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ACC PM Mar 25
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(ACC Mentioned) Senate Bill Proposes Label For Bpa-Containing Food Packaging
Mar 25, 2015 | Chemical Watch
Food packaging, containing bisphenol A (BPA), should carry a warning label, according to a bill introduced in the US Senate. The BPA in Food Packaging Right to Know Act would require food packages to carry a label that reads: “This food packaging contains BPA, an endocrine disrupting chemical according to the National Institutes of Health.” -
Ex-EPA Officials Back Bipartisan TSCA Reform Bill
Mar 25, 2015 | E&E Daily News
By Sam Pearson
A group of former top U.S. EPA legal officials who served in the past four administrations recently said they back a bipartisan chemical safety bill under consideration in Congress, offering a counterpoint to legal experts from many states who fear the impact of the proposed changes. The lawyers sent a letter to leaders of the Senate Environment... -
US Agency Extends Consultation on Chemical Exposure Review
Mar 25, 2015 | Chemical Watch
The US Occupational Safety and Health Administration is extending the comment period to 9 October on the proposed review of its approach to managing chemical exposure in the workplace (CW 10 October 2014) The original deadline was 8 April. The agency will consider the update of permissible exposure limits ... -
EPA Proposes Rule for Collecting Health, Safety Data on Nanomaterials
Mar 25, 2015 | E&E - Greenwire
By Sam Pearson
U.S. EPA proposed today requiring companies to provide new disclosures of health and safety information on nanomaterials, in a previously unused application of the Toxic Substances Control Act of 1976. The proposed rule would require companies to provide, on a one-time basis, exposure and health and safety information on nanoscale materials.. -
PEER, Parents Sue Over PCB School Cleanup
Mar 25, 2015 | E&E - Greenwire
By Sam Pearson
A Washington, D.C.-based environmental group and a group of California parents have sued a Los Angeles-area school district over what they say is a lax cleanup of toxic chemicals. Public Employees for Environmental Responsibility and a group of Malibu, Calif., parents called America Unites for Kids -- formerly named Malibu ... -
Chemicals Remain Key Product Risk in EU
Mar 25, 2015 | Chemical Watch
By Carmen Paun
The presence of hazardous chemicals in products such as toys, clothing and textile and childcare articles remains a key reason for products being withdrawn or stopped from reaching the EU market. According to the 2014 report of the EU’s Rapid Alert System for dangerous non-food products (Rapex), presented by the European Commission this... -
Echa Publishes First Annual Report on SVHC Roadmap
Mar 25, 2015 | Chemical Watch
By Geraint Roberts
The efforts of Echa and EU member states to identify relevant substances of very high concern (SVHCs), identified and included in the REACH candidate list by 2020, will focus more on newly identified potential substances of concern and less on known carcinogens, mutagens and reprotoxicants (CMRs). -
Maryland Lawmakers Pass Fracking Moratorium
Mar 25, 2015 | The Hill - E2 Wire
By Timothy Cama
Maryland’s House of Delegates passed a bill that would put a three-year moratorium on hydraulic fracturing in the state. Tuesday also saw Maryland’s Senate pass a bill that would hold any companies fracking in the future to strict standards, labeling the practice “an ultrahazardous and abnormally dangerous activity,” the Baltimore Sun reports. -
House Subcommittee Postpones Markup of Export Bill
Mar 25, 2015 | E&E - Greenwire
By Nick Juliano
A House subcommittee is postponing plans to mark up legislation that would lift the ban on crude oil exports. The Foreign Affairs Subcommittee on Terrorism, Nonproliferation and Trade will be holding a hearing on the issue later this year, and a markup will follow, said Shaylyn Hynes, a spokeswoman for Rep. Ted Poe (R-Texas), who chairs the... -
For Towns Fighting Drilling, The Bills Are As High As The Stakes
Mar 25, 2015 | E&E - Energywire
By Krysti Shallenberger
Mora County, N.M., marched into the hydraulic fracturing fray when its county commissioners passed an ordinance in 2013 banning the production method. But now in the wake of a federal judge striking down their ban in January, the sparsely populated -- and poor -- county must pay the fiddler to the tune of possibly hundreds of thousands of ... -
Cap and Trade Had No 'Discernible Impact' On Gas Prices -- Oil Rep
Mar 25, 2015 | E&E - Greenwire
By Anne C. Mulkern
California gasoline prices didn't jump when the state's cap-and-trade program first expanded to include motor fuels because oil sellers continued making healthy profits, an oil business representative said yesterday. Oil distributors in January were able to eat most costs associated with fuels falling under the carbon emissions cap... -
Calif. Governor Attacks McConnell, Cruz Over Climate Positions
Mar 25, 2015 | E&E - Climatewire
California Gov. Jerry Brown (D) used the extreme drought in his state to criticize the position of GOP leaders on climate change at a press event this weekend. At the event, Brown called Senate Majority Leader Mitch McConnell (R-Ky.) borderline "immoral" for attempting to undermine the federal directive to reduce emissions from existing... -
Democrats, Greens Call McConnell Maneuver 'Another Affront To The Presidency'
Mar 25, 2015 | E&E Daily News
By Daniel Bush
Democrats and green groups are still fuming at Senate Majority Leader Mitch McConnell's latest campaign against U.S. EPA's power plant rules. Critics say the Kentucky Republican's op-ed earlier this month urging states to ignore the pending rules, which will slash carbon emissions in the power sector, marked a new low point in the GOP's ... -
Push For Déjà Vu Climate Votes Raises Some Eyebrows
Mar 25, 2015 | E&E Daily News
By Nick Juliano
The bloc of Senate Democrats most concerned about climate change is angling for a new round of votes this week aimed at calling out Republicans who dismiss its link to human activity. The effort will look very familiar -- senators took a half-dozen votes in January on climate science -- and the approach being eyed for this week's consideration... -
Public Power's Ditto Pushes Legislative Fix To Ferc's Power Plan Role, Federal Agency Moves
Mar 25, 2015 | E&E TV
What role should the federal government play in guiding the electric power sector's evolution? During today's OnPoint, Joy Ditto, senior vice president for legislative and political affairs at the American Public Power Association, discusses the regulatory and market factors at play in the transformation of utilities. She also weighs in on... -
The Constitution Isn’t Burning, But the Planet Is
Mar 25, 2015 | The Hill - Congress Blog
By Abigail Dillen
This week, Harvard law professor Larry Tribe captivated climate deniers and House Republicans when he went before Congress to attack the President’s Clean Power Plan, a landmark proposal to rein in carbon pollution from power plants. When the country’s most famous constitutional law professor teams up with the country’s most regressive... -
Key Senate Dems Appear Open To Delaying Controversial Rule
Mar 25, 2015 | E&E Daily News
By Amy Snider
Key farm state Senate Democrats are embracing the idea that the Obama administration should put its controversial water rule through another round of public comment -- a move that rule supporters say would be as good as killing it. During a hearing of the Senate Agriculture Committee yesterday, multiple Democrats raised concerns about the... -
EPA Avoids Taking Position on Disposal Legislation
Mar 25, 2015 | E&E Daily News
By Manuel Quiñones
U.S. EPA yesterday defended its new rule to address the disposal of coal combustion waste while avoiding taking a strong position on legislation to change it. The House Energy and Commerce Subcommittee on Environment and the Economy is scheduled to vote this morning on a bill that sponsors say would complement the agency's rule. -
Supreme Court Appears Split Over EPA Toxics Standards
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Division Seen in Supreme Court on Pollution Limits
Mar 25, 2015 | The New York Times
By Adam Liptak
The Supreme Court on Wednesday seemed closely divided over the fate of one of the Obama administration’s most ambitious environmental initiatives. The case concerns Environmental Protection Agency regulations adopted in 2012 that set limits on emissions of mercury and other toxic pollutants from coal-fired power plants. -
U.S. Justices Divided Over Challenge To Mercury Air Pollution Rule
Mar 25, 2015 | Reuters
By Lawrence Hurley
The U.S. Supreme Court appeared closely divided on Wednesday as it weighed whether the Obama administration had to consider costs before deciding whether to regulate emissions of mercury and other hazardous pollutants mainly from coal-fired power plants. Justice Anthony Kennedy could be a possible swing vote on the nine-justice... -
Delaware, 'Clean' Utilities Fault EPA's Air Rule Exemption For Generators
Mar 25, 2015 | InsideEPA
By Stuart Parker
Delaware and "clean" utilities that burn mostly low-emitting fuels such as natural gas are faulting EPA's decision to grant an exemption to diesel and other generators from having to meet some emissions limits in an engine air rule, urging an appellate court to scrap the 50-hour regulatory exemption for "non-emergency" use of the engines. -
(ACC Mentioned) Manufacturers, Agriculture And Energy Producers Call On Congress And The STB To Update Rail Policies
Mar 25, 2015 | PR Newswire
A large group of national trade associations representing manufacturers, farmers and energy producers today announced they have formed the Rail Customer Coalition. The Coalition is calling on Congress and the Surface Transportation Board (STB) to modernize the nation's freight rail polices to better serve shippers, their customers... -
Democrats Urge Funding to Address Crude-By-Rail Concerns
Mar 25, 2015 | E&E Daily News
By Sean Reilly
Thirty-seven House Democrats are asking leaders of an Appropriations transportation subpanel to approve the Obama administration's request for more than $300 million next year mainly aimed at preventing oil train derailments and improving emergency response. Congress must furnish enough money in fiscal 2016 "to keep our energy... -
Senate Dems Seek Stronger Oil Train Safety Rules
Mar 25, 2015 | The Hill - E2 Wire
By Timothy Cama
Senate Democrats have proposed a bill to set stronger safety rules for trains carrying oil, including regulating the content of the oil itself. Sens. Maria Cantwell (D-Wash.) and Tammy Baldwin (D-Wis.) said the most critical problem with the Department of Transportation’s (DOT) ongoing regulatory effort on oil trains is that it does not confront ... -
Financing Needs Eclipse Regulatory Premise of Subpanel Hearing
Mar 25, 2015 | E&E Daily News
By Sean Reilly
Though the hearing yesterday by a Senate Commerce, Science and Transportation subpanel was ostensibly about the promise of innovative transportation industry regulation, Sen. Roger Wicker (R-Miss.) and others appeared equally eager to talk about the dearth of transportation funding. "We're simply not meeting the needs," Wicker said. -
Trains, Trucks Must Communicate to Avoid Accidents -- Experts
Mar 25, 2015 | E&E - Greenwire
Transportation experts say plans by U.S. railroads to use a $9 billion high-tech system to stop train wrecks won't stop trains and trucks from crashing into each other unless the two industries communicate. Take, for example, the Amtrak train that hit a huge tractor-trailer in North Carolina this month, injuring 55 people. That accident has ...
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(ACC Mentioned) Senate Bill Proposes Label For Bpa-Containing Food Packaging
Mar 25, 2015 | Chemical Watch
Food packaging, containing bisphenol A (BPA), should carry a warning label, according to a bill introduced in the US Senate.
The BPA in Food Packaging Right to Know Act would require food packages to carry a label that reads: “This food packaging contains BPA, an endocrine disrupting chemical according to the National Institutes of Health.”
The measure, sponsored by senators Dianne Feinstein (Democrat-California) and Patrick Leahy (Democrat-Vermont), also directs the US Department of Health and Human Services to conduct a safety assessment of food containers, containing BPA, to determine if there is reasonable certainty that low-dose, long-term exposure will not cause negative health effects.
Alternatives to BPA would also be evaluated.
