and lobbying, noted in the report that the 17 sponsors of S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," received almost 70 percent more campaign donations from the chemicals industry than senators who declined to sponsor the bill.
Contributions included $14,000 to Sen. David Vitter (R-La.) last year and another $150,000 to a super political action committee supporting his campaign for governor. Sen. Bill Cassidy (R-La.), another co-sponsor, took in $71,500 in chemical industry contributions in his contentious race against former Sen. Mary Landrieu (D-La.) last year. Sen. Tom Udall (D-N.M.) received $15,000 in industry contributions for his re-election race last year, the report said (Bruce Alpert, New Orleans Times-Picayune, March 18).
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US EPA Receives 83 Pre-Manufacturing Notices
Mar 19, 2015 | Chemical Watch
The US EPA received 83 pre-manufacturing notices (PMNs) for new chemicals between 2 and 30 January. Several have their manufacturer, or importer, protected as confidential business information.
During the same period, the agency received nine notices of commencement to manufacture new chemicals and four applications for test marketing exemptions.
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US Extends Consultation on Phthalates in Toys Ban
Mar 19, 2015 | Chemical Watch
The US Consumer Product Safety Commission has extended to 15 April the comment period on its proposed rulemaking to prohibit certain phthalates in children's toys and childcare articles (CW 12 January 2015). The original comment deadline was 16 March.
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US Office Publishes Methods Protocol On Cobalt And Cancer
Mar 19, 2015 | Chemical Watch
The US Office of the Report on Carcinogens (ORoC) has released a protocol describing the methods being used to prepare the cancer evaluation component of its draft monograph on cobalt and certain cobalt compounds.
The Report on Carcinogens is a congressionally mandated, science-based, public health document prepared each year by the National Toxicology Program for the Department of Health and Human Services.
The substance group cobalt and certain cobalt comounds are candidate substances for inclusion in the RoC. For each substance included in the report, its listing comprises a substance profile that contains the listing recommendation and a summary of the scientific evidence considered key to reaching that recommendation. In addition, the profile contains information on potential sources of exposure to humans and current federal regulations to limit exposures.
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US Public Health Body Issues Latest Biomonitoring Report
Mar 19, 2015 | Chemical Watch
The US Centers for Disease Control and Prevention has updated its 2009 fourth national report on human exposure to environmental chemicals.
The report is a series of ongoing biomonitoring assessments of the US population, which measure chemicals in people's blood and urine.
The update presents data for 265 chemicals, of which 65 are new, and 139 have new data since the last revision in August 2014. It also includes new data for some metals, phthalates and volatile organic compounds (VOCs)
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Groups Ask White House to Speed Up EPA's Review of Facility Regulations
Mar 19, 2015 | E&E - Greenwire
By Sam Pearson
Chemical safety groups are urging President Obama to push U.S. EPA to speed up a series of regulations on chemical facilities, calling them vulnerable to industry challenges if they are not accelerated.
U.S. EPA has signaled that it plans to publish a notice of proposed rulemaking in September, according to a notice published by the Office of Information and Regulatory Affairs. However, this could leave the rule vulnerable to being overturned by a future administration, according to a letter from the Coalition to Prevent Chemical Disasters that was signed by dozens of other groups.
The letter, which was sent to the White House today, said that EPA's slow pace would put the conclusion of the process dangerously close to the end of Obama's term. That could put the rule on track to be finalized in September 2016 and become effective in November 2016, placing it at risk of being overturned by a Congressional Review Act challenge or by a new president issuing a moratorium on new regulations upon taking office, said Greenpeace Legislative Director Rick Hind, a signatory to the letter.
"We believe that this schedule will jeopardize finalizing a rule before you leave office and therefore needs to be accelerated," the groups wrote.
The OIRA notice says that EPA will consider changing what substances are regulated and at what quantities, adding new accident prevention or emergency response requirements or modifying existing standards used in the risk management program.
The program was authorized under the Clean Air Act, but EPA is working to update the program after conducting a public comment period and collaborating with other safety agencies under an executive order Obama issued in the wake of a fertilizer plant explosion in West, Texas, nearly two years ago.
In their letter, the safety groups noted past comments by Obama while serving in the U.S. Senate and in his 2008 book, "Change We Can Believe In," in which he wrote that his administration would secure chemical plants "by setting a clear set of federal regulations that all plants must follow, including improving barriers, containment, mitigation and safety training, and wherever possible, using safer technology, such as less toxic chemicals." Program scrutinized by industry
Industry groups have pushed the agency to keep the program largely the same but rely on industry outreach and the targeting of "outlier facilities" for safety improvements (Greenwire, Oct. 30, 2014).
The industry has strongly opposed federal requirements to use specific safety measures or requirements to change chemical processes, and industry groups have said they are closely monitoring the regulations.
"I fully expect that at some point, EPA will propose that companies consider safer alternatives under the risk management program," Bill Allmond, vice president of government affairs at the Society of Chemical Manufacturers and Affiliates, said in an interview earlier this month -- though the industry group contends that companies already consider these practices.
"Consideration is one thing; mandatory is another," SOCMA President Larry Sloan said. "Our members are innovative by nature, and they're always going to look at considerations for safety. That's part of engineering practice."
SOCMA has said previously in its public comments to EPA that the agency "has not convincingly demonstrated that anything is wrong with the current [risk management plan] regulations" and warned that some of the proposed changes "will likely be very costly and drive business offshore."
A spokesman for EPA didn't respond to a request for comment.
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Stung By Oil's Fall, Bidders Barely Show Up For Latest Federal Lease Sale
Mar 19, 2015 | E&E - Energywire
By Nathanial Gronewold
A huge offshore drilling lease sale held in New Orleans yesterday drew far less interest than hoped as crude oil prices seem to have severely dampened the industry's enthusiasm for participation.
The Bureau of Ocean Energy Management reported weak interest for one of its largest lease auctions to date, Sale 235, covering the Central Planning Area of the Gulf of Mexico. Just a small fraction of the blocks up on offer received bids, covering a much smaller geographic area than might have otherwise been the case with higher oil prices.
Of the 7,788 blocks BOEM offered in the sale, companies put bids on only 169 of them, or just about 2 percent of the total number initially offered. The sale offered over 41 million acres of offshore energy exploration blocks, but the bids received covered only about 923,000 acres.
Total high bids were valued at about $539 million. BOEM officials acknowledged in a statement that the swift plunge in crude oil prices likely led to the industry leaving the vast majority of tracts untouched as it focuses spending elsewhere.
"The recent drop in oil prices and continued low natural gas prices obviously affect industry's short-term investment decisions, but the Gulf's long-term value to the nation remains high," new BOEM Director Abigail Ross Harper said.
BOEM's statistics show that most bidding interest focused on the deepwater Gulf, in waters at or exceeding 5,000 feet in depth. Bids were received for 64 blocks in that depth range, with total high bids for deepwater coming in at over $318 million. An additional $158 million worth of high bids were directed at blocks with depths ranging from 2,600 to 5,000 feet.
Oil and gas companies also expressed some interest in shallow-water blocks in this latest sale. Forty-five shallow blocks received bids, the second-highest number, though the total value of high bids for shallow-water acreage was estimated to be only about $10 million.
Sale 235 also offered acreages at the U.S.-Mexico maritime boundary in the Gulf, marking the second time BOEM offered for sale leases in waters covered by the Transboundary Hydrocarbon Agreement both nations finalized a few years ago.
BOEM in April will hold its round of bidding for about 4,000 prospective offshore tracts for western Gulf of Mexico waters off the Texas coastline.
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Growing U.S. Oil Export Debate Has Now Spread to Geopolitics
Mar 19, 2015 | Reuters
By Valerie Volcovici
Lifting the longstanding ban on U.S. crude oil exports would boost the country's economy and enhance its global leadership, a former senior Obama administration official will tell senators on Thursday, introducing a strategic dimension to the growing debate over selling American oil abroad.
In testimony submitted ahead of a Senate energy committee hearing on U.S. crude export policy, the Pentagon's former undersecretary of defense for policy, Michele Flournoy, argues "policymakers in the United States should embrace these various benefits to our allies and ourselves and liberalize our crude export rules.
"Market conditions merit such a step and security dividends will not be fully realized without it," said Flournoy, co-founder of the Center for a New American Security.
A host of economic and geopolitical factors, from plummeting oil prices, near-capacity storage facilities and sanctions against Iran and Russia, are forcing both sides of the debate to address strategic questions.