“Consumers deserve to know if the items they frequently purchase at the grocery store could expose them and their families to BPA,” said Ms Feinstein. “This straightforward bill would simply require packaging that contains BPA to be labelled, so consumers can make the best decisions for their families.”
“This bill is an incredible disservice to public health because it ignores expert analysis of unbiased government scientists around the globe concluding that BPA is safe,” said Steven Hentges of the American Chemistry Council's Polycarbonate/BPA Global Group.
The European Food Safety Authority (Efsa) (CW 22 January 2015) and the the US Food and Drug Administration (FDA) (CW 10 December 2014) have, he said, “clearly and unequivocally” stated that BPA is safe for use in food contact materials and other consumer products. “Within the past two weeks, similar organisations in Germany and New Zealand have joined others around the world and publicly declared that BPA is safe at current exposure levels.”
Kathleen Roberts, executive director of the North American Metal Packaging Alliance, said the bill is “inappropriate”, given the recent FDA finding that BPA in food contact materials posed no concerns. “We question why we would label something if the FDA has already determined it to be safe.”
“BPA is an endocrine disruptor that has no place in our food or food packaging,” said Sonya Lunder, senior analyst at the Environmental Working Group.
Ms Feinstein's bill would ensure “disclosure and safety measures are in place to better protect people from this dangerous chemical. It is unfortunate that the FDA is ignoring an enormous amount of scientific evidence that points out the dangers of BPA. Hundreds of independent scientists disagree with the agency, which persists in relying on flawed, outdated and inadequate methods for assessing the toxicity of hormone disruptors.”
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Ex-EPA Officials Back Bipartisan TSCA Reform Bill
Mar 25, 2015 | E&E Daily News
By Sam Pearson
A group of former top U.S. EPA legal officials who served in the past four administrations recently said they back a bipartisan chemical safety bill under consideration in Congress, offering a counterpoint to legal experts from many states who fear the impact of the proposed changes.
The lawyers sent a letter to leaders of the Senate Environment and Public Works Committee last week ahead of a panel hearing on the hotly debated S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act."
That bill is a "substantial and necessary improvement over the current Toxic Substances Control Act," the former officials wrote in the letter, which was made public yesterday by the Environmental Defense Fund. The legislation will give EPA "greater authority to address potentially risky chemical substances in commerce," they added.
Signatories to the letter included Scott Fulton, EPA's general counsel from 2009 to 2013; Marianne Horinko, an acting EPA administrator and assistant administrator of the Office of Solid Waste and Emergency Response during the George W. Bush administration; Roger Martella, a former EPA general counsel and Department of Justice Environment and Natural Resources Division attorney who served during the Clinton and Bush administrations; and Ronald Tempas, a former assistant attorney general at DOJ's Environment and Natural Resources Division during the Bush and Obama administrations.
The letter was also signed by former EPA General Counsel E. Donald Elliott, who represented the agency when it lost the famous Corrosion Proof Fittings case in 1990, in which a federal judge ruled that EPA could not ban asbestos. That case, like the current debate, centered on the definition of "unreasonable risk."
Under TSCA, EPA must prove that it has chosen the "least burdensome" option to reduce an "unreasonable risk" posed by a chemical substance. The law does not define what "unreasonable risk" means, but courts have interpreted it as a mandate to weigh the likeliness of harm occurring against the benefits of reducing exposure to a chemical. However, the agency has found it a difficult standard to meet, in part because the benefits can be difficult to quantify. In addition, the "least burdensome" requirement forces EPA to prioritize minimizing costs to industry above protecting the public health, critics say.
In the Corrosion Proof Fittings case, the 5th U.S. Circuit Court of Appeals ruled that EPA had not proved that asbestos exposure was an "unreasonable risk" because it did not weigh the benefits of asbestos, such as its ability to prevent the spread of fires in buildings. Ultimately, the ruling greatly limited EPA's authority and is considered a key reason why it has not attempted to ban a chemical since.
The Udall-Vitter bill would remove the "least burdensome" requirement but keep a variation of the "unreasonable risk" language. The bill would require EPA to ensure "without taking into consideration cost or other nonrisk factors, that no unreasonable risk of harm to health or the environment will result from exposure to a chemical substance under the conditions of use," either to the general public or to susceptible subpopulations identified as being at greater risk.
The former EPA officials' letter came in direct response to an earlier letter by public-interest group attorneys and legal scholars arguing that the safety standard in the pending bill was "deeply problematic." The groups had warned that the bill could result in legal ambiguities that ultimately would have to be decided by federal courts, which have a history of limiting EPA's authority under the existing TSCA law (E&E Daily, March 24).
Elliott and others wrote that the safety standard in the bill by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) could not be compared to how courts have interpreted the standard in TSCA because the provisions are different.
"While S. 697 incorporates the words 'unreasonable risk' as the new safety standard, it makes clear that 'unreasonable risk' as included in S. 697 is not to be interpreted as it has under the existing TSCA," the attorneys wrote, adding that similar risk language exists in other safety laws and has not seen the enforcement problems associated with TSCA.
Though opponents have noted that the Udall-Vitter bill requires a cost-benefit analysis when EPA decides what regulation to issue in order to address the risk of a chemical found to be harmful, the attorneys wrote that this "is a requirement applicable to federal rulemaking that has been in effect through executive orders for over 33 years."
EPA's current top attorneys have kept their views closely held on the legislation. At an Environment and Public Works hearing last week, Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, said EPA had not taken a position on the bill.
Lawmakers and staff are set to huddle together in the weeks ahead to mull over possible tweaks suggested at the hearing (E&E Daily, March 24).
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US Agency Extends Consultation on Chemical Exposure Review
Mar 25, 2015 | Chemical Watch
The US Occupational Safety and Health Administration is extending the comment period to 9 October on the proposed review of its approach to managing chemical exposure in the workplace (CW 10 October 2014) The original deadline was 8 April.
The agency will consider the update of permissible exposure limits (PELs) as well as examining other strategies that could be used to address workplace conditions, where workers are exposed to chemicals.
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EPA Proposes Rule for Collecting Health, Safety Data on Nanomaterials
Mar 25, 2015 | E&E - Greenwire
By Sam Pearson
U.S. EPA proposed today requiring companies to provide new disclosures of health and safety information on nanomaterials, in a previously unused application of the Toxic Substances Control Act of 1976.
The proposed rule would require companies to provide, on a one-time basis, exposure and health and safety information on nanoscale materials, which are generally classified as having chemical structures 800 to 1,000 times smaller than the width of a human hair.
Information requested by EPA includes chemical identities, production volume, how the chemicals are made -- including processing, use, exposure and release information -- and available health and safety data held by industry firms.
Though EPA said it had not made any determination regarding the safety of nanomaterials, it needed to use its legal authorities under TSCA to learn more about how the chemicals work.
"Nanotechnology holds great promise for improving products, from TVs and vehicles to batteries and solar panels," Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, said in a statement. "We want to continue to facilitate the trend toward this important technology. Today's action will ensure that EPA also has information on nano-sized versions of chemicals that are already in the marketplace."
The agency said the action was necessary because nanoscale materials can have chemical properties different from traditional compounds. Their growing use in consumer products as a way to miniaturize popular technologies shows the need to examine "new questions, such as whether the material in the smaller form may present increased hazards to humans and the environment," the proposed rule said.
The agency noted that in 2009, the National Institute of Occupational Safety and Health found that nanomaterials may enter the body's respiratory system, be absorbed through the skin or be ingested, and some animal studies had shown that because nanomaterials are so small they can sometimes be more potent than larger particles that have been found to cause health problems.
The proposed rule will be subject to a 90-day public comment period.
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PEER, Parents Sue Over PCB School Cleanup
Mar 25, 2015 | E&E - Greenwire
By Sam Pearson
A Washington, D.C.-based environmental group and a group of California parents have sued a Los Angeles-area school district over what they say is a lax cleanup of toxic chemicals.
Public Employees for Environmental Responsibility and a group of Malibu, Calif., parents called America Unites for Kids -- formerly named Malibu Unites -- filed suit against the Santa Monica-Malibu Unified School District yesterday at the U.S. District Court for the Central District of California in Los Angeles, the groups said.
The filing is the latest development in a nearly 18-month dispute over the presence of polychlorinated biphenyls, or PCBs, at two school campuses.
Essentially, the suit is a dispute over whether environmental monitoring tests performed by the school district were accurate, complete and reliable.
PCBs were the only chemical specifically banned in the Toxic Substances Control Act of 1976 and are common in older school buildings. Scientists believe PCBs cause cancer, and under TSCA, PCBs are banned from use at concentrations greater than 50 parts per million unless they are fully enclosed.
The district has maintained that air and dust-wipe tests have not shown elevated levels of exposure to PCBs, but the advocacy groups contend the school system must do more to ensure students' safety by removing additional caulk at two schools, Malibu High School and Juan Cabrillo Elementary School.
The groups are seeking a court order that additional caulk be immediately removed and that they receive permission to enter the school buildings to test additional building materials "to determine whether additional illegal levels of PCBs exist in those materials."
PEER also filed a notice of intent to sue U.S. EPA over the Malibu PCB dispute last year but has not sued the agency yet (Greenwire, Aug. 20, 2014).
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Chemicals Remain Key Product Risk in EU
Mar 25, 2015 | Chemical Watch
By Carmen Paun
The presence of hazardous chemicals in products such as toys, clothing and textile and childcare articles remains a key reason for products being withdrawn or stopped from reaching the EU market.
According to the 2014 report of the EU’s Rapid Alert System for dangerous non-food products (Rapex), presented by the European Commission this week, a quarter of the notifications of dangerous products made by member state authorities, last year, were due to risks related to chemicals.
This was a slight increase from 2013, when chemical risks were the reason for a fifth of the Rapex notifications.
The most commonly notified in 2014 include the presence of the skin sensitiser chromium VI in shoes and leather articles, the use of phthalate plasticisers in toys and childcare articles and the use of harmful heavy metals in jewellery, said the Commission.
Other risks include electric shock, strangulation, injury and choking. For product risks in general, toys were mainly notified (28%), followed by clothing, textile and fashion items (23%).
Two thirds of the products notified as dangerous came from China - a proportion reflecting the country's share of EU imports.
The EU justice and consumers commissioner, Vera Jourova, told Chemical Watch she hopes the adoption of a revised product safety and market surveillance package will ensure stricter enforcement of EU rules, regarding chemicals in products. The proposed regulations are being discussed by the European Parliament and Council of Ministers.
Consumer issues NGO Beuc says the council is stalling on the proposals. “EU governments have done us a disservice by parking the long-needed product safety law update,” said its director general, Monique Goyens.
“This review is crucial in order to help safety supervisors cope with their important task of keeping faulty products off our shelves,” she said.
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Echa Publishes First Annual Report on SVHC Roadmap
Mar 25, 2015 | Chemical Watch
By Geraint Roberts
The efforts of Echa and EU member states to identify relevant substances of very high concern (SVHCs), identified and included in the REACH candidate list by 2020, will focus more on newly identified potential substances of concern and less on known carcinogens, mutagens and reprotoxicants (CMRs).
Details of this work are given in Echa’s first annual report on the implementation of the SVHC roadmap developed by the agency, member states and European Commission, and the risk management measures which are used to address the substances.
The report has three sections: part one summarises the activities conducted between February 2013, when the roadmap was adopted, and the end of 2014; part two gives details of activities planned for 2015; and the last section reports on the risk management measures – authorisation, restriction, and harmonised classification and labelling (CLH).
Part one provides information about the different types of substances, such as CMRs, sensitisers and endocrine disruptors which are subject to screening, assessment and risk management option analysis (RMOA).
Screening: Echa established a common screening approach to help identify potential substances for CLH, authorisation, restriction or the Community Rolling Action Plan (Corap) for substance evaluation, and to minimise the risk of the same substance being subject to more than one of these processes (CW 30 October 2014).
The first common screening round led to 351 substances being listed for manual screening. Of these, 195 were identified as Corap candidates and 52 were provisionally identified as possible SVHCs.
Most of the known category 1A/1B CMRs, known endocrine disruptors or substances that are persistent, bioaccumulative and toxic (PBTs) or very persistent and very bioaccumulative (vPvBs) had already been considered by member states. Therefore, says the report, further information or harmonised classification will probably be needed for most of the potential new SVHCs before they are proposed as such.
The results of the common screening are “encouraging”, says the report, because there will be a follow-up evaluation or risk management action for most of the substances selected for manual screening. There are also many substances, which the common screening flagged for compliance checks of the registration dossiers, and which the agency had already identified as needing such a check.
A network of member states to support screening, related to use and exposure information, was established at the end of last year.
Assessment: this covers substance evaluations conducted under the Corap and work undertaken by Echa’s PBT and endocrine disruptor expert groups. By contrast, the agency’s CMR and sensitiser coordination groups provide support at the manual screening stage on deciding the best way forward.
In total, 213 substances are being assessed, comprising 137 PBTs, 70 CMRs, 29 endocrine disruptors and 27 sensitisers (a substance can qualify for more than one concern). So far, 24 assessments of PBT/vPvBs have been completed, or which five are deemed to meet the criteria. None of the endocrine disruptor assessments have yet been finished.
RMOA: conducted by a member state or Echa, an RMOA assesses whether a substance is a relevant SVHC and declares whether no regulatory action is required, or whether a particular risk management option should be pursued. Listed in the public activities coordination tool (PACT) on the agency’s website, they only reflect the views of the author authority, and do not stop other member states or the Commission from initiating risk management measures which they believe are needed.
By the end of 2014, 24 RMOAs had been finished (mostly for CMRs or sensitisers) and 74 were ongoing (31 for CMRs). Of the completed 24, 11 proposed restriction, five said the substance was an SVHC and should, therefore, be added to the candidate list and five said no further action was necessary.
Since 2009, Echa has received 164 CLH proposals; of which 90 were for active substances in pesticides or biocides. Of the remaining 74, 33 were proposed as category 1A/1B CMRs.
There are now 161 substances on the candidate list; of which 127 are identified as CMRs only, eight as CMRs and vPvBs, 12 as PBT/vPvBs, five as endocrine disruptors, three as CMRs and respiratory sensitisers and six as CMRs and as having specific target organ toxicity (Stot).
Echa’s most recent (fifth) list of SVHCs, recommended for inclusion in the authorisation list (Annex XIV), was sent to the Commission, which has still not responded because it wants to introduce changes to the authorisation process first (CW 11 February 2015). The agency’s sixth recommendation, says the report, is due to be sent to the Commission in July.
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Maryland Lawmakers Pass Fracking Moratorium
Mar 25, 2015 | The Hill - E2 Wire
By Timothy Cama
Maryland’s House of Delegates passed a bill that would put a three-year moratorium on hydraulic fracturing in the state.
Tuesday also saw Maryland’s Senate pass a bill that would hold any companies fracking in the future to strict standards, labeling the practice “an ultrahazardous and abnormally dangerous activity,” the Baltimore Sun reports.
Each chamber would have to pass the other’s bill in order for them to move forward, and they both face uncertainty on the desk of Gov. Larry Hogan (R) who supports fracking in the economically depressed western portion of Maryland.
Former Gov. Martin O’Malley (D) put the state under an effective fracking moratorium to study the issue, and it remains in place, despite the desires of western Maryland to take advantage of the Marcellus shale play.
“This bill is about ... when there are problems, when there's contamination, when someone is injured, who pays,” said Sen. Bobby Zirkin (D), the sponsor of the Senate bill, according to the Sun.
Zirkin’s bill would make frackers responsible for all contamination and environmental problems, even if they follow the regulations. They would also have to have $10 million in insurance.
Western Maryland lawmakers criticized the measures, with one saying that the legislature is “putting the cart before the horse,” and another saying it’s an inherently local issue, the Sun said.
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House Subcommittee Postpones Markup of Export Bill
Mar 25, 2015 | E&E - Greenwire
By Nick Juliano
A House subcommittee is postponing plans to mark up legislation that would lift the ban on crude oil exports.
The Foreign Affairs Subcommittee on Terrorism, Nonproliferation and Trade will be holding a hearing on the issue later this year, and a markup will follow, said Shaylyn Hynes, a spokeswoman for Rep. Ted Poe (R-Texas), who chairs the subcommittee. Poe is a co-sponsor of H.R. 702, the bill that was to have been marked up today.
Fellow Texas Republican Rep. Joe Barton, chairman emeritus of the Energy and Commerce Committee, introduced the bill earlier this year, and an E&C subcommittee held a hearing on it last month (E&E Daily, Feb. 4).
The ban on crude exports was implemented in response to the oil shocks of the 1970s, but U.S. producers have mounted an aggressive campaign to eliminate it in light of fast-rising domestic crude supplies. Efforts to lift the ban face resistance from oil refiners, labor unions and environmental groups, among others.
While congressional action to lift the ban is not expected in the immediate future, the Obama administration has been exploring modest moves using its existing authority to allow exports of condensate -- a type of lightly processed crude.
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For Towns Fighting Drilling, The Bills Are As High As The Stakes
Mar 25, 2015 | E&E - Energywire
By Krysti Shallenberger
Mora County, N.M., marched into the hydraulic fracturing fray when its county commissioners passed an ordinance in 2013 banning the production method.
But now in the wake of a federal judge striking down their ban in January, the sparsely populated -- and poor -- county must pay the fiddler to the tune of possibly hundreds of thousands of dollars in attorneys fees and court costs if the judge rules that Mora County must cover both the county fees and those of the Royal Dutch Shell subsidiary SWEPI LP which filed the suit. And possibly face municipal bankruptcy.
"Our county is a relatively poor county, and we have a relatively small tax base compared to other [New Mexico] counties," said county Commissioner Paula Garcia.
With roughly $1 million in the county's operating budget and $484,800 stashed in reserves, Garcia said they don't know how they will try to pay those potential costs but are "keeping their options open."
Mora County is just one county among many in several states figuring out where -- and where not -- to allow energy industry access to shale resource reserves, and, while different factors play into legal costs facing municipalities and counties, many of its problems are familiar when it comes to court costs. 'Pay the fiddler'
John Smith, a Pennsylvania-based lawyer who was an attorney on the Keystone State's landmark case Robinson Township v. Commonwealth of Pennsylvania that challenged the state's drilling law (Act 13), understands intimately the court costs facing communities that try to take on energy giants.
The town that first sparked the suit, Robinson, has 13,000 residents, according to U.S. Census 2010 data, with an operating budget of roughly $400,000, Smith said -- not enough to fund its way through this fight.
So Smith's law firm, Smith Butz LLC, took on the case pro bono and managed to work its way to the state's Supreme Court, which ruled in their favor in 2013 (EnergyWire, Dec. 20, 2013).
That's not something every county or municipality should expect when navigating hydraulic fracturing or energy production regulations on a local basis, he said.
"The industry doesn't use cheap lawyers," Smith said. "They could easily exceed the limit and bankrupt the town, and if you are an industry, are you going to an area that will fight you? Or are you going into an area that can't?"
The answer varies among counties and municipalities.
Take Longmont, Colo., whose City Council pushed an update to their oil and gas regulations on top of a fracking restriction that won approval as a ballot initiative by Longmont residents.
The Colorado Oil and Gas Conservation Commission and then the Colorado Oil and Gas Association promptly filed a complaint against those regulations that was later dropped in a political compromise, said Rigo Leal, spokesman for Longmont.
But still, the city faces another lawsuit against the citizen-led fracking restriction that was brought by oil and companies, as well as the state agency. A district court ruled in favor of the state and industry, but the city of Longmont appealed; that appeal is ongoing.
Court costs for the city have climbed to $136,000 so far, Leal said. But with an operating budget of $273.1 million for its adopted 2015 budget, Longmont could be one of the few municipalities that can weather a lengthy appeals process.
Then, there's San Benito County in California.
The county established a ban on hydraulic fracking and steam injection through a ballot initiative called Measure J (EnergyWire, March 4), which in turn led to Citadel Exploration Inc. filing suit earlier in March.
Just last week, San Benito's Board of Supervisors approved some $36,000 for the county counsel to move ahead with the lawsuit and pay law firm Cota Cole LLP.
In its 2013-14 recommended budget, the county can boast roughly $136 million to cover all of its budgetary needs. However, Barbara Thompson, assistant county counsel, declined to comment on the case because of pending litigation.
In its suit, Citadel requested $1.2 billion in compensation. Prepping for the worst
Municipal bankruptcy is every town and county official's nightmare.
Smith said costs inevitably pop up when a county or municipality approaches him to talk about their legal options regarding fracking.
"Local governments are making decisions at the local level that would affect hundreds of millions of dollars," Smith said. "If you deny a drill site and the right to make money, you could be denying an industry the ability to make millions of dollars."
But, on the flip side, Smith said, these decisions could damage citizens' property values and health. The intense pressures coupled with the potential legal costs often repel municipalities and counties.
Ben Price, the national community organizer for the Community Legal Environmental Defense Fund -- the organization responsible for crafting Mora County's 2013 ordinance -- said legal costs are brought up during discussions with citizens, municipalities and counties who have sought their advice to craft measures, initiatives, and ordinances restricting or outright banning the production method.
"We talk about that up front," Price said. "It's up to the community to decide what's most important."
CELDF's Executive Director Tom Linzey previously told EnergyWire that the first advice he dishes out to interested towns and counties is that they must be prepared to accept municipal bankruptcy as a worst-case scenario.
"If you can't stomach that, and you don't believe enough in your right to decide at the community level, then you shouldn't put your toe in this stuff," he said in the article. "Because it's going against everything" (EnergyWire, Jan. 22). Moving forward
Susie Beiersdorfer, a community organizer leading Youngstown, Ohio, citizens for a fracking ban (also advised by CELDF), said a possible lawsuit never entered the picture.
"If we need money, we'll fundraise," Beiersdorfer said, who added that CELDF agreed on the payment of $1 to represent them if they became embroiled in a suit. However, their fracking ban, known as a community bill of rights, has been shot down four times by voters (EnergyWire, March 10, 2014), never opening a door to a lawsuit.
Both Smith and Stephen Ross, a New Mexico attorney who helped craft Santa Fe's restrictions on oil and gas within the city, said how a town or county limits fracking can factor into costs.
For example, Mora County's ordinance was an outright ban whereas Robinson and Longmont focused on using already-established zoning and state regulations woven into their regulations.
Ross, who was brought in initially as a consultant to Mora County, said he advised the commissioners against a complete ban, but "they didn't do a thing I told them to do."
He added that Mora County's lack of local zoning severely limited their options when trying to restrict fracking.
"It's like fighting with one hand tied behind your back," Ross said. As of March 20, no decision has been made regarding how the attorneys' fees will be paid in Mora County.
For Longmont, the picture is a little brighter. Leal wrote in an email to EnergyWire that the city has pledged to "keep fighting" as long as they have options to appeal.
"The city always knew this was going to be expensive in terms of dollars and resources, [but] the city council has told the city manager to defend this case until there's a decision," Leal wrote.