"Members of Congress are starting to focus on this issue in a big way," said George Baker, executive director of Producers for American Crude Exports - a group representing independent companies demanding an end to the export ban.
He said the possibility of using oil exports to address policy on Iran or Russia is now invoked in his discussions on Capitol Hill or with the Obama administration.
"The notion of selling oil into the international market comes up frequently," Baker said.
On the other hand, oil refiners keen to prevent producers from sending crude overseas counter that market realities limit the strategic benefits of exports.
"The case that the U.S. can enhance its geopolitical stance is incredibly overstated," said Jay Hauck, executive director of Consumers and Refiners United for Domestic Energy, a lobby group for east coast and Texas refiners.
CRUDE argues that, instead of bolstering America's global standing, they expect most U.S. crude oil to be exported to China, rather than European allies.
"I think we have consumers on our side and a lot of business sectors who have benefited from lower oil prices," he said. "We keep reminding Congress of that."
Most observers see the push for changes to the decades-old ban as a long game, with Congress continuing to debate the issue in hearings and lawmakers floating bills to test the appetite for change.
The ban on unprocessed crude was introduced following the 1973 oil shock, although U.S. laws currently allow exports of refined products such as gasoline and diesel.
Some argue that strategic factors should not override other concerns.
The American Fuel & Petrochemical Manufacturers, a trade group that supports lifting the ban, said "a decision should not be made in a vacuum," but as part broader reform of energy and shipping policies.
Some major oil companies want Congress or the administration to act on exports immediately.
"We've got to gain some traction this year. Certainly as we go into an election year, it becomes harder," said Ryan Lance, chief executive of ConocoPhillips, in Washington last week.
Lance will testify at Thursday's hearing.
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The Constitutional Foundation for the Clean Power Plan
Mar 19, 2015 | The Hill - Congress Blog
By Michael B. Gerrard
As members of Congress wisely examine the legal basis for the Clean Power Plan, they should feel confident that the Environmental Protection Agency is acting with a solid constitutional foundation.
At a Tuesday hearing of the Subcommittee on Energy and Power of the House Committee on Energy and Commerce, two eminent legal scholars engaged in an intellectual duel over the plan– EPA’s proposed regulations on fossil fuel-fired power plants. Laurence H. Tribe, a professor at Harvard Law School, argued that the EPA proposal is unconstitutional and contrary to the Clean Air Act. Richard Revesz, a professor and Dean Emeritus of New York University Law School, took the opposite position, asserting EPA is acting constitutionally and well within its authority under the Clean Air Act. Putting aside Professor Tribe’s well-reported retention by Peabody Energy, let’s examine these arguments on legal merits alone.
First, in predicting the likely outcome of the inevitable litigation over the rules, it’s important to emphasize that the Supreme Court has upheld EPA’s powers under the Clean Air Act to regulate greenhouse gases three times.
In 2007 the Court declared that greenhouse gases are air pollutants and are subject to EPA’s powers under the statute. In 2011, the Court rejected an attempt to get the federal courts to order a reduction in the emissions from fossil fuel plants, finding that such restrictions are exclusively EPA’s job. The Court relied on exactly the same provision of the Clean Air Act (Section 111(d)) that EPA is now using.
And in 2014 the more than 100 lawsuits challenging EPA’s prior round of greenhouse gas regulations culminated in a Supreme Court decision that left them all standing, except for one provision that applied to only three percent of stationary source emissions.
In all of these cases, the Supreme Court (like all other courts to consider the issue) cast aside vigorous objections to the scientific findings that human activities are contributing to climate change, and reaffirmed EPA’s authority.
Tribe did not contest the science, instead arguing EPA is usurping the power of the states, requiring them to adopt onerous rules that would disrupt their energy systems. But EPA’s proposal would afford maximum flexibility to the states in meeting their share of emissions reductions. These goals can be met with energy efficiency, clean fuels, renewable energy sources, nuclear power, or other methods chosen by the states, and in whatever proportions and whatever schedules they want, provided it adds up to enough to meet the standards.
Several states (including some that rely mostly on coal) have already indicated that they can readily meet these standards under their existing plans; for some other states it will be more challenging, but doable. Only if a state fails to send EPA a satisfactory plan – or any plan at all – will EPA step in with its own plan. The flexibility given the states should shield the plan from a successful attack under the Tenth Amendment.
The other major objection raised by Tribe stems from a clerical mistake made by staff when Congress amended the Clean Air Act in 1990. The final bills passed by the Senate and the House were slightly different (which isn’t supposed to happen). Under one version, the Clean Power Plan is valid; under the other it falls. Which should prevail is the subject of a lot of fine legal argumentation (as seen in the opposing views from the two law professors), but ultimately it will be for the Supreme Court to decide.
Both agree that new legislation would be the best way to address the climate problem. However, Congress has not passed a major environmental law since 1990, and given the current partisan divisions, there is no telling when it will. Thus, as the bulk of scientific opinion acknowledges that climate change is a major threat, it is incumbent on those who wish to shut down EPA’s efforts, either in Congress or the courts, to suggest an alternative that works under existing statutes.
The constitutional soundness of the Clean Power Plan is clear. Those who oppose it should come up with something better.
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Obama to Order Emissions Cuts in Federal Agencies
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama will sign an executive order Thursday ordering federal government agencies to slash their greenhouse gas emissions.
A White House official said the order is a way for the government to “lead by example” by curbing emissions of carbon dioxide and other gases believed to cause global warming.
Several major companies that supply goods to the federal government will announce their own voluntary effects to cut greenhouse gases, the White House said.
Since the federal government is the largest single consumer of energy in the country, its actions can make a major dent in the greenhouse gas emissions of the country as a whole.
That means cuts in the government can send the country a long way toward Obama’s goal of reducing the United States’ greenhouse gases 26 to 28 percent below 2005 levels by 2030.
The executive order will be the second major effort the Obama administration has taken to reduce emissions in federal agencies.
In 2010, Obama set a goal of reducing federal greenhouse gases 28 percent below 2008 levels by 2020.
As of fiscal year 2013, the most recent year for which data are available, the government was more than halfway there. It had dropped emissions 17.2 percent from 2008 levels, according to the Council on Environmental Quality.
Obama will also travel to the Energy Department’s headquarters Thursday as part of the announcement, the White House said.
He will tour the building’s rooftop solar panels and talk with representatives of major federal suppliers that have agreed to cut emissions.
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Obama to Seek 40 Percent Cut in Federal Greenhouse Gases
Mar 19, 2015 | The Hill - E2 Wire
By Timothy Cama
President Obama signed an executive order Thursday to cut the federal government’s greenhouse gas emissions 40 percent over the next decade.
The effort will save taxpayers as much as $18 billion due to energy savings, the White House said.
“Today, America is going to be once again leading by example,” Obama said in brief remarks Thursday during a Department of Energy roundtable event with leaders from the federal contractors and suppliers.
“These are ambitious goals, but we know that they’re achievable goals,” he continued.
Obama will also push federal agencies to get 30 percent of their power from renewable sources like wind and solar energy. Several major federal contractors and suppliers are announcing emissions reduction goals of their own.
“Since the federal government is the single largest consumer of energy in the nation, federal emissions reductions and progress across the supply chain will have broad impacts,” the White House said in a fact sheet.
Brian Deese, a top adviser to Obama, said the executive order shows that the administration is “on offense” on climate even as congressional Republicans attack some of the president’s landmark environmental efforts.
Months ahead of a planned United Nations agreement to cut emissions globally, the federal efforts should show world leaders and other nations that the United States is serious about cutting emissions, Deese said.
“Certainly our hope is that we are laying forth a template that other countries could also learn from and look at as well,” he told reporters.
Taken together, the actions will be the equivalent of taking 5.5 million average cars off the road for a year, saving 26 million metric tons of greenhouse gas emissions in carbon dioxide-equivalent terms, according to the administration. The reduction goal is based on a 2008 starting point.
As the top energy consumer in the nation, the federal government’s actions can make a huge dent. They can also represent a major part of Obama’s goal of reducing the United States’s total greenhouse gas emissions 26 percent to 28 percent by 2030, compared with 2005 levels.
“With a footprint that includes 360,000 buildings, 650,000 fleet vehicles and $445 billion spent annually on goods and services, the federal government’s actions to reduce pollution, support renewable energy and operate more efficiently can make a significant impact on national emissions,” the White House said.
Some of the specific measures in the executive order will include goals over the next decade of getting 25 percent of the government’s electric and thermal energy from clean sources, reducing federal buildings’ energy use 2.5 percent over the next decade and slashing federal vehicle emissions by 30 percent.
Thursday’s announcement moves the goalposts from a 2010 order Obama signed on federal agencies’ emissions. That mandated a 28 percent cut from the same 2008 starting point, and the government has already reduced greenhouse gases 17.2 percent since then.
Obama will participate in a roundtable discussion later Thursday at the Energy Department where major federal contractors such as IBM and Northrup Grumman will announce their own emissions goals.
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EPA Draws Tough Panel For Climate Case
Mar 18, 2015 | PoliticoPro
By Erica Martinson
EPA will face a tough panel of judges at the U.S. Court of Appeals for the D.C. Circuit for the trio of cases over the its proposed greenhouse gas rule for power plants.
Judges Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh will hear the State of West Virginia v. EPA and In re: Murray Energy Corp. on April 16. (West Virginia is consolidated with another Murray case, and all three cases are often referred to as Murray Energy.)
Henderson was appointed by President George H.W. Bush. Griffith and Kavanaugh were appointed by President George W. Bush, and are both known to be a tough sell for the EPA.
In 2012, Griffith and Kavanaugh joined in a 2-1 opinion to strike down EPA’s Cross-State Air Pollution Rule, saying, in part, that the agency reached far beyond the authority afforded it in the text of the law. The Supreme Court overturned that decision last year.
The EPA isn’t at a total loss: The same three-judge panel was responsible for a controversial 2013 opinion in Mingo Logan that backed EPA’s authority to overturn a decision that had approved a major mountaintop removal mine project.
The Murray Energy cases could resolve whether EPA has the authority to regulate power plants’ carbon emissions under Section 111(d) of the Clean Air Act. Judges often decline to rule on the merits of proposed regulations, however, so the legal question end up unresolved until after a final rule is issued this summer.
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Ozone Pollution in the West: The Good, the Bad, and the Ugly
Mar 18, 2015 | Environmental Defense Fund
By Jon Goldstein
Long familiar in major urban areas, smog – what we experts call “ground-level ozone” pollution – is quickly becoming a serious problem in the rural mountain west, thanks to rapid expansion in oil and gas development. Smog serious health impacts like aggravated asthma, chronic bronchitis, heart attacks, and even premature death. In areas like the Upper Green River Basin in Wyoming, smog levels have sometimes rivaled those in Los Angeles.
Now, the Environmental Protection Agency and several western states are putting the pieces in place to fix this problem: EPA through proposed revisions to the health-based ozone standard that will better protect people from pollution, and states like Wyoming and Colorado through strong policies that are helping to reduce the sources of ozone pollution in the oil and gas industry.
In official public comments filed this week with EPA, EDF and a broad coalition of western environmental and conservation groups supported a more protective ozone standard and pointed out the importance of this issue to the intermountain west–where most of the country’s oil and gas production from federal lands occurs.
Ozone is a story with important public health consequences that calls to mind the old Western, “The Good, the Bad and the Ugly,” though perhaps in a slightly different order.
The Bad:
Ozone is a harmful air pollutant, and bad news from a health perspective. Countless studies (including those in the mountain west) have shown that elevated levels of ozone pollution can cause painful breathing, lung inflammation, and are associated with increased hospital admissions and emergency room visits. EPA’s independent expert science panel, on the basis of the latest scientific evidence, unanimously recommended a stronger federal ozone limit to protect public health with an adequate margin of safety, as the law requires.
Strong ozone standards are just as necessary today in intermountain west – where many residents are living amidst large-scale oil and gas developments – as in urban settings. That’s why our comments urge EPA to revise the existing federal ozone pollution standard of 75 parts per billion (ppb) to a more protective 60 ppb.
The Ugly:
As drilling has rapidly increased in areas like Wyoming’s Upper Green River Basin, Utah’s Uinta Basin, the San Juan Basin in New Mexico and in suburban areas of Denver, Colorado so too have harmful ozone levels. In all, as many as thirty-three counties currently in attainment across the Intermountain West have experienced ozone levels above the range recommended by EPA’s Clean Air Scientific Advisory Committee. Of these 33 counties, 17 (52%) are home to oil and gas development.6 Specifically:Wyoming: Fremont, Laramie, Teton, Uinta, Campbell, Carbon counties;Colorado: El Paso, La Plata, Montezuma, Mesa, Rio Blanco and Garfield counties;Utah: Weber, Utah, Tooele, Washington, Box Elder, Carbon, San Juan, Salt Lake, Davis, Duchesne, and Cache counties;New Mexico: Dona Ana, Bernalillo, Eddy, San Juan, Valencia, Luna, Lea, Santa Fe, Grant, and Sandoval counties.
To be clear, the latest available science and EPA’s independent scientific advisors along with the nation’s leading public health and medical societies all suggest a stronger standard is needed to protect public health; this is not a problem of EPA’s making. Citizens in these counties already face exposure to potentially unhealthy levels of ozone pollution. The only thing that’s changing is that EPA is acting, consistent with its responsibilities under the nation’s clean air laws, to strengthen those standards so they reflect latest scientific information and can provide people with transparent information about air quality in their communities.
Without additional commonsense air quality measures, growing oil and gas development expected in the mountain west could only compound this problem. In Wyoming, for instance, there are plans for as many as 34,246 new oil and gas wells across the state, some in locations that impact existing ozone nonattainment areas, and some that may cause future compliance concerns.
The Good:
Fortunately, it’s not too late to fix the problem. Several states have already enacted or are finalizing emissions reduction requirements on pollution from the oil and gas industry that will bring about substantial reductions in emissions and help to reduce ozone pollution:Colorado’s nationally-leading rules that substantially reduce emissions of methane and volatile organic compounds from oil and gas production.Wyoming’s recently instituted requirements to reduce pollution from new and modified oil and gas sources in the Upper Green River Basin through regular, mandatory leak detection inspections. A statewide approach is needed to better target new problem areas, but the state deserves praise for a proposal to extend these strong requirements to existing pollution sources in the basin as well.Utah has made some positive steps, in particular, by requiring that devices known as pneumatic controllers used by the oil and gas industry be retrofitted with lower emitting models.
Coupled with recently announced plans for a federal methane rule from EPA and rule to minimize waste from the Bureau of Land Management, these state requirements will have positive impacts for air quality. Moreover, policies that keep methane – the main ingredient in natural gas – out of the air and in the pipeline benefit not only the environment, but also the industry (through additional gas sales) as well as the beneficiaries of the royalties paid on a resource that’s no longer being wasted.
Better standards are needed to protect us all from ozone pollution, but luckily, sensible controls on the major sources of this pollution in the western US are there for the taking. As states in the region and federal regulators continue to lead toward better pollution reduction rules, this can be one Western with a happy ending.
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States Back House Coal Ash Bill But Democrats Seek Stricter Protections
Mar 19, 2015 | InsideEPA
By David LaRoss
State regulators are backing House Republicans' draft bill to overhaul parts of EPA's final coal ash waste disposal rule because it would give states primary authority to craft and enforce disposal standards, but Democrats are pushing back against what they see as a substantial weakening of the EPA rule's technical disposal requirements.
"The draft bill has successfully captured the essential parts of the EPA rule on [coal ash] management that are germane to the protection of the environment and public health, and has modified or added those areas that improve upon the rule," Pennsylvania waste management head Michael Forbeck, president of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), said in his testimony at a March 18 House hearing on the measure.
Virginia Department of Environmental Quality head David Paylor -- on behalf of the Environmental Council of the States (ECOS), representing many state environmental agencies -- also backed the draft bill. "ECOS has reviewed the draft bill, and find[s] that it positively addresses the concerns identified by ECOS" at past hearings on the issue, he told the hearing hosted by the House Energy & Commerce Committee's energy and environment panel.
The draft bill by Rep. David McKinley (R-WV) aims to replace EPA's final rule governing disposal of coal ash -- which the agency signed in December but has yet to publish in the Federal Register -- with a regime administered by states. It would also underscore EPA's decision to regulate ash as a Resource Conservation & Recovery Act (RCRA) subtitle D solid waste by barring any future regulation of ash as a subtitle C hazardous waste.
State and industry concerns over EPA's rule have mainly focused on enforcement. Prior to the rule's finalization, they had urged the agency to apply a regime where states would have primary authority to craft and implement RCRA subtitle D coal ash standards subject to federal review and approval of their policies.
EPA instead opted for a system of national standards enforced through citizen suits in federal courts. Critics of the rule have argued that the agency's plan will lead to conflicting or redundant federal and state requirements.