Smith described these issues as "terribly divisive" among communities, and when it comes down to money, "there's a lot of dynamics that are going on. No position is easy."
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Cap and Trade Had No 'Discernible Impact' On Gas Prices -- Oil Rep
Mar 25, 2015 | E&E - Greenwire
By Anne C. Mulkern
California gasoline prices didn't jump when the state's cap-and-trade program first expanded to include motor fuels because oil sellers continued making healthy profits, an oil business representative said yesterday.
Oil distributors in January were able to eat most costs associated with fuels falling under the carbon emissions cap, Jay McKeeman, a vice president at California Independent Oil Marketers Association (CIOMA), told a joint hearing of the state Senate Energy, Utilities and Communications Committee and Transportation and Housing Committee.
"If you look at fuel prices as of Jan. 1 -- between Jan. 1 and through the middle, later part of January -- you would expect to see a 10-cents-a-gallon increase because that's basically what the fuels under the cap assessment is on gasoline," McKeeman said. But "you don't see it."
"A lot of that has to do with the fact that margins were pretty thick right then, there was the ability for wholesalers, retailers and producers to absorb some of that assessment, that 10 cents [for gasoline], 13 cents a gallon for diesel," he added.
It wasn't until an oil refinery explosion and outage in February, followed by a planned switch over to summer gasoline, that petroleum businesses raised prices significantly, McKeeman said. When that occurred, he said, the cost of having fuels under the cap was added to pump prices.
The joint committee hearing focused on state fuel price volatility after pump prices jumped about 41 cents in February from the month before. Prices have fallen back somewhat to an average of $3.26 per gallon yesterday, according to AAA's Fuel Gauge Report.
The hearing also marked one of the first times that the state Senate has taken a look at fuel prices since cap and trade expanded to include motor fuels. The program, aimed at cutting emissions of greenhouse gases, auctions environmental permits to businesses, including distributors of motor fuels. They must submit allowances for carbon pollution tied to all in-state gasoline and diesel sales. Those are estimated at 17 billion gallons annually.
Fuels represent about 40 percent of California's greenhouse gas emissions, the largest single sector.
Oil companies for at least a year fought adding fuels to cap and trade, dubbing it the "gas tax." Oil groups and their supporters said it would push up pump prices at least 10 cents per gallon, with spikes of 75 cents per gallon possible.
Efforts to change the carbon program continue. Assemblyman Jim Patterson (R) has offered A.B. 23, legislation that would have retroactively exempted motor fuels from cap and trade. On Monday, the Assembly Natural Resources Committee voted 6-3 against passing the bill (ClimateWire, March 24).
At the start of yesterday's hearing, in explaining why California's gas prices are the highest in the continental United States, Gordon Schremp, senior fuels specialist at the California Energy Commission, said the state has higher fuel taxes. Another 10 cents since the start of the year was due to cap and trade, he said.
McKeeman's comment on cap and trade to the contrary appeared to surprise at least one senator at the hearing.
"That's a revolutionary comment, can you say that again, in terms of the cap not having an impact on price?" asked Sen. Ben Hueso (D), chairman of the Energy, Utilities and Communications Committee.
McKeeman clarified that "it didn't have a discernible impact on price. Because people were making a fair amount on fuel all up and down the line, you could absorb some of that cost. But once margins thinned, that whole cost gets put into the fuel." Fuel island
McKeeman and others on the panel said that one of the biggest drivers of the state's gas price spikes is California's unique fuel formula, which is cleaner burning.
When refinery outages happen, fuel must be brought in by ships, and it can take a week or more.
Some who testified argued that refineries needed to keep more surplus fuel on hand. The average fuel supply inventory in the United States is 18.7 days, while in California it's 10.7 days, said Jamie Court, president of Consumer Watchdog.
"We have a week less of refined supply on hand. And that is what's causing the problem," Court said. "We can't stop the refinery outages. We can't stop the refinery fire. But we can have an ample cushion.
"This system's made to break," Court added. "The oil companies keep it running on empty. And when it breaks, you see a price spike."
Philip Verleger, an oil economist and consultant to the trade group Western States Petroleum Association, said that requiring companies to keep fuel stocks on hand doesn't always work as intended.
Some European countries mandate that companies hold inventories, he said.
In 2011, when Libya collapsed, both the United States and Europe released fuel from strategic reserves. European authorities then told companies they could reduce their mandated stock levels, but the businesses instead kept stock levels stable. They knew prices were headed up and that they later would have to replace used reserve amounts, "so they didn't use them," Verleger said.
"So asking companies to hold stock doesn't necessarily do anything," Verleger added. Commerce Clause conflict?
As well, Verleger said, California requiring oil companies to hold supplies might be in conflict with the U.S. Constitution, because many companies also sell their reformulated fuel to other nearby states.
Kathleen Foote, antitrust chief with the California Attorney General's Antitrust Law Section, agreed that it might violate the Commerce Clause, which gives Congress authority over interstate business.
Court argued that lawmakers should more closely regulate refineries, or lacking the will to do so, he said, they should require more information on inventories to be publicly disclosed.
"Particularly as we're having this debate about increasing our greenhouse gas reduction standards and oil companies are saying it's going to cost consumers 75 cents" more per gallon, Court said, "it's absolutely time to ask them questions."
State Sen. Fran Pavley (D), who authored the state's climate law, A.B. 32, said during the hearing that one key to keeping prices down was more competition for fossil fuels.
"In the future, we shouldn't have just gas stations, we should have fueling stations," Pavley said. "We should have a lot of electric cars. Don't let [oil companies] control our economy like this."
Using proceeds from cap and trade to accelerate investments in biofuels, Pavley said, "may be part of the solution."
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Calif. Governor Attacks McConnell, Cruz Over Climate Positions
Mar 25, 2015 | E&E - Climatewire
California Gov. Jerry Brown (D) used the extreme drought in his state to criticize the position of GOP leaders on climate change at a press event this weekend.
At the event, Brown called Senate Majority Leader Mitch McConnell (R-Ky.) borderline "immoral" for attempting to undermine the federal directive to reduce emissions from existing power plants in the United States.
"You can't just sit around and engage in rhetoric because some of your donors and your constituents are saying, 'Well, we want to make a profit,'" Brown said of McConnell. "The coal companies are not as important as the people of America and the people of the world."
The governor also criticized Sen. Ted Cruz (R-Texas), saying, "That man betokens such a level of ignorance and a direct falsification of existing scientific data, it's shocking. And I think that man has rendered himself absolutely unfit to be running for office."
California has entered its fourth year of drought, and water supply is short in the state. Last week, the governor announced a $1 billion drought relief package. "We have to up our game to be more efficient, and if the drought continues, we're going to have to be incredibly innovative to keep our current lifestyle," he said (Daniel Wood, Christian Science Monitor, March 23).
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Democrats, Greens Call McConnell Maneuver 'Another Affront To The Presidency'
Mar 25, 2015 | E&E Daily News
By Daniel Bush
Democrats and green groups are still fuming at Senate Majority Leader Mitch McConnell's latest campaign against U.S. EPA's power plant rules.
Critics say the Kentucky Republican's op-ed earlier this month urging states to ignore the pending rules, which will slash carbon emissions in the power sector, marked a new low point in the GOP's long-running efforts to block the Obama administration's climate change policies.
McConnell yesterday sponsored an amendment to the budget bill under debate in the Senate that would allow states to not comply with the existing power plant carbon rule and prevent EPA from imposing a federal implementation plan if the state claims the rule will create a hardship (E&ENews PM, March 24).
"I was surprised at his audacity in encouraging states not to comply with a [proposed] federal law," said Liz Perera, Sierra Club's climate policy director, in an interview.
If the roles were reversed and a Democratic leader told states to ignore rules proposed under a Republican president, Perera said, "it's definitely something the GOP would be crying out about."
Others said McConnell's move was a slap in the face to EPA and President Obama.
"This act is yet another affront to the presidency," said Phil Radford, the former director of U.S. Greenpeace, in an email. The op-ed is an effort to "protect an industry -- Big Coal -- that has killed too many Americans," he added.
Under the rule, states are required to submit plans next year detailing how they will meet short- and long-term emissions targets set by EPA. The rule is the centerpiece of Obama's domestic climate change agenda.
But in his op-ed, which appeared in the Lexington Herald-Leader earlier this month, McConnell wrote that the "legal basis for this regulation is flimsy at best" and advised states to ignore it while Republicans develop a legislative strategy to kill the rule.
"Hold back on the costly process of complying. A better outcome may yet be possible," McConnell wrote.
Since then, criticism of McConnell, a longtime ally of the coal industry who has led the GOP's opposition to Obama's climate agenda, has streamed in from the White House and its allies on and off Capitol Hill.
White House senior adviser Brian Deese last week accused McConnell of "going way outside the bounds" of his office by wading into state regulatory policy (Greenwire, March 20). And Democratic lawmakers in recent days said they'll continue to highlight the issue to rally support for the power plant rules.
"As a practical matter, [McConnell's op-ed] is unlikely to hold sway with governors, and it certainly won't hold sway with regulators," Sen. Brian Schatz (D-Hawaii) said in a brief interview.
Even so, Schatz said, Democrats have to be ready to defend the rule. Republicans are "going to pursue a strategy at all levels" to fight the measure, he added.
Republicans, for their part, have ignored the left's uproar over the op-ed and praised McConnell for crystallizing the party's position on the EPA regulations.
"He has some strong feelings" on the matter, Sen. Richard Shelby of Alabama said of McConnell. The op-ed "was probably helpful."
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Push For Déjà Vu Climate Votes Raises Some Eyebrows
Mar 25, 2015 | E&E Daily News
By Nick Juliano
The bloc of Senate Democrats most concerned about climate change is angling for a new round of votes this week aimed at calling out Republicans who dismiss its link to human activity.
The effort will look very familiar -- senators took a half-dozen votes in January on climate science -- and the approach being eyed for this week's consideration of the budget resolution is raising eyebrows even among some potential allies.
"We already had a vote on Keystone, so we've already had those votes," Sen. Ben Cardin (D-Md.) said, referring to a series of amendments offered to a bill that would approve the Keystone XL pipeline. "I don't know we gain much by just repeating those votes."
Republicans are planning their own suite of amendments that would block or rein in various Obama administration rules, including U.S. EPA's plan to regulate emissions from new and existing power plants.
Majority Leader Mitch McConnell of Kentucky and other Republicans this week offered an amendment that would let states opt out of submitting their own emissions-reduction proposals as part of the Clean Power Plan (E&ENews PM, March 24).
Several other regulations also are likely to be targeted, including EPA's proposed regulation to clarify the Clean Water Act's jurisdiction, which is the subject of an amendment from Sen. John Barrasso (R-Wyo.), and the Bureau of Land Management's just-finalized rule governing hydraulic fracturing on public lands, which would be undone by an amendment that Sens. Orrin Hatch (R-Utah) and James Inhofe (R-Okla.) introduced yesterday.
Among the budget amendments currently pending -- meaning they are likely to see votes -- are two related to public lands and species protection.
Republican Sen. Steven Daines introduced an amendment related to the designation of national monuments. The Montana freshman secured a vote on a similar amendment requiring approval from state officials before monuments are designated, but it fell short of the 60 votes it needed to be added to the Keystone XL approval bill.
Republican Sens. Mike Rounds, a South Dakota freshman, and Inhofe, who chairs the Environment and Public Works Committee, also have an amendment currently pending. It would bar EPA and the Fish and Wildlife Service from entering into "closed door" settlements, an apparent reference to various legal agreements between environmental groups and the Obama administration that have led to new regulatory efforts and drawn conservatives' ire.