Under the agency's final rule, "It is certainly possible that some states would adopt their own [coal ash] standards. There would not be a permitting mechanism, however, and they would be subject to a one-size-fits-all situation. There might be some spotty enforcement by states, but as a whole the one-size-fits-all approach would in fact leave citizen suits as the primary mechanism" for enforcing the rule, Virginia's Paylor said in response to a question from Rep. Frank Pallone (D-NJ), the House energy panel environment subcommittee's ranking member.
An ASTSWMO source says states that already enforce RCRA subtitle D rules will be able to add coal ash to their programs without needing to craft a new enforcement regime "from the ground up," easing potential resource concerns over a new statutory mandate. "It's a continuation of the enforcement they already do."
The White House is yet to weigh in on the draft legislation, though EPA waste chief Mathy Stanislaus at a Jan. 22 House energy panel environment subcommittee downplayed the need for legislation to address what GOP lawmakers say is uncertainty over whether the agency may revisit its decision that ash is not a hazardous waste and fears that some provisions of the rule make operators vulnerable to citizen suit enforcement.
Although previous attempts to move coal ash legislation in the 113th Congress failed to clear the then-Democratic Senate, the White House never threatened a veto of the bill. Instead, the administration suggested changes to the bill to win its support, raising the prospects that it could seek similar conditions for backing the new bill.
Democrats' Concerns
While states' support for the draft bill could boost its prospects for Congress approving the measure, some Democrats are outlining early concerns with the bill as it was released March 11.
At the March 18 environment subcommittee hearing, Pallone and other Democrats on the panel argued that in addition to concerns that EPA might not be able to exercise strict oversight of state programs, McKinley's draft bill would be significantly weaker than the federal rule in other ways, such as by lengthening compliance deadlines and removing some of the regulation's siting restrictions for coal ash impoundments.
"[N]ecessary health protections included in EPA's final rule are left to state discretion or left out entirely. Groundwater monitoring and protection, closure requirements, cleanup requirements -- all could be weaker under this bill than under the final rule. If anything, we should be strengthening the protections in the final rule, not weakening them," Pallone said in his opening statement.
Pallone and other Democrats echoed claims raised by environmentalists after the draft bill was released that it would not include a standard for EPA to apply in reviewing state coal ash standards, unlike the disposal rule which requires state-crafted standards to show "no reasonable probability of adverse effects on health or the environment from disposal" of the waste.
Earthjustice attorney Lisa Evans reiterated that argument at the hearing, saying in response to a question from full House energy committee ranking member Rep. Paul Tonko (D-NY) that the bill would include "no standard of protection" binding on states, and that it would allow states to redefine key metrics like facilities' level of potential "hazard" in their rules.
However, defenders of the bill countered that states would have to show a "reasonable basis" for any such changes. "The states have programs already -- what this legislation will do is enforce a floor, and in order to deviate from that floor you have to show a reasonable basis for your decision," Jim Roewer, the executive director of the Utility Solid Waste Activities Group (USWAG) -- who represented USWAG, the Edison Electric Institute and the American Public Power Association at the hearing -- told Inside EPA in a March 18 interview.
EPA's rule regulates ash as a solid waste under subtitle D of RCRA, as industry and states sought. That move rejected calls from environmentalists for regulation as hazardous waste under RCRA subtitle C that they argued would lead to stricter disposal controls, though industry said solid waste rules are just as protective as subtitle C. McKinley's draft echoes much of the content of legislation he unsuccessfully pushed in 2013 that would generally apply subtitle D solid waste standards for coal ash, but under a new enforcement track where states would craft standards for ash disposal that would be reviewed and approved by EPA, without citizen suit provisions, and would prevent EPA from revisiting the subtitle D designation in the future.
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Mar 19, 2015 | PoliticoPro
By Erica Martinson
The Supreme Court is about to hear a set of legal challenges to President Barack Obama’s biggest environmental regulation to date — one that bears much of the responsibility for the trend of coal-burning power plants shutting down.
Next week’s oral arguments will give states and industry groups a last-ditch chance to try to derail a mercury rule for power plants that critics consider a bulwark of Obama’s “War on Coal,” just weeks before the rule is scheduled to take effect.
The court is considering only a narrow aspect of the dispute — whether the EPA should have paid more attention to costs before deciding to write its Mercury and Air Toxics Standards. But the outcome could offer omens for future court challenges against the rest of Obama’s environmental agenda, including a major greenhouse gas rule for power plants that the agency is set to issue this summer, as well as the administration’s broader efforts to shift the nation’s power supply toward wind, solar and natural gas instead of coal.
The mercury rule at issue in Wednesday’s arguments has already had a serious impact on the future of coal-burning power: It has forced owners of the nation’s oldest, dirtiest plants to decide whether to invest in pollution controls to comply with the rule. In many cases, they’re closing the plants instead.
The regulation was two decades in the making, born out of the 1990 Clean Air Act amendments signed by President George H.W. Bush. The decision on whether to regulate the mercury and toxic air pollution, and the agency’s subsequent attempts to craft a rule, cycled through EPA and the courts during the Clinton and George W. Bush administrations before Obama’s EPA brought it across the finish line in 2012.
Environmentalists hailed the rule as a major victory and say that by law, the agency had to act.
“In our view, Congress recognized that these pollutants are extremely dangerous and Congress’ top priority was putting an end to the pollution,” said Neil Gormley, an attorney for Earthjustice, an environmental group supporting EPA in the case. “So under the Clean Air Act, it’s not up to EPA to expose thousands of people to risk of death or to expose children to mercury poisoning.”
Last year, a federal appeals court broadly upheld the mercury rule, backing the agency in a long list of legal challenges that states and industry groups had filed.
Meanwhile, utilities have been dumping billions of dollars into upgrading their power plants, while dozens more have shut down. As many more plants are planning to close between April 15, when the rule goes into effect, and next year, the deadline for states that have gotten extensions.
Power companies are scheduled to shut down 12.9 gigawatts of coal-fired generation this year, according to the U.S. Energy Information Administration. By the end of this decade, it says, nearly 20 percent of the 300 gigawatts of coal-fired capacity that existed three years ago will be gone. The shutdowns to date have mostly involved smaller, underused plants, and are mostly due to the mercury rule.
The Supreme Court has focused next week’s arguments on a single issue: Exactly when should EPA have considered the high costs of pollution controls?
The law says that before EPA regulates mercury, acid gases and toxic metals from power plants, it must first determine whether doing so is “appropriate and necessary.” EPA took that as a question entirely of public health. But the rule’s opponents say Congress clearly would have considered “appropriate” to depend on cost.
Opponents also contend that the EPA would have skipped the rule altogether if it had first considered costs — though that seems unlikely given that the Obama administration later determined that the rule’s benefits will far outweigh its burdens.
“The case is unusual in that it turns on the meaning of a single word in a single paragraph of a 300-plus page statute, and it is a paragraph that applies to just one industry,” said former EPA air attorney Jacob Hollinger, now with McDermott Will & Emery.
“To put it simply, Congress directed EPA to decide whether regulation is worth it,” attorneys for the state of Michigan — which is leading the 21 state governments challenging the rule — wrote in a final brief to the court Wednesday.
Environmentalists hope the justices will agree that “appropriate” is an ambiguous term, and that therefore the court should defer to the agency when interpreting the often-unclear will of Congress.
Whether the court leaves that call up to EPA will be of keen interest to many following the agency’s other actions on coal — particularly the upcoming greenhouse gas regulations for power plants that are the cornerstone of Obama’s efforts to carve out a legacy on climate change.
The case won’t directly test EPA’s climate rule but could have an impact, depending on how the courts decide.
Some states, utilities and coal companies have already sued over EPA’s proposed greenhouse gas rule for power plants, and their case hinges on the existence of the 2012 mercury rule. They contend that the Clean Air Act doesn’t allow EPA to regulate power plants under two separate sections of the law. But EPA is trying to do just that: The mercury rule relies on Section 112, while the climate rule relies on little-used Section 111(d).
The climate case will be argued in appeals court in the coming weeks. If the opponents win there, then essentially the mercury rule would prohibit EPA from regulating greenhouse gases. But if industry succeeds in getting both the mercury and climate rules struck down, then the two-sections problem would no longer apply — though the EPA would have to decide which type of pollution it really wants to go after next.
“What that does, in essence, is put EPA back to the drawing board and a decision point,” said industry attorney Allison Wood, a partner at Hunton & Williams. “It’s an either-or proposition.”