None of the amendments is binding, like the budget resolution itself. But the votes can help to clarify where senators stand on controversial issues or provide fodder for campaign-season attack ads.
Democrats also plan to offer side-by-side amendments on their alternative view on rules related to power plant emissions, oil and gas fracking, water quality and other issues Republicans are expected to bring up, Cardin said. He added that several colleagues are adamant about another round of climate change votes, predicting "a variation of what you saw on Keystone."
Sen. Sheldon Whitehouse (D-R.I.), who is leading the climate amendment effort, said details are still being finalized but that he is not overly concerned about avoiding déjà vu.
"I'm not sure exactly how it's going to pan out, but concern about variety is not necessarily at the apex of our worries," Whitehouse said.
During the KXL debate, Whitehouse introduced language positing that climate change is not a "hoax" in an amendment that all Republican senators except one rushed to support when they realized it said nothing about a link to human activity. Later, just five Republicans voted for an amendment proclaiming a significant link between human activity and climate change, while an additional 10 allowed for at least some linkage and the majority of the party maintained that the two issues were disconnected.
Sen. Barbara Boxer (D-Calif.) said continued votes would build momentum for the proposition that climate change is "real and that we have to do something about it and that it has real consequences" and that numerous budget amendments had been drafted this week.
"Every time we have votes, we do better and better," said Boxer, the top Democrat on the Environment and Public Works Committee. "We're winning people over to our side; we'll continue to do this."
Still, some senators say Democrats may do themselves a disservice with continued trips to this politically charged well.
"It's not constructive, let's put it that way, because we already know where everybody stands," said Sen. Joe Manchin (D-W.Va.), who voted for all of the Democrats' pro-climate amendments on KXL but maintains strong support for the coal industry and opposes EPA's climate rules. "I'm just trying to look for a solution, that's all, and the solution is going to be technology."
The amendment push is "just political theater" designed to rile up the base, said Sen. Lindsey Graham (R-S.C.), who once worked on bipartisan climate legislation and voted for an amendment acknowledging that human activity significantly affects climate.
To be fair, "political theater" can accurately describe plenty of votes that will happen this week, as the Senate continues debate over its fiscal 2016 budget. Consideration of the nonbinding resolution provides the Senate an opportunity for a freewheeling amendment debate that tends to touch on myriad hot-button issues.
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Public Power's Ditto Pushes Legislative Fix To Ferc's Power Plan Role, Federal Agency Moves
Mar 25, 2015 | E&E TV
What role should the federal government play in guiding the electric power sector's evolution? During today's OnPoint, Joy Ditto, senior vice president for legislative and political affairs at the American Public Power Association, discusses the regulatory and market factors at play in the transformation of utilities. She also weighs in on transmission and infrastructure challenges that could face public power under the Clean Power Plan. Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Joy Ditto, senior vice president for legislative and political affairs at the American Public Power Association. Joy, thank you for coming on the show.
Joy Ditto: Thank you so much for having me, Monica.
Monica Trauzzi: Joy, as electric utilities transform their business models to accommodate new consumer demands, abundant natural gas supplies and the cost competitiveness of renewables as well, what do you see as the role of the federal government in sort of helping guide that transition?
Joy Ditto: Well, I think the role of the federal government is relatively narrow, particularly -- well, first of all, for APPA members who are consumer-owned, locally owned electric utilities. They're not-for-profit. They are governed at the local level by elected or appointed officials, and so the role for them is -- it's very narrow in terms of what the federal government can and should do in terms of encouraging local entities like ours to do certain things to transition to this new world. However, I think there are some things that the federal government can do in a very positive way to incentivize utilities across the country to invest in renewables, invest in new technologies. So research and development is one of those things that is, I think, a very important piece of what the government can do, and we've seen some very important things come out of the government in recent years. Storage is a huge issue, particularly to incorporate more variable renewables, and I think that's one area that the federal government can definitely play a great role. So that's one role there. Other types of incentives perhaps would be helpful. Grants, for example, like for smart grid technologies, deployment of those types of initiatives would be a good way that the federal government could play a role.
Monica Trauzzi: And a key part of the discussion is the role of natural gas, and we see many utilities making investments in natural gas because it's simply better economics than sticking with coal, but you believe that there's too much of an emphasis placed on natural gas in EPA's Clean Power Plan. If utilities are already going in that direction, isn't the regulation just in line with what the market's already doing?
Joy Ditto: Well, the regulation goes well beyond sort of the market's role, as I think you know. There's a -- there are mandates, and they're related to sort of deployment of renewables outside of your state. Can you count those toward the targets and timetables under the Clean Power Plan? That's certainly outside of sort of just letting the market do what it will with regard to natural gas. So I mean, there are a number of features. Also, the timelines are very aggressive. There are four building blocks, one of which is natural gas, but another one is renewables, for example. So, no, I think it does go beyond just letting sort of the marketplace dictate where utilities are investing.
Monica Trauzzi: And you've recommended that EPA give states more discretion in implementing the final rule. One of the key elements of the proposal is state flexibility, so what do you mean by discretion, and kind of what additional flexibility are you looking for?
Joy Ditto: Well, I think there is a little bit of flexibility with regard to the state can propose a plan, but the targets and timelines are hard. There's not any flexibility with regard to that, at least right now. We're proposing such flexibility, but there isn't now. So really, the federal government has come in and said this is what you have to do and given some pretty strong parameters about what -- even what wiggle room states have with regard to meeting those targets and timelines. So there's a little bit of flexibility. I wouldn't say the states have a lot of flexibility under this plan, and I think they need a lot more to be able to make it affordable for our members who are in small communities across the country and providing electricity on a not-for-profit basis. That -- any additional costs are going to flow directly to our customers, so we'll feel that. We also are in a position where we may be stranding some of our investments that have been made, you know, in recent years. Very clean coal technologies, other types of technologies, other investments we've made. We may have to say we cannot continue to use power from those generating facilities, which means that our customers have to absorb the remaining capital cost of that facility in addition to investing in new types of facilities. So we -- and we may not have a choice under the Clean Power Plan with regard to certain facilities.
Monica Trauzzi: Behind the scenes, are you concerned with the potential jurisdictional challenges that might exist between FERC and EPA on the power plan?
Joy Ditto: I think, you know, what we would like to see, frankly, is a bigger role for FERC in this regard, and I say that because, you know, we sometimes have concerns about FERC overreach in certain areas, but in this regard, honestly, FERC is the expert on reliability, and they work with the North American Electric Reliability Corp., as you know, in terms of discerning what reliability impacts there are on the system on an ongoing basis, not just under regulatory approaches, but just in general. So we would really like to see a greater role for FERC going forward. What that might mean for the current plan, I'm not so sure. There have been some, you know, FERC has taken a look at some of the issues related to the Clean Power Plan most recently and are continuing to do so, which we're very heartened by. On the other hand, we may need to see a legislative approach that actually brings FERC into the process early on. For example, any kind of proposed rule, whether it be under EPA or another federal agency like the Surface Transportation Board or the U.S. Army Corps of Engineers. If they're proposing something that could impact electric reliability, FERC may need to review that and say, "This could have a real liability impact," and maybe report to Congress on that before a rule goes final so that there is some awareness of or understanding of the reliability -- the potential reliability impacts of a proposed rule from the federal government.
Monica Trauzzi: And do you think that there are legs in Congress to pass such a legislative fix?
Joy Ditto: You know, we are certainly, I think, that concept is being floated and, as you know, there are a couple of energy bills that are going to start moving here soon in both the House and Senate, and I think it's certainly something that could be included in such an energy bill, so we certainly be looking in a supportive way at provisions like that.
Monica Trauzzi: We're hearing many conversations in support of a reliability safety valve and how that could minimize the potential for reliability issues with the Power Plan. How do you think that mechanism should or could be structured?
Joy Ditto: Yeah, you know, that is -- there are several different ways, and frankly that is not necessarily where I've been putting my emphasis. The regulatory folks have been looking at that, and my expertise is more on what Congress is looking at. I know that there are a variety of ways that we've ... off ramps and, you know, over the years when we've looked at this issue before. I think we are open as APPA to looking at what a safety valve -- what kind of safety valve would be workable for our members, and I think you'll see us supporting such a safety valve when we sort of home in on what those particulars are. And that's a little different than what I just described, right. So the safety valve would relate to sort of the current plan, and if there were major reliability impacts, and you again would have a pause or an offramp or however the specifics are structured. What I was speaking about before really would be for sort of future regulatory actions for really any agency. So you could even have -- you could see both be included in either an energy bill or a bill devoted to the Clean Power Plan or recommendations to EPA, and I think we'll sort of be doing all of the above as APPA.
Monica Trauzzi: One final question here. Sort of the other piece of the puzzle is transmission and infrastructure and some of the challenges that are there. What challenges exist for your members on transmission and infrastructure, particularly if the Clean Power Plan is enacted?
Joy Ditto: Yeah. I think there are several sort of issues with regard to infrastructure. One being natural gas pipeline. You mentioned earlier that natural gas is being used more and more, both from a marketplace standpoint, but also we'll be pushed toward it under the Clean Power Plan even more than we are today. So you need natural gas pipeline to be able to service these new power plants, and that pipeline just doesn't exist in all parts of the country. It just naturally -- the natural gas isn't in certain parts of the country, so you have to pipe it in. So historically we've had more regional generation, so if there's coal in a region, coal's produced in that region. If there's natural gas in a region, natural gas is produced in that region and then the pipe gets built to take it to the power plants. So we really need to build out a lot of pipeline infrastructure. We need additional storage for natural gas. So there's really a lot of money that needs to be spent to get us to that point. In addition to transmission facilities are always needed. We always feel like the more robust the transmission grid, the better for reliability purposes and for affordability purposes. The more constrained, the more expensive things get. So both under the Clean Power Plan, and even without it, frankly, we'd be supporting additional transmission in this country.
Monica Trauzzi: All right. We're going to end it there. Thank you for coming on the show.
Joy Ditto: Thank you so much for having me. I really appreciate it.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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The Constitution Isn’t Burning, But the Planet Is
Mar 25, 2015 | The Hill - Congress Blog
By Abigail Dillen
This week, Harvard law professor Larry Tribe captivated climate deniers and House Republicans when he went before Congress to attack the President’s Clean Power Plan, a landmark proposal to rein in carbon pollution from power plants. When the country’s most famous constitutional law professor teams up with the country’s most regressive industry to argue that EPA is “burning the constitution” by proposing to limit pollution under the Clean Air Act --well, that’s a spectacle. To his credit, Tribe was a zealous advocate for his client, Peabody Energy, the world's largest private sector coal company. One hopes he was paid handsomely for the irreparable damage he has done to his reputation as a legal thinker.
Invoking states’ rights and separation of powers and citing the Fifth and Tenth Amendments, Tribe asserts that EPA is "commandeering" state governments, "holding a gun" to state heads, and dictating the state energy mix. How to reconcile these grave charges with the action EPA is actually taking? Accounting for the existing power mix in each state, EPA is proposing tailored emission reduction targets that are readily achievable in any number of ways from operating coal-fired power plants more efficiently to investing in energy efficiency to relying more on renewables and gas. States determine their power mix of choice, and if they don't want anything to do with the Clean Power Plan, they can "just say no," as Sen. Mitch McConnell (R-Ky.) is advocating. At that point, EPA steps in and implements the federal rule without requiring any action by the state, much less commandeering state resources. To be clear, not even Tribe contests EPA's authority to regulate carbon pollution from power plants under the Clean Air Act. The Supreme Court has made that clear in three successive decisions.