Few Supreme Court-watchers expect the justices to upend the whole mercury rule, given the narrow scope of the case they agreed to hear. While testifying at a House Energy and Power Subcommittee hearing this week, Wood noted that even a Supreme Court victory “is probably going to be hollow for many electric utilities because they have already installed the pollution controls.”
But the justices could decide that the EPA had failed to do its due diligence in deciding to craft the regulation. They could then either tell the agency to try again or send that part of the decision back to appeals court. If EPA must rewrite the rule, it’s questionable whether it could zoom through the often-sluggish legal and regulatory process before Obama leaves office, especially with so many agency employees now focused on the climate rule.
The fact that the Supreme Court jumped to examine the cost-benefit concerns of an EPA regulation isn’t surprising. That has been a central concern of the high court in recent years, although the results have followed no straight line.
In a 2007 Clean Water Act case over cooling towers at power plants, the court said the EPA could consider costs but did not have to. In a 2001 ruling involving trucking, the court said the agency absolutely cannot consider costs when setting health-based air quality standards.
For the mercury rule, the D.C. Circuit Court of Appeals upheld EPA’s decision not to consider costs when weighing whether to tackle power plants’ air pollution. But in a scathing partial dissent, Judge Brett Kavanaugh took the agency to task.
“The estimated cost of compliance with EPA’s Final Rule is approximately $9.6 billion per year, by EPA’s own calculation,” Kavanaugh wrote. He added: “To put it in perspective, that amount would pay the annual health insurance premiums of about two million Americans. It would pay the annual salaries of about 200,000 members of the U.S. Military. It would cover the annual budget of the entire National Park Service three times over.”
During oral arguments, Kavanaugh said the refusal to consider costs seemed “weird.”
In a move that may have baited Supreme Court justices into taking the case, both Kavanaugh and the lead judges cited the same cases to defend their reasoning, but with different interpretations.
Kavanaugh’s dissenting brief played directly to the justices. He referred directly to Justice Stephen Breyer, who is known in legal circles for his strong interest in cost-benefit analysis, and mentioned “many other leading jurists and scholars,” including a statement that Justice Elena Kagan had made in a prior power plant case.
Attorneys are known to angle their briefs toward Breyer, who will undoubtedly be the justice to watch during Wednesday’s arguments. Past rulings from Breyer and Justice Antonin Scalia have also hinged on just how rigorous an early cost-benefit calculation should be, while Justice Ruth Bader Ginsburg has expressed skepticism about the value of such an effort.
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When Legally Liable, Companies Don't Dispute Global Warming
Mar 19, 2015 | E&E - Greenwire
By Jean Chemnick
U.S. coal companies that are publicly skeptical of man-made climate change acknowledge in mandatory financial disclosures the widely accepted scientific link between fossil fuel emissions and a warming planet, a Greenwire analysis has found.
Sustainable investment advocates warn that such doublespeak undermines the industry's credibility with shareholders. And scientific integrity experts are critical of the coal companies' climate communication strategy, which they argue is detrimental to the long-term health and security of the American people.
The highest profile practitioner of targeted climate messaging is Peabody Energy Corp., the world's largest private-sector coal company. Peabody produced more than 180 million short tons of coal -- or nearly 19 percent of national output -- in 2013, according to U.S. Energy Information Administration data.
Peabody repeatedly questioned climate science in its December 2014 comments on U.S. EPA's Clean Power Plan, a regulatory effort meant to force states to cut emissions of planet-warming carbon dioxide released from existing coal-fired power plants.
"The climate science upon which EPA relies cannot sustain this dramatic step to remake a significant sector of the American economy," the company said in a 145-page attack on the proposed emission limits.
It then referenced the work of the Nobel Prize-winning Intergovernmental Panel on Climate Change (IPCC), which EPA used to declare CO2 a pollutant.
"Even if the IPCC report were taken at face value (and it is deeply flawed and should not be accepted at face value), the IPCC has steadily downgraded its projections since 2007. It now predicts a slow and moderate warming trend that the IPCC's own data and own scientists have indicated will be net beneficial to the world," Peabody wrote, and then noted CO2 promotes plant growth and reduces heating costs and cold-related health problems.
Existing climate models are "fatally flawed," the company went on to assert, citing a divergence between predicted atmospheric warming and actual warming that is largely explained by increasing deep ocean temperatures.
"These concerns cannot be brushed aside," Peabody said.
But in the required annual performance summary the coal giant filed with the U.S. Securities and Exchange Commission last month, the company appeared to do just that.
In a section of Peabody's 2014 10-K report that discusses risks that "could materially and adversely affect our business," the company acknowledges that IPCC reports have "engendered concern about the impacts of human activity, especially fossil fuel combustion, on global climate issues." No mention was made of the allegedly unreliable science that underpinned those reports from the IPCC.
The company then said "increasing government attention is being paid to global climate issues and to emissions of what are commonly referred to as greenhouse gases, including emissions of carbon dioxide from coal combustion by power plants." It went on to downplay the impact any potential climate laws, regulations or other actions could have on its bottom line.
"Outside of SEC filings, companies might feel freer to lobby," said Betty Moy Huber, an expert in environmental law and corporate compliance issues at Davis Polk & Wardwell LLP. "Within an SEC filing, there is a whole different set of liability standards, and they would be ill-advised to something that cannot be legally backed up."
Publicly traded companies tend to be candid in their 10-K filings because not doing so could result in litigation from investors or regulatory scrutiny if those annual disclosure reports are found to be misleading. 'Reputation risk'
But disclosure advocates express concern when a company's SEC filing appears to differ from other communications.
"That information does not square," said Jim Coburn, a manager at the sustainable investment group Ceres, responding to Peabody's statements. Along with research group CookESG, Ceres created the SEC climate disclosure search tool that Greenwire used to comb through 10-Ks.
"That's a real problem for the company because the company is misleading investors in its SEC filings," Coburn said. For investors "to understand the company's true stance on climate issues," they would have to seek out its EPA comments, as well as weigh the significance of its trade group memberships and political contributions, he said.
The difference between the straightforward disclosures Peabody made to the SEC and the statements included in its EPA comments poses a "reputation risk problem," Coburn added. Investors may no longer believe what the company has about other threats to its business since -- in the case of climate change, at least -- it prefers to pretend that some risks don't exist, he suggested.
This type of inconsistent messaging extends beyond the climate issue, according to industry critics.
When mines have closed, for instance, some coal companies have loudly blamed the layoffs on Obama administration regulations. At the same time, however, they have offered a more nuanced explanation of their woes to investors, which are mostly the result of competition from abundant natural gas and the spread of renewables.
Peabody pushed back against any suggestions that the company is espousing contradictory views.
"Peabody's position on carbon and climate and on the importance of continuing to develop clean coal technologies to address the issues has been consistent over time," the company said in a statement, which was limited by what it can legally say about its SEC disclosures. Widespread practice
Alpha Natural Resources Inc. -- which produced nearly 9 percent of U.S. coal in 2013, the market's fourth-highest share -- also clearly explained the link between global warming and fossil fuel consumption in the regulatory and legal risks section of its 2014 10-K filing.
Kevin Crutchfield, chief executive officer of Alpha Natural Resources Inc., during an interview in New York in September 2014. Photo by Victor J. Blue/Bloomberg courtesy of Getty Images.
"Global climate change continues to attract considerable public and scientific attention," Alpha said. "There is concern in particular about the emissions of GHGs [or greenhouse gases], such as carbon dioxide and methane."
The company's document says, "Combustion of fossil fuels like coal and gas results in the creation of carbon dioxide, which is currently emitted into the atmosphere by coal and gas end users, such as coal-fired electric power generators. As a result, there have been and are expected to be numerous GHG emissions initiatives that could reduce the demand for coal."
During a March 2012 event, however, Alpha CEO Kevin Crutchfield cast doubt on the connection between fossil fuel consumption and climate change. He declared that EPA limits on power plant CO2 emissions "would be hugely problematic," in part because of uncertainty about global warming, which 97 percent of climate scientists say is very likely caused by human activities.
"It does seem like something is going on," he said in response to a question about climate change, according to West Virginia's Charleston Gazette.
But he added that "the question that has to be asked is, 'Is mankind contributing to that?' I don't really know the answer to that."
An Alpha spokesman did not respond to a request for comment. Companies' 'most material' risk
The SEC issued guidance in 2010 specifically requiring companies to disclose any physical impacts climate change may be having on their operations (ClimateWire, Jan. 28, 2010).
Environmentalists considered it a major win. But industry advocates -- both inside and outside the SEC -- said the science wasn't settled enough for the requirement, which some lawmakers tried to overturn.
U.S. coal companies have sought to satisfy these requirements by generally discussing climate change in their 10-Ks in terms of current or potential government scrutiny. But Peabody, Alpha and other majors like Cloud Peak Energy Inc. and Arch Coal Inc. tend to steer clear of climate-related infrastructure issues posed by sea-level rise or the potential for increasingly severe natural disasters.
"It is possible that future international, federal and state initiatives to control GHG emissions could result in increased costs associated with coal production and consumption," Alliance Resource Partners LP said in one representative passage.
Such efforts could require Alliance's utility industry customers "to install additional controls to reduce carbon dioxide emissions or costs to purchase emissions reduction credits to comply with future emissions trading programs," the company said in its 10-K.
Bob Murray speaking to reporters in August 2007 near Huntington, Utah. Photo by Justin Sullivan courtesy of Getty Images.
Huber said the SEC requires companies to disclose material impacts related to climate change. "Much of it is judgment," she said, "of what a company believes is material."
Beyond physical impacts, Huber said companies must also report whether rules and regulations could hurt the bottom line. For U.S. coal companies, climate change regulations may indeed be "the most material item," she said.
A 2013 Congressional Research Service report, citing other studies -- including ones conducted by Ceres and Davis Polk -- said the new SEC guidance had not dramatically changed the reporting habits of many companies. It also suggested the SEC was not cracking down on those who didn't follow the guidelines.
The guidance, however, does not apply to Murray Energy Corp., which is also among the largest U.S. coal producers. The company's private ownership means it doesn't have to file annual disclosure reports with the SEC.
That has left CEO Robert Murray free to offer unrelenting criticism of the climate change science without ever having to show how or if his company is preparing for global warming.
"In the late 1980s, environmental alarmists and liberal politicians and elitists attempted to scare us with the terrible consequences of 'acid rain,'" Murray said during a speech last year. "Today, their platform is 'global warming.'" Earning shareholder trust
Not all extraction companies focus on regulatory burdens when talking about global warming. International mining giant Rio Tinto PLC, for example, has long been outspoken about the impacts of climate change on its operations.
"We operate in a complex and interconnected world where global and local issues -- such as biodiversity, climate change, livelihoods, and regional economic development -- bring both risk and opportunity to the design, development and management of our operations," its most recent annual report told investors.
"Mining, smelting, refining and infrastructure installations are vulnerable to natural events including earthquakes, subsidence, drought, flood, fire, storm and climate change," the report says.
Huber, the corporate-compliance attorney, said companies with a strong European presence tend to be more vocal about potential physical climate change impacts, responding to investor wishes. "As compared to U.S. companies, it is more important to them, and they are more conscious about it," she said, "and the reporting tends to be more fulsome and varied."
Coal companies could better earn shareholders' trust, said Ceres' Coburn, by being more candid about the risk climate change poses to their businesses, not just associated with regulations.
That was the main message Ceres and a group of 70 global investors managing more than $3 trillion of collective assets delivered to 45 fossil fuel-dependent corporations almost two years ago (ClimateWire, Oct. 25, 2013).
While companies have a right to vocally oppose regulations they believe could harm shareholders, they shouldn't do so by spreading misinformation, said Grechen Goldman, lead analyst at the Center for Science and Democracy, a Union of Concerned Scientists project.
"They do not have a right to misrepresent scientific facts," Goldman said. "This is an issue that has seen a tremendous amount of misinformation, and so for them to be spreading that misinformation or otherwise supporting misrepresentations of climate science is immoral and not appropriate."
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Greens Escalate Opposition to Waste-Handling Legislation
Mar 19, 2015 | E&E Daily News
By Manuel Quiñones
Environmental groups are speaking out against draft legislation to regulate the disposal of coal-combustion waste as U.S. EPA prepared to publish the first national rules on the issue.
Coal-state lawmakers, utilities and coal ash recycling interests have for years worked to address ash disposal through legislation, fearing EPA would designate the waste as hazardous.
But even though the agency has decided against such an approach, critics say Congress still needs to step in. Reps. John Shimkus (R-Ill.), chairman of the House Energy and Commerce's subcommittee on Environment and the Economy, and David McKinley (R-W.Va.) floated a draft bill in response.
Shimkus said during a hearing yesterday the legislation would address "significant limitations of the rule." What's more, he said, it would "take their rule and make it stronger."
Because EPA decided to regulate coal ash as nonhazardous under Subtitle D of the Resource Conservation and Recovery Act, states may decide not to adopt it and oversight could be left to citizen lawsuits. The draft bill would streamline oversight by creating a state-focused permitting program with some federal input.
"In giving states authority to implement the technical requirements in EPA's final rule through a [coal combustion residuals] permit program, the draft legislation eliminates the situation of dual state and federal regulatory authority," said Michael Forbeck, environmental program manager for the Pennsylvania Department of Environmental Protection.
But while lawmakers have for years promoted the legislation as a compromise and suggested adding financial assurance requirements for impoundments, environmentalists are unconvinced. While they may not be thrilled with EPA's approach, they say the bill would make things worse.
They say the legislation would scrap some requirements in EPA's rule, including provisions for siting wet-ash impoundments, and would loosen compliance deadlines. And they think industry and states should accept EPA's compromises.
"The EPA's first-ever coal ash rule was a compromise that went to great lengths to address the concerns of industry, recyclers and states by characterizing coal ash as non-hazardous, does not ban the continued operation of coal ash ponds, exempts the beneficial use of coal ash, and establishes generous time frames for compliance and closure," the groups wrote in a letter to lawmakers.
Earthjustice attorney Lisa Evans told lawmakers that, "Despite these generous concessions, this bill guts the rule's remaining critical protections in a manner that will cause permanent and wide-ranging harm to our health, environment and economy."
She said, "The bill is an attack on the safety and certainty established by the EPA rule, providing significant benefit only to polluters." Formal bill coming
Beyond issues of enforcement and citizen litigation, utilities and states point to onerous deadlines and insufficient flexibility as reasons for supporting the draft bill.
"We also appreciate that the bill properly restores the ability of the implementing agency to include site-specific, risk-based management options in permits," said Jim Roewer, executive director of the Utility Solid Waste Activities Group.
Similarly, Virginia Department of Environmental Quality Director David Paylor said the bill allows states "to identify alternative points of compliance for monitoring, alternative ground water protection standards, remediation flexibility and to allow unlined impoundments to operate for a period of time, providing there are no groundwater threats and the structural integrity of impoundment terms is maintained."
Statements like Roewer and Paylor's make environmentalists nervous. What's more, they know the Republican-controlled Senate is less likely to pass on coal ash legislation as the chamber has done under Democratic control in previous years.
Even though a number of Democrats have supported previous versions, New York Rep. Paul Tonko, the subcommittee's top Democrat, is hoping they hold off this time around. "At this point, however, I do not see the need for legislation," he said. "At this point, any problems with the rules are speculative."
EPA's rule will become effective six months after its publication in the Federal Register. The agency has yet to publish the rule.
House lawmakers plan to turn their draft into a formal bill later this spring. And the Senate, sources say, is looking to mirror the House approach.
Shimkus will reconvene his subcommittee next week to hear testimony on the draft bill from EPA. But residents who live near ash dumps want lawmakers to hold a hearing to hear from their concerns.
"You have already heard presentations from power companies and their lobbyists, state agencies and EPA, and several environmental organizations," they wrote. "We are asking now that you make time for the people who have the most to lose if the new EPA rule is slowed down or made weaker."
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Towns Launch 'David and Goliath' Challenges to Crude-By-Rail Traffic
Mar 19, 2015 | E&E - Energywire
By Blake Sobczak
Jim Adams, mayor of Crystal, Minn., said he and his constituents are "going to make as much noise as we can" over a half-mile stretch of train tracks that haven't even been built.
The result? Several packed public meetings, an unusual multimillion-dollar real estate deal and even state legislation that would bring the matter to President Obama's desk.
"This came from a local Crystal issue to a regional issue in a very short time," Adams said, adding that he has been "completely amazed" by the response.
The BNSF Railway Co. proposal in question would link a little-used rail line in Crystal to busier tracks run by Canadian Pacific Railway Ltd. The connection could send mile-long oil trains through Minneapolis suburbs that have never seen such traffic.
Local pushback against BNSF's project reflects broader discontent around freight rail lines across the nation. The surge in crude traffic in recent years -- coupled with a string of oil train derailments and fires -- has pushed cities to act against the very railroads they were often built around.