ADVERTISEMENTTribe also pleads the case of dirty old coal plants that are becoming unprofitable in the face of long overdue regulation of deadly air and water pollution that has gone unchecked for decades -- to the extraordinary economic advantage of the coal sector. He claims that any pollution limit that spurs the retirement of a coal plant amounts to an unconstitutional taking of private property. Putting aside the fact that there is no law to support this argument, the proposition that the Constitution recognizes a private property right to pollute is breathtaking and obviously wrong.
Notably, the argument that Tribe develops in any plausible detail is a statutory argument that the Clean Air Act precludes regulation of both air toxics such as mercury and greenhouse gases such as carbon dioxide. Richard Lazarus and Jodi Freeman (also Harvard law professors) nicely debunk this counter-intuitive reading of the Clean Air Act, which conflicts with EPA's longstanding interpretation under administrations both Democratic and Republican, including the George W. Bush administration. But even if Tribe weren't wrong about the statute, his constitutional argument would still be absurd. EPA doesn't threaten the rule of law when it interprets the statutes it implements. The agency is subject to legal challenge, and ultimately the courts will have the power to decide whether the agency is wrong or right. That's exactly what will happen when Peabody Energy exercises its right to file suit over EPA's final Clean Power Plan.
Larry Tribe knows as well as anyone the difference between Constitutional and administrative law. He must know that the Constitution is in no danger. Unfortunately, the planet is. The world would be better off if he were not trying to confuse the issues. -
Key Senate Dems Appear Open To Delaying Controversial Rule
Mar 25, 2015 | E&E Daily News
By Amy Snider
Key farm state Senate Democrats are embracing the idea that the Obama administration should put its controversial water rule through another round of public comment -- a move that rule supporters say would be as good as killing it.
During a hearing of the Senate Agriculture Committee yesterday, multiple Democrats raised concerns about the proposed rule, which would increase the number of streams and wetlands that receive automatic protection under the Clean Water Act following two muddled Supreme Court decisions.
"I think we all know well the need for EPA to rework the rule to provide greater clarity for our farmers, ranchers and state regulatory agencies," said Sen. Joe Donnelly (D-Ind.). "We all want a rule that protects our water from pollution, but we also need a rule that provides certainty and confidence for all stakeholders, and even EPA admits they need to improve the rule to reach that outcome."
Agricultural groups have been some of the most vocal opponents of the regulatory proposal, arguing that it is confusing and could require them to get permits for everyday farming practices like spraying pesticides.
U.S. EPA Administrator Gina McCarthy has said that she heard their concerns and promised that they will be addressed in the final rule, due out this spring, but that the agency has no plans for another round of public comment (E&ENews PM, March 16).
But on Capitol Hill, calls are growing for EPA and the Army Corps of Engineers, which jointly proposed the rule, to let stakeholders weigh in again before it is finalized.
"We don't have an EPA rule, we have a proposed rule and a promise that they're going to fix it, and I think there's a whole lot of distrust on whether in fact we're going to see a rule that clarifies and fixes some of the concerns," Sen. Heidi Heitkamp (D-N.D.) said during yesterday's hearing.
"My point is, wouldn't it be better to basically propose a new rule and -- it could be the rule they're working on now -- and open it back up for comment so that people can have additional dialogue and additional consultation?" she asked.
Heitkamp and Donnelly both voted for an amendment to kill the water rule in 2013 -- the last time senators formally weighed in on the issue.
Sen. Amy Klobuchar (D-Minn.), also a member of the Senate Agriculture panel, voted against that amendment two years ago, although that was before the current rule language was proposed.
Yesterday, she indicated that her mind was not made up on the rule. She noted that she's heard a lot of concerns from her rural counties and asked witnesses to weigh in on precisely where they wanted the process to go from here.
Michigan Sen. Debbie Stabenow, the top Democrat on the panel and a backer of the water rule, appeared opposed to a delay.
She said EPA officials responded swiftly and fully to a letter that she and other Democrats on the panel sent last summer raising concerns about the regulatory proposal (E&E Daily, Aug. 1, 2014). And she stressed, through questions to witnesses, that the existing uncertainty around the scope of the Clean Water Act has a cost, too.
"We've heard a lot of concerns about keeping the comment period going, and going back, and so on," she said. "I'm wondering if you think eliminating the clean water rule and starting all over again would be wise for creating certainty at this point in time?"
Opponents of the water rule in both the House and the Senate are preparing their lines of attack as the agencies head toward finalization.
Rep. Bob Gibbs (R-Ohio), one of the chief opponents in the House, has said that he is working on a bill to unveil next month that would require the agencies to start over again and begin by consulting state and local officials. The House passed a similar measure last year with the support of 35 Democrats (E&E Daily, Sept. 10, 2014).
In the Senate, where John Barrasso (R-Wyo.) and Jim Inhofe (R-Okla.) are leading the opposition, the vote count is tighter. Moderate and farm state Democrats are likely to be the deciding votes.
Vote counters could have a better read by the end of today where those lawmakers stand.
Barrasso has filed an amendment relating to the water rule to the budget resolution currently being considered on the Senate floor, and said in an interview that it is slated for a vote today.
"I expect significant support and am looking for support across the aisle," he said.
The actual implications of the budget amendment are limited. Not only is the budget resolution -- and any amendments -- nonbinding, but the amendment language simply seeks to ensure that the Clean Water Act "is focused on water quality" and floats areas for limiting federal authority.
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EPA Avoids Taking Position on Disposal Legislation
Mar 25, 2015 | E&E Daily News
By Manuel Quiñones
U.S. EPA yesterday defended its new rule to address the disposal of coal combustion waste while avoiding taking a strong position on legislation to change it.
The House Energy and Commerce Subcommittee on Environment and the Economy is scheduled to vote this morning on a bill that sponsors say would complement the agency's rule.
Even though House Republicans have often tried to block or scrap Obama administration environmental policies, subpanel Chairman John Shimkus (R-Ill.) said his goal was to "be helpful."
"Our intent was, as much as we could, grabbing the regulation language and put it in the bill," he said.
But he could not get EPA to agree. "Some of the details ... is what we are going to have to work with you on," said Mathy Stanislaus, assistant administrator for the Office of Solid Waste and Emergency Response.
Shimkus and other GOP lawmakers, often appearing exasperated by EPA's circumspect comments, kept trying to press Stanislaus to acknowledge the similarities between their bill and the rule.
Beyond that, they say EPA should like the bill because it would give the agency the power to oversee state coal ash disposal programs.
EPA's decision to regulate the material under Subtitle D of the Resource Conservation and Recovery Act means its rules are self-implementing, left to states or citizen lawsuits.
But when a panel Republican asked whether he agreed that EPA would have more regulatory power under the legislation, Stanislaus responded, "We're not sure" -- evidence of the agency's skepticism about the bill.
Backers have also touted the fact that the legislation includes provisions for legacy ash ponds -- those no longer collecting new waste -- and financial assurance requirements, something not in EPA's rule.
Shimkus asked, "Your rule, does it include financial assurance?"
Stanislaus responded, "The coal ash rule does not include financial assurance."
Pressed to explain his preference for his agency's own rule over the legislation, Stanislaus questioned the bill's timeline for companies to address structural integrity issues.
That's one reason environmental groups -- which say EPA's rule is too weak and don't like its self-implementing nature -- have defended the agency and opposed the legislation.
They are concerned about accidents, like the 2008 impoundment failure in Tennessee, which sent more than 1 billion gallons of slurry into surrounding lands and waterways. They also want a crackdown on seeping dumps.
"The coal ash rule contains very specific detail regarding elements of [reporting] transparency, [incident] prevention and response," Stanislaus said. At another point he told the panel, "We believe that the rule comprehensively addresses the risk that we've identified."
Stanislaus said EPA was encouraging states to adopt the agency's rule or come up with stronger standards. "We believe states will have sufficient time to develop solid waste management plans for approval," he said.
Environmentalists believe EPA gave utilities and coal ash recycling companies significant concessions, mainly by not regulating coal ash as a hazardous waste.
Still, Rep. David McKinley (R-W.Va.) expressed concern about the agency moving to restrict some uses for coal ash, like to de-ice roadways, a practice many environmentalists oppose.
EPA has already blessed the use of coal ash in cement and wall board. "We're now working on a methodology for the safe use of unencapsulated [uses]," Stanislaus said. "What it would do is to lay out the kind of techniques and application so it can be safely recycled. It would not at all get involved whether that's subject to regulation."
Several Democrats have supported previous versions of the bill, in part to protect coal ash recycling from the potential stigma of an EPA hazardous designation.
One of those Democrats, Rep. Gene Green of Texas, said he would support the legislation but with some reservations. He said he liked the legislation's regulatory scheme but wanted to address some of the environmentalists' concerns.
But in the view of Rep. Paul Tonko (D-N.Y.), the subcommittee ranking member, "Based on this testimony I do not see a need for legislation at this time. EPA's proposal deserves, I believe, a fair test."
The Democratic-controlled Senate managed to halt the legislation in previous years. But bill boosters are hoping for a better outcome this time around, with Republicans controlling that chamber.
Sen. John Hoeven (R-N.D.), as in years prior, plans to introduce companion legislation to the House measure. But Senate leaders have yet to present a timeline for action.
Backers have also not openly discussed the possibility of attaching the measure to a broader bill. A version in 2012 almost made it into that year's transportation reauthorization.
Legislation aside, both utilities and environmental groups are keeping open the option of suing EPA once the rule hits the Federal Register, making it official. Stanislaus said EPA had already sent it out for publishing with what he called technical corrections.
Environmentalists are disappointed EPA decided against phasing out wet ash impoundments, like the one that burst in Tennessee, and wanted tougher action on legacy dumps. Utilities, for their part, see the action the agency is already taking as potentially illegal.
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Supreme Court Appears Split Over EPA Toxics Standards
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Division Seen in Supreme Court on Pollution Limits
Mar 25, 2015 | The New York Times
By Adam Liptak
The Supreme Court on Wednesday seemed closely divided over the fate of one of the Obama administration’s most ambitious environmental initiatives.
The case concerns Environmental Protection Agency regulations adopted in 2012 that set limits on emissions of mercury and other toxic pollutants from coal-fired power plants. Environmental groups celebrated the measure as perhaps the greatest clean-air achievement of the Obama administration’s first term.
But industry groups and a score of states said the regulations imposed crippling and unwarranted expenses. They sued, saying the administration had violated the Clean Air Act, which required the regulations to be “appropriate and necessary,” by failing to undertake a cost-benefit analysis.
In their Supreme Court brief, Michigan and other states said the agency’s “decision that it is ‘appropriate’ to achieve $4 to $6 million in health benefits at a cost of $9.6 billion is not reasonable, imposes great expenses on consumers, and threatens to put covered electric utilities out of business.”
The agency responded that the Clean Air Act does not demand that costs be taken into consideration early in the regulatory process, when it determines whether certain pollutants are dangerous. It does consider costs later in the process, the agency said, when it sets emissions standards.
In its brief, the agency said the benefits would exceed the costs by between $27 billion and $80 billion each year. “Those quantifiable benefits,” the brief said, “include the prevention of up to 11,000 premature deaths each year.”
A divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled last year that the agency’s interpretation of the Clean Air Act was reasonable.
“For E.P.A. to focus its ‘appropriate and necessary’ determination on factors relating to public health hazards, and not industry’s objections that emission controls are costly, properly puts the horse before the cart,” Judge Judith W. Rogers wrote for the majority.