But city leaders who challenge railroads can be hamstrung by eminent domain laws, federally pre-emptive regulations and other legal realities that favor interstate commerce.
"This is their property through our cities, and they intend to use it," noted hazardous materials consultant and rail safety advocate Fred Millar. "The railroads are going to be very careful not to give away anything that intrudes on their overall sovereignty."
In Crystal, Adams said he is not contesting the rail business or even crude shipments. Instead, he's calling on federal transportation regulators to require a full environmental assessment of BNSF's rail spur, a step he expects will highlight safety problems posed by blocked crossings. The Federal Railroad Safety Act of 1970 gives some leeway to regulate railroads outside the federal level if "necessary to eliminate or reduce an essentially local safety or security hazard."
Adams said his town likely couldn't dissuade BNSF from the project if the Berkshire Hathaway subsidiary pitched a legal battle.
"We know we're dealing with someone who's got more power than we have, and we're just doing pretty much everything that we can," he said. Thrown into the fray
BNSF spokeswoman Amy McBeth said the company is considering the Crystal connection "to more efficiently move all kinds of freight traffic already moving through the metro area."
She pointed out that 2014 "was our all-time safest year, even while volumes of all kinds are increasing."
Nevertheless, county officials this month moved to buy property BNSF would need for the project before the company could get hold of it.
Hennepin County Commissioner Mike Opat, who represents Crystal, said the purchase was to prevent BNSF "from connecting up to Canadian Pacific to run oil trains through densely populated suburbs."
A BNSF oil train derailed and exploded near Galena, Ill., earlier this month, just weeks after a separate CSX Corp. crude-by-rail accident near Mount Carbon, W.Va.
"Purchasing the property was sort of a county effort to throw ourselves into the fray and protect and preserve public safety," said Opat's principal aide, Steve Gershone. "We hope it will just make the cost of this connection too high for [BNSF] and maybe they'll look somewhere else to alleviate that congestion."
A bill under consideration in the Minnesota Legislature would exempt Hennepin County from eminent domain laws that BNSF could normally use to acquire the three small properties needed for the connection.
A separate bill urges the federal Surface Transportation Board "to order the BNSF Railway Company or the Canadian Pacific railroad to complete an environmental impact statement prior to acquiring land, completing final design, or commencing construction of the railroad connector track." It would also dispatch copies of the resolution to Obama and several U.S. lawmakers.
CP declined to comment.
The freight rail industry has launched several programs to head off tensions with communities. The TRANSCAER initiative aims to improve community relations through hazardous materials education and training exercises. In the event of an oil train derailment, companies set up community outreach centers and compensate victims and businesses affected by the accident.
A devastating oil train derailment in 2013 shook that approach to compensating communities, however. That July, a Montreal, Maine & Atlantic Railway Ltd. train hauling crude from North Dakota jumped the tracks and exploded in Lac-Mégantic, Quebec, killing 47 people and decimating the center of town. The railroad soon declared bankruptcy, leaving surviving victims and the Canadian government to sort out how to recover hundreds of millions of dollars in cleanup costs and other damages.
BNSF's Executive Chairman Matt Rose said at a conference in January that "we are sympathetic to these communities we operate in," noting that the railroad is "working with local officials on their concerns."
Given rising rail traffic, he said "there's no easy answers."
"On our railroad, we have 38,000 crossings, and if you go out and talk to the people who live there, every one of them is absolutely critical to the long-term well-being of that small town," Rose said. "There are going to be really hard decisions made on both the community side, as well as the policy side." 'Extreme measures'
Crystal isn't the only city to have caused a stir in the railroad industry.
"Any small town you talk to would tell you that the railroad doesn't always listen to you real well, and you sometimes have to take a little more extreme measures to get their attention," said Alan Lee, mayor of Berthold, N.D.
The Berthold City Council recently approved an ordinance to bar trains from blocking crossings for more than 20 minutes in the small town of 600.
Lee said mile-long "unit" trains of oil and other commodities risked tying up ambulances or fire trucks on one side of the tracks.
Nearly 700,000 barrels of oil leave North Dakota daily by rail, according to the latest figures available from the North Dakota Pipeline Authority, bringing record hazardous materials traffic through the region.
Berthold's decision to ticket trains that hold up crossings mirrors a similar move by Enderlin, N.D., last year.
But Enderlin rolled back its 10-minute parking limit in January after a legal challenge from Canadian Pacific.
CP's lawyers argued in court filings that Enderlin's ordinance "will substantially interfere with railroad operations, create safety risks, and unduly burden interstate commerce."
The company's complaint went on to say that Enderlin had violated the U.S. Constitution and sought to recover attorney's fees and "further relief" from the city of some 900 residents.
Asked whether he was worried about a similar court battle over Berthold's ordinance, Lee said he expected the railroads to "be better citizens" given public scrutiny following recent derailments.
"They're big enough and have enough money that most of these towns can't afford to challenge them," Lee said. "The railroads have a bank of lawyers -- we have one.
"He's a good one," Lee added. 'David and Goliath'
Karen Darch, village president of Barrington, Ill., has pitched her own yearslong battle to draw attention to local concerns along a busy Canadian National Railway Co. line.
Most recently, Darch has petitioned the Surface Transportation Board to make CN pay for part of a planned $64 million grade-separated crossing to ease the disruption to the Barrington community.
"It would be great if they just said, 'OK, we'll pay part of the underpass,' but I think they're looking at it from a business perspective," Darch said of CN.
CN acquired the Barrington tracks seven years ago to give the company a way around the rail chokepoint of Chicago. Darch and her city's legal team have argued that the company failed to account for an uptick of crude traffic through the area since its initial environmental review.
The Canadian railroad has contested those claims.
"It is true that CN has experienced some increases in energy-related traffic through Barrington in the form of (i) heavy crude oil from Western Canada and (ii) frac sand from Wisconsin, but neither is moving or is expected to move in overwhelming volumes through Barrington," CN countered in a Dec. 16, 2014, reply to STB.
The following month, Fiona Murray, vice president of corporate marketing for CN, updated that assessment to reflect the decline in oil prices. "If oil remains at or below $50 per barrel, I project that the additional volume of loaded heavy crude unit trains for 2015 will be no greater than the low end of my earlier estimate, that is, 8 trains per week, or 1.1 trains per day," Murray wrote.
The company has urged STB to dismiss Barrington's case.
Darch, a former attorney, said she has no intent on dropping her requests. She said her legal skills have come in handy during "cordial" but occasionally tense exchanges with CN.
"It helped to be a lawyer -- the bargaining position here was, you know, David and Goliath," she said. "It's been a long haul in terms of trying to tip the balance of power."
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House Democrats File $1B Rail Safety Bill
Mar 19, 2015 | The Hill - Transportation
By Keith Laing
A group of House Democrats is calling for Congress to spend $1 billion over the next five years on boosting the safety of U.S. commuter railways after a recent string of accidents.
The funding is contained in a piece of legislation introduced by Reps. Dan Lipinski (D-Ill.) and Mike Quigley (D-Ill.) that has been dubbed the Reassuring Adequate Investment in Lifesaving Systems (RAILS) Act.
The lawmakers said the measure calls for spending $200 million per year on “positive train control safety technologies, rail integrity inspection systems, a system for electronic communication regarding hazardous material rail shipments, and other new rail safety items.” ADVERTISEMENT“Representing a district that includes four commuter rail lines, Amtrak, and six of the country's seven Class I freight railroads, I understand how important rail safety is,” Lipinski said in a statement. “This bill dedicates funding and resources to benefit the safety of millions of Americans as a key part of the Chicagoland economy moves to modernize its safety systems to comply with the positive train control requirement.”
The introduction of the legislation comes weeks after lawmakers in the Republican-led House passed a passenger rail bill that authorized $7.8 billion for Amtrak. Transportation Policy Best Sellers:Sustainable Transportati…William R. Black (Hardcover…$51.90An Introduction to Susta…Preston L. Schiller, Eric Bru…$41.24Transportation Planning …Mark Garrett, Martin Wachs …$59.3812>Privacy
The sponsors of the new legislation said it is important to boost funding for the nation’s other commuter railways as well.
“As the nation’s rail hub, nowhere are investments in safety technology more crucial than in Chicago. Yet, commuter railroads like Metra lack the funding necessary to ensure new safety technologies, like positive train control, are implemented the right way,” Quigley said. “Reauthorizing the Rail Safety Technology Grant program will provide the critical funding and support needed for commuter railroads around the country to modernize their infrastructure and keep their passengers safe.”
The 2008 rail safety bill contained a mandate for the automatic railway navigation systems that are known as positive train control (PTC) that have become controversial in the intervening years.
The 2008 measure required rail companies to have the PTC automatic control systems in place by this year. The mandate was enacted in the wake of a crash on California’s Metrolink commuter railway that year that involved a commuter and a freight train colliding head-on in a crash that killed more than 20 people.
Rail companies have said since then the deadline is too burdensome to meet.
"Due to PTC's complexity and the enormity of the implementation task — and the fact that much of the technology PTC requires simply did not exist when the PTC mandate was passed and has had to be developed from scratch — much work remains to be done," the Association of American Railroads said in a post on its website.
"Despite railroads' best efforts, various technical and non-technical challenges make full development and deployment of PTC by 2015 impossible," the AAR continued.
Republicans have warned of the dangers of overreacting to the string of accidents on Amtrak and commuter railways in New York and California.
"I think it's something like 90 percent of the deaths that occur within the railroad industry are because either people run grade crossings or they trespass onto the property and they get run over by a train," House Transportation Committee Chairman Bill Shuster (R-Pa.) said during a briefing with reporters at the Capitol on Wednesday.
"If we could outlaw stupidity, we'd try to do that, but it's a hard thing to do," Shuster continued.
The sponsors of the new legislation said their measure would help rail companies get over the finish line with automatic train control, despite the GOP's admonitions about over-regulating the rail industry.
“The Railroad Safety Technology Grant Program was first authorized under the Rail Safety Improvement Act of 2008,” the lawmakers’ offices said in a statement. “The program authorizes the Department of Transportation to provide grants to passenger and freight rail carriers, railroad suppliers, and state and local governments for projects that have a public benefit of improved railroad safety and efficiency. Reps. Quigley and Lipinski helped set aside $60 million in the FY14 omnibus to fund this project in its final year.”
The measure is cosponsored by Reps. Bobby Rush (D-Ill.), Danny Davis (D-Ill.), Luis Gutiérrez (D-Ill.), Tammy Duckworth (D-Ill.) and Robin Kelly (D-Ill.).
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Coming Off the Rails? Safety Risks in Crude By Rail: Kemp
Mar 19, 2015 | Reuters
By John Kemp
Trains carrying oil or ethanol have derailed and caught fire at more than a dozen locations across the United States and Canada in the last five years.
Train fires have prompted a fierce debate about the risks of moving large volumes of highly flammable liquids across the rail network and who should be responsible for improving safety.
Safety experts agree catastrophic accidents are almost always the result of multiple failures which defeat attempts to prevent them by a defense-in-depth approach that relies on multiple separate safety systems.
James Reason, one of the most influential voices on safety issues, chronicled how multiple failures contributed to serious accidents such as Chernobyl and air crashes (“Managing the risks of organizational accidents” 1997).
In a modern accident investigation, safety investigators will normally identify an immediate cause such as a broken rail or the failure to set brakes properly.
But individual failures should not result in a serious accident if the multiple layers of protection all operate as they are meant to work.
So investigations focus on why all the safety systems were defeated at the same time, and what it reveals about hidden flaws and risks in the systems.
In the case of train fires, U.S. and Canadian accident investigators have identified human error and broken rails as the main immediate causes of derailments and collisions.
Once accidents occurred, however, they were made worse by the tank cars’ failure to contain their hazardous loads. Leaking tank cars created highly dangerous large pool fires. Design flaws proved to be a hidden safety risk.
And oil proved to be much more flammable than industry or regulators believed. Under hazmat regulations, crude has been treated as a low-risk hazard when it has behaved more like a medium or high risk one.
SHARED RESPONSIBILITY
Given the multiple factors which contribute to train fires, railroads, shippers and oil producers must share responsibility for reducing the risk of a catastrophic accident in a densely populated urban area.
Railroads must do more to avoid collisions and derailments. Shippers must provide stronger tank cars that contain their loads if a crash happens. And oil shippers must stabilize their crude to ensure it is safe to transport and properly label it under hazardous materials regulations.
“Rail safety is a shared responsibility between the shippers and (major) railroads” the association of American Fuel and Petrochemical Manufacturers (AFPM) acknowledged in a letter to the U.S. Department of Transportation.
“Our industry is committed to a culture of continuous improvement and making zero incidents the goal,” the association pledged (“AFPM asks DOT to clarify its position on derailments” Mar 17).
But there are still bitter arguments about how much different groups should be expected to contribute to improving safety. Following train fires, accident reports and safety regulators have focused on the dangers posed by unstabilized crude and old tank car designs.
Attention is now turning to the question of how to cut the number of crashes. Shippers and the oil industry complain the government is not doing enough to force railroads to do a better job of keeping trains on the tracks.
TOO MANY DERAILMENTS
In its letter to the U.S. Department of Transportation, the AFPM complained “there were over 1,100 ... derailments in 2014, averaging more than three each day; the number one cause being the result of poor track conditions. We cannot believe that (the DOT) believe that these results are acceptable.”
“Any effort to enhance rail safety must begin with addressing track integrity and human factors, which account for 60 percent of derailments,” the association insisted.
“While more robust tank cars will go a long way toward addressing mitigation in the event of a derailment, keeping the trains on the tracks is the only way to ensure that crude and all other rail shipments will be transported in the safest possible manner.”
The letter ended with a pointed question: “Does DOT believe that the current frequency of derailments is acceptable?”
IMPROVING SAFETY RECORD
US railroads have cut the number of collisions and derailments by 90 percent over the last 40 years, according to incident records compiled by the Federal Railroad Administration (FRA).
In 1975, when the volume of rail traffic was roughly the same as today, there were more than 200 collisions between trains and 3,600 derailments on U.S. railroads.
These figures are for trains on mainlines and exclude accidents which occurred in switchyards, sidings and on private lines. If all these other places are included, there were a staggering 8,000 accidents in 1975, including 1,000 collisions and 6,000 derailments.
By 2014, the number of mainline collisions had been cut to 28 and derailments were reduced to just 329, according to the FRA’s Office of Safety Analysis.
The number of serious accidents involving hazardous materials has also fallen. In the late 1970s, there were more than 100 accidents per year which resulted in the release of hazardous materials. Since 2008, the number has fallen to around 20 a year.
The number of railcars releasing hazmat has dropped from an annual average of 170 in the late 1970s to just 50 between 2010 and 2014.
Reuters has prepared a chartbook showing trends in U.S. rail accidents which can be downloaded here: link.reuters.com/wyw34w.
AFPM is correct that track failures are the leading cause of derailments.
According to the FRA, track failures were the primary cause of almost half of the derailments on U.S. railroads between 2009 and 2014, ahead of equipment failures (26 percent) and human error (15 percent).
HIDDEN DANGERS REVEALED
Railroads can, correctly, point to an impressive record in improving safety. The problem is that transporting crude by rail has proved to be much more dangerous than industry experts and safety regulators originally estimated.
The oil is more flammable than first thought. The tank cars are more prone to rupturing in the event of a derailment. And oil is increasingly moved in unit or block trains consisting of up to 100 tank cars, which present a more concentrated fire risk.
Before 2009, the amount of oil moved by rail was minimal, ensuring the risks remained largely hidden. It is hard to assess the true risks of incidents which happen very infrequently when the sample size is small. But as the amount of oil moved by rail has increased by more than 100-fold, risks that were previously latent or hidden have become much more obvious.
Given the increased volume of flammable liquids being moved by rail, the U.S. Department of Transportation forecasts there will be an average of 10 derailments involving crude and ethanol trains per year over the next 20 years - of which one incident per year could be a serious accident in an urban area.
It is not that U.S. railroads have become less safe in recent years, but that they are now carrying more hazardous cargo than before, and risks that were previously hidden have now become much more obvious.
Reducing those risks must now become an urgent priority. Reducing the danger requires a comprehensive strategy that tackles all aspects of the problem (stabilization, tank cars and track problems), as AFPM noted in its letter.
North Dakota has already introduced regulations requiring that all crude must be stabilized prior to shipping and the U.S. and Canadian governments are in the process of finalizing tougher standards for new tank cars. But tank cars built to older standards will remain in service for up to a decade.
With so many potentially dangerous tank cars likely to remain in service, taking other steps to reduce the risks of derailments is essential. “If older tank cars ... are not phased out sooner, then regulators and industry need to take more steps to reduce the risk of derailments,” Canada’s accident investigators wrote on Tuesday.
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