In dissent, Judge Brett M. Kavanaugh said that in context, the statute required attention to costs “as a matter of common sense, common parlance, and common practice.”
“To be sure,” he continued, “E.P.A. could conclude that the benefits outweigh the costs. But the problem here is that E.P.A. did not even consider the costs. And the costs are huge, about $9.6 billion a year — that’s billion with a ‘b’ — by E.P.A.’s own calculation.”
The case is the latest in a series of challenges from industry groups to the Obama administration’s environmental agenda. In the term that ended in June 2014, the justices heard cases on two other sets of environmental regulations — one aimed at limiting power plant pollution that wafts across state lines, the other at cutting planet-warming greenhouse gas emissions.
The E.P.A. won the first case and largely prevailed in the second, though the Supreme Court indicated that it remained prepared to impose limits on the agency’s regulatory authority.
Wednesday’s argument concerned three consolidated cases: Michigan v. Environmental Protection Agency, No. 14-46; Utility Air Regulatory Group v. Environmental Protection Agency, No. 14-47; and National Mining Association v. Environmental Protection Agency, No. 14-49.
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U.S. Justices Divided Over Challenge To Mercury Air Pollution Rule
Mar 25, 2015 | Reuters
By Lawrence Hurley
The U.S. Supreme Court appeared closely divided on Wednesday as it weighed whether the Obama administration had to consider costs before deciding whether to regulate emissions of mercury and other hazardous pollutants mainly from coal-fired power plants.
Justice Anthony Kennedy could be a possible swing vote on the nine-justice court, with liberals backing the U.S. Environmental Protection Agency's rationale and conservatives hostile to the government's arguments.
The conservatives, including Kennedy, asked questions that indicated they were concerned that it was not enough that the agency implicitly considered costs when issuing standards for specific pollution sources.
Chief Justice John Roberts also suggested he was troubled by the disparity between the costs and benefits of the regulation, saying it was a "red flag" for him.
The challengers, including industry groups and some states, say the costs are $9.6 billion a year but the benefits are only worth a few million dollars.
The government says it did not quantify some of the benefits, but says they could be worth billions of dollars, including a reduction in mercury poisoning, which can lead to developmental delays and abnormalities in children.
The challengers appealed after an appeals court upheld the regulation in June 2014.
Companies opposing the rule include Peabody Energy Corp(BTU.N), the nation’s largest coal producer. Exelon Corp(EXC.N), the biggest U.S. nuclear power plant operator, is among several power companies supporting the rule.
The 2012 mercury regulation also covers oil-fired plants, although these are less common. It is being targeted by Michigan and 20 other states as well as various industry groups, including the National Mining Association.
The challengers say the EPA's refusal to consider the estimated $9.6 billion-a-year costs will lead to bigger electricity bills for Americans.
The regulation could help prompt utilities to shut down some coal-fired plants due to compliance costs. The EPA says the rule, due to go into effect this year, applies to about 1,400 electricity-generating units at 600 power plants. Many are already in compliance, according to the U.S. Energy Information Administration.
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Delaware, 'Clean' Utilities Fault EPA's Air Rule Exemption For Generators
Mar 25, 2015 | InsideEPA
By Stuart Parker
Delaware and "clean" utilities that burn mostly low-emitting fuels such as natural gas are faulting EPA's decision to grant an exemption to diesel and other generators from having to meet some emissions limits in an engine air rule, urging an appellate court to scrap the 50-hour regulatory exemption for "non-emergency" use of the engines.
The arguments, detailed in new briefs filed with the U.S. Court of Appeals for the District of Columbia Circuit, mark the latest round in a long-running legal battle over EPA's reciprocating internal combustion engines (RICE) rule.
The court in September heard oral arguments in Delaware Department of Natural Resources, et al., v. EPA, a suit contesting various aspects of the rule including a broader 100-hour exemption for use of RICE in demand-response programs that seek to protect the grid during periods of high electric demand.
The D.C. Circuit severed a challenge to the 50-hour non-emergency exemption out into its own suit Conservation Law Foundation (CLF), et al. v. EPA, and placed that case on hold pending EPA's review of a petition for administrative reconsideration of the provision -- which the agency subsequently denied.
Clean utilities PSEG Power LLC and Calpine Corporation then sued over the denial of the petition, and their challenge was consolidated with the existing suit over the 50-hour exemption. Briefing is ongoing in the case, and in the new briefs the utilities and Delaware outline why they believe the Clean Air Act does not allow the 50-hour exemption.
The 100-hour exemption at issue in the Delaware litigation applies to engines when they meet "emergency" conditions, the utilities say. The utilities say it was driven by the claimed need for emergency generators to participate in demand-response programs that enable "peak shaving" -- reducing the amount of energy purchased from a utility during peak hours of high charges -- during periods of high electric demand.
"Aggregators" of generators for demand-response programs lobbied EPA for setting the exemption of 100 hours, up from EPA's prior level of 15 hours, saying it was necessary to allow generators to participate in organized "capacity markets" such as the PJM Interconnection.
In contrast, EPA designed the 50-hour exemption at issue in the CLF legal challenge to maintain grid reliability for rural utilities with vulnerable "radial" transmission lines. The petitioners also claim the exemption applies explicitly to "non-emergency" situations, short of actual blackouts, but the agency in justifying the measure has claimed it is legitimate to consider near-blackouts to be emergencies worthy of intervention.
Critics say the 50-hour exemption is unjustified because of the public health implications of allowing air toxics and other emissions from RICE operating without emissions controls, leading to air pollution increases.
They also say 50-hour exemption was designed to protect the rural electric grid and is unnecessary in more densely-populated areas with more robust grid infrastructure.
Emissions Standards
In its March 19 brief, Delaware says that EPA illegally modified its emissions standards for hazardous air pollutants (HAPs), or air toxics standards, for RICE and also its new source performance standards (NSPS) governing "criteria" pollutants from the sector, such as nitrogen oxides.
The Clean Air Act "requires EPA to adopt either [generally available control technology, or GACT] or management practices to reduce emissions of hazardous air pollution. In this case, EPA adopted a subcategory that actually shields sources from emission reductions requirements rather than applies them," Delaware says. "EPA further abuses its discretion in allowing for-profit uses to fall within the emergency subcategory, having previously rejected that approach because of high levels of HAPs and criteria pollution these engines emit."
"EPA also modified the NSPS at the same time, to allow uncontrolled new engines to also participate in these profit-creating enterprises," citing "conformity" as the reason, without evaluating the impact of the changes on attainment of national ambient air quality standards (NAAQS), Delaware says. This failure to consider the NAAQS impact is arbitrary and capricious, and hence unlawful under the Clean Air Act, the state says.
In their March 19 joint brief, Calpine and PSEG and environmental law firm CLF instead criticize EPA's rationale for the 50-hour exemption. "The only justification proffered by EPA for the 50-Hour Exemption was to address purported reliability issues unique to rural areas with radial transmission networks, rather than the redundant transmission grids common in more populated, urban areas," the groups say.
"Whatever the merits of applying the 50-Hour Exemption to diesel engines located in such rural areas, EPA provided no justification whatsoever for adopting a national 50-Hour Exemption that will exempt generators in rural areas and urban areas alike from emissions controls necessary to prevent serious public health hazards," they say. The exemption allows dirty generators to displace cleaner generation by power plants using controls, they add.
EPA ignored comments from industry on how it could tailor an exemption to serve rural areas only, they say. "EPA failed to give any meaningful consideration to these suggestions," they claim. Therefore the "unexplained rejection of Petitioners' comments cannot withstand judicial review," they say.
The utilities and CLF also say EPA's 50-hour exemption is based on a flawed assumption that it would be uneconomic for generators to install pollution controls. "A fundamental logical error pervades EPA's analysis, however: in determining whether installing controls would be cost-effective, EPA assumes that engines operating controls would continue to operate for no more than 50 hours per year," they say. "By installing controls, however, those engines would become able to operate for more than 50 hours per year -- indeed, they would be able to operate for as many hours as would be profitable. EPA failed to consider the emissions avoided from this additional operation when considering whether controls would be cost-effective," the groups say.
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Mar 25, 2015 | PR Newswire
A large group of national trade associations representing manufacturers, farmers and energy producers today announced they have formed the Rail Customer Coalition. The Coalition is calling on Congress and the Surface Transportation Board (STB) to modernize the nation's freight rail polices to better serve shippers, their customers, railroads and American consumers. Specifically, the Coalition strongly supports the "Surface Transportation Board Reauthorization Act of 2015" that was drafted under the leadership of the U.S. Senate Committee on Commerce, Science & Transportation Chairman John Thune (R-S.D.) and Ranking Member Bill Nelson (D-Fla.).
The Coalition has also launched a new website highlighting the need for freight rail reform and released new research that found rising rail rates are taking a growing toll on American businesses.
"Our groups believe it is time to review key aspects of rail policy and adopt common-sense improvements to ensure that the U.S. is on course to meet the needs of rail carriers, shippers and the public," said Bob Stallman, President of the American Farm Bureau Federation.
Momentum is growing on Capitol Hill to enact legislation that will increase rail-to-rail competition and improve how freight rail issues are resolved. The Coalition's goals are to educate lawmakers on the growing problems that are impacting rail customers and to offer meaningful, reasonable and workable solutions.
"As the auto industry continues to rebound from the economic downturn, automakers have encountered persistent rail service issues, resulting in an unprecedented disruption in the ability to deliver vehicles to customers. These service problems are not unique to the auto industry. Together, our groups believe it is time to review key aspects of rail policy and adopt common-sense improvements to ensure that the U.S. is on course to meet the needs of rail carriers, shippers and the public," said Shane Karr, Vice President of Federal Government Affairs at the Alliance of Automobile Manufacturers.
The STB Needs to Be Modernized
Congress has not revisited the nations' freight rail policies since it created the STB. It's clear the Board's current policies have not been able to keep up with the massive changes in the freight rail industry or achieve the goals that Congress established in 1980 when it passed the Staggers Rail Act.The "Surface Transportation Board Reauthorization Act of 2015" would reauthorize and make substantial changes to the STB, the only government entity responsible for handling commercial freight rail issues, and would modernize the Board for the first time since its creation. In addition to streamlining how the STB operates, the legislation would help improve how the Board handles rate and service issues.
"We've reached a tipping point where the lack of competitive rail service is having a serious impact on American businesses," said Philip K. Bell, President of the Steel Manufacturers Association. "At the same time, the Surface Transportation Board's slow and burdensome processes leave many shippers with no competitive options and no feasible way to challenge unreasonable rates."
New Research Shows Rates Continue to Soar
The Coalition released new economic research that shows an all too familiar pattern—soaring freight rail rates. According to a new report, rates have doubled since 2001, which negatively impacts a broad spectrum of businesses and industries.To determine the rate premium American producers pay on each shipment, Escalation Consultants used publicly available data to calculate the railroads' revenue-to-variable cost ratio (RVC) for millions of carloads of rail traffic. The report found the following: In 2013, two-thirds (67 percent) of all rail rates exceeded 180 percent RVC, making them subject to potential STB review for being unreasonably high. From 2005 to 2013, the total rate premium paid by commodity shippers increased 121 percent even though carload volume declined by 2.4 percent. As a result, the total rate premium paid by commodity shippers in 2013 was over $18 billion. The commodity groups with the largest total rate premiums were chemicals and plastics ($5.3 billion), coal ($4.1 billion) and automobiles and other transportation equipment ($1.7 billion). Many rates were far above the STB's jurisdictional threshold of 180 percent RVC; for example, one quarter (25 percent) of rates exceeded 300 percent RVC, or three times the railroad's variable cost.
"Chairman Thune and Ranking Member Nelson have carefully crafted a smart and significant proposal that reflects the input of numerous stakeholders and responds to the growing support for modernizing the STB," said Cal Dooley, President and CEO of the American Chemistry Council. "The reasonable reforms in this bill will make many important changes, such as streamlining the STB's overly burdensome rate review standards, providing reasonable arbitration procedures to resolve rate disputes, and allowing the STB to be more proactive in resolving freight rail issues. Moreover, the legislation will allow both railroads and shippers to thrive, while encouraging the growth of the U.S. economy."
The Coalition is urging Congress to pass the "Surface Transportation Board Reauthorization Act of 2015" and also urging the STB to follow through on reforms that will increase access to competitive service and will allow the Board to operate more efficiently and effectively.
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Democrats Urge Funding to Address Crude-By-Rail Concerns
Mar 25, 2015 | E&E Daily News
By Sean Reilly
Thirty-seven House Democrats are asking leaders of an Appropriations transportation subpanel to approve the Obama administration's request for more than $300 million next year mainly aimed at preventing oil train derailments and improving emergency response.
Congress must furnish enough money in fiscal 2016 "to keep our energy transport systems safe and secure," Rep. Paul Tonko (N.Y.) and three dozen other lawmakers wrote in a Monday letter to Reps. Mario Diaz-Balart (R-Fla.) and David Price (D-N.C.), the chairman and ranking member, respectively, of the House Transportation, Housing and Urban Development, and Related Agencies Appropriations Subcommittee.
"Americans living near oil train routes and terminals need to have confidence that we are making these investments to mitigate safety risks," the lawmakers wrote. As crude-by-rail traffic skyrockets -- largely as a result of oil production in North Dakota's Bakken formation -- the last year has brought a number of fiery mishaps, including a 105-car train derailment in Illinois earlier this month.
The letter was released yesterday in advance of this morning's subcommittee hearing at which the acting heads of the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration (PHMSA) are scheduled to testify on the administration's proposed fiscal 2016 budget for their agencies. Both are part of the Department of Transportation.
Of five programs cited in the letter, the largest is the railroad administration's operations and safety account, which would get $204 million under the White House's request, or about a 9 percent increase over this year's level. The money would be used to hire 45 new employees, continue automated track inspections of crude-by-rail routes, and train workers on short-line railroads involved in shipping energy products, according to the letter.
The White House request also includes $64 million for PHMSA's safety account, up from $52 million this year, in part to hire more inspection and enforcement employees. It also asks for a new $5 million for the office of Transportation Secretary Anthony Foxx "to support the oversight and coordination of multi-modal prevention and response activities" connected to shipment of oil and other energy products.
In total, the administration's request for the five programs represents about a 13 percent boost over this year, according to information provided by Tonko's office.
Price believes "improving transportation safety must continue to be a priority for the entire agency," Price spokesman Lawrence Kluttz said in an email. "Securing energy shipments is one emerging safety challenge that will require special attention this year and in the future."
A spokeswoman for Diaz-Balart did not reply to a request for comment.
Although PHMSA got about a 22 percent budget boost last year, lawmakers balked at creating a $40 million fund sought by the administration to address safety concerns surrounding the rapid growth in oil shipments by trains and trucks.
Also yesterday, Sen. Joe Manchin (D-W.Va.) released a similar letter sent last week to Sens. Susan Collins (R-Maine) and Jack Reed (D-R.I.), who head the comparable Appropriations subpanel in the Senate. Besides Manchin, the signers included 19 Senate Democrats and two independents who caucus with the Democrats. That subpanel has not yet held any hearings on the Obama administration’s request.
Separately yesterday, Sen. Shelly Moore Capito (R-W.Va.) offered an amendment to the Senate's pending budget resolution urging DOT to finalize its new oil tank car standards, delivery of which already missed a January deadline that Congress set in last year's spending bill. Capito's home state was the site of an oil train derailment last month, and she has complained that uncertainty caused by the rules' delay is preventing needed safety improvements.
Sen. Maria Cantwell (D-Wash.) also said she is considering a budget amendment addressing the issue. This morning, Cantwell is planning to unveil a comprehensive safety bill addressing tank car standards, inspections and volatility, among other issues, aides said.
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Senate Dems Seek Stronger Oil Train Safety Rules
Mar 25, 2015 | The Hill - E2 Wire
By Timothy Cama
Senate Democrats have proposed a bill to set stronger safety rules for trains carrying oil, including regulating the content of the oil itself.
Sens. Maria Cantwell (D-Wash.) and Tammy Baldwin (D-Wis.) said the most critical problem with the Department of Transportation’s (DOT) ongoing regulatory effort on oil trains is that it does not confront the problem of the volatility of oil from North Dakota’s Bakken region.
The volatility and content of explosive gases in the oil makes it much more likely that trains would explode if they crash or derail, the senators said.
“Needless to say, the issue of volatility is a very big issue for us,” Cantwell, top Democrat in the Energy and Natural Resources Committee, told reporters Wednesday.
She blamed oil volatility for the 2013 oil train explosion in Quebec, Canada, that killed 47, and said such explosions frequently destroy everything in a half-mile radius. The number of oil train disasters has increased sharply in recent years along with domestic oil production, and they are often accompanied by explosions.
“Our legislation requires that the Pipeline and Hazardous Materials Safety Administration regulate the volatility of oil inside these tank cars,” Cantwell said. “It ensures that oil volatility is monitored and regulated.”
PHMSA, which is part of DOT, would first have to issue interim standards for the content of gases like butane, propane, methane and ethane in the oil that’s in trains, Cantwell said. It would later have to make long-term standards.
“As more and more volatile crude oil moves through Wisconsin and through our country via rail, it’s critical that appropriate safety measures are in place to reduce the risks of having accidents,” Baldwin told reporters.
Sens. Patty Murray (D-Wash.) and Dianne Feinstein (D-Calif.) are also co-sponsoring the proposal.
PHMSA is planning in May to issue new oil train standards that focus on the tank cars themselves, through measures like the thickness of shells, braking improvements and protection of vulnerable areas.
But the Senate Democrats faulted federal officials for not considering volatility in their regulations.
“I believe that with DOT, PHMSA has the ability to do this,” Cantwell said. “They should set a standard on volatility, they are currently not in the process of doing a rulemaking on it.”
The bill from Cantwell and Baldwin also proposes a quick phaseout old tank cars for oil use and sets new requirements for track infrastructure.
Public Citizen welcomed the legislation.
“We can’t let oil and railroad companies make their own rules,” Tyson Slocum, director of the group’s energy program, said in a statement. “Sen. Cantwell’s bill wouldn’t let them, and instead would — rightly — put public safety ahead of corporate profits.”
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Financing Needs Eclipse Regulatory Premise of Subpanel Hearing
Mar 25, 2015 | E&E Daily News
By Sean Reilly
Though the hearing yesterday by a Senate Commerce, Science and Transportation subpanel was ostensibly about the promise of innovative transportation industry regulation, Sen. Roger Wicker (R-Miss.) and others appeared equally eager to talk about the dearth of transportation funding.
"We're simply not meeting the needs," Wicker said. "I don't know how modernistic we can be about that; roads and infrastructure are falling apart in this country."
So it went at the gathering of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security. The session, which lasted less than 90 minutes, was billed as an opportunity to look at a lighter-touch regulatory framework giving businesses more flexibility in deciding how to meet safety targets and other performance objectives. But the conversation repeatedly veered into financing issues -- both how to keep the money coming for traditional road and bridge programs and the need to pay for cutting-edge developments.
After touting his agency's success in cutting roadway deaths by almost 40 percent in the last decade with the help of a performance management tool called "Tracker," Missouri Transportation Department Director David Nichols tossed in his plea for a long-term, sustainable highway and transit bill.
"We're always on this precipice of providing construction projects and then the funding stopping and we're going to have to stop or prevent a project from moving forward," said Nichols, who was also representing the American Association of State Highway and Transportation Officials.
With the latest short-term measure set to expire at the end of May, states could face cutbacks in federal reimbursements this summer unless lawmakers agree on a way to unearth more money.
John Graham, who served as the White House's regulatory chief during part of President George W. Bush's administration, argued in favor of "performance standards" over "prescriptive standards," partly on the grounds that they allow companies to find the cheapest route to compliance.
But that approach may be foreign to employees at regulatory agencies, who will require training in performance measures and risk-based analysis, Graham acknowledged.
Funding will be needed, he said, "to get them up to snuff to do this type of work."
Peter Sweatman, director of the University of Michigan's Transportation Research Center, hailed the revolutionary potential of automated and "connected" vehicles. He then called on Congress to approve the Obama administration's request for more than $900 million over six years for "intelligent transportation" research.
Under the last highway and transit authorization law approved in 2012, lawmakers inserted a host of performance provisions intended to wring more efficiency out of state and federal transportation spending. Many of those requirements are still being put in place, but the hearing underscored the tension between the two regulatory styles.
At the hearing's outset, subcommittee Chairman Deb Fischer (R-Neb.) faulted the Obama administration's approach, whether in setting new limits on truckers' hours or in foisting safety requirements on railroads.
Prescriptive rail regulations "hamper innovation and carry a high cost" both for the government and carriers, Fischer said, citing testimony at a January hearing by the head of Nebraska-based Union Pacific Corp.
Providing some pushback later on was Peter Rogoff, undersecretary for policy at the U.S. Transportation Department.
While agreeing that a performance-based approach has its place, Rogoff added that prescriptive rules "have often served the American public quite well."
A huge volume of prescriptive aviation regulations -- detailing, for example, how to clip a wire to a plane's fuselage -- has yielded the busiest, yet safest, air travel system in the world, Rogoff said.
Similarly, he added, a combination of prescriptive regulations, stepped-up government enforcement and greater diligence by railroad companies made last year the safest on record "when it comes to train accidents."
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Trains, Trucks Must Communicate to Avoid Accidents -- Experts
Mar 25, 2015 | E&E - Greenwire
Transportation experts say plans by U.S. railroads to use a $9 billion high-tech system to stop train wrecks won't stop trains and trucks from crashing into each other unless the two industries communicate.
Take, for example, the Amtrak train that hit a huge tractor-trailer in North Carolina this month, injuring 55 people. That accident has been attributed to no one warning the railroad that a large truckload could be in the way of the track, but such a warning was not required by regulations.
"It is crazy that this doesn't get coordinated with the railroad, considering how difficult this operation can be and how long it takes to cross it," said Rob Molloy, acting director of highway safety for the National Transportation Safety Board.
No federal laws with penalties exist to encourage rail and trucks to communicate, and about one-third of states don't require coordination either.
But according to federal regulators, trucks get in accidents at highway-rail crossings about 10 times a week. Tractor-trailers are particularly vulnerable, being hit at least 20 times in 2013 and 2014.
The Federal Highway Administration has issued "best practices" suggesting truck drivers "make advanced contact with the railroad if in doubt that the load can safely negotiate a crossing."
And while NTSB has recommended solutions to rail crossing accidents for 47 years, it can't make the rules. Industry groups offer strong push-back, worried that creating rules would leave them open to lawsuits if something goes wrong. "As soon as someone acknowledges responsibility to try to solve the problem, their own belief system is that that opens them up to liability," said attorney Bob Pottroff, who specializes in rail accidents (Martha Waggoner, Associated Press, March 24).
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