ACC AM Mar 30

Congressional Hearings

1. How the Hidden Cost of Federal Regulations Impact Small Businesses & Economic Growth

   Mar 30, 2015 | U.S. Senate Committee on Small Business & Entrepreneurship

   Location: East Baton Rouge Parish City Hall - Council Chamber, 222 St. Louis Street, Baton Rouge, LA 70802 / 9:30 AM
2. Reducing the Federal Tax Burden for America’s Small Businesses

   Apr 2, 2015 | U.S. Senate Committee on Small Business & Entrepreneurship

   Location: Lafayette City Hall, 705 West University Ave., Lafayette, LA - Council Chambers / Time Not Available

Industry and Association News

3. (ACC Mentioned) Corporations Find Lobbying Preferred Path to Influence

   Mar 27, 2015 | The Washington Post

   By Lee Drutman
   
   
   When the Supreme Court ruled in Citizens United that corporations could spend unlimited amounts on elections, Democrats and a few Republicans warned that the 2010 decision was going to open the floodgates for corporate money in politics. A million dollars here, a million there, and businesses could get rid of their stubborn opponents...

Chemical Management News

4. (ACC Mentioned) Reader View: A Toxic Shell Game: New Mexico Deserves Better

   Mar 28, 2015 | Santa Fe New Mexican

   By Sofia Martinez & Richard Moore
   
   
   A decade of pressure by parents, doctors, scientists and state governments has created momentum to finally fix the broken federal law governing chemicals used in commerce, the Toxic Substances Control Act of 1976, which has allowed thousands of hazardous and untested chemicals to be widely used in everyday consumer products.
5. (ACC Mentioned) It’s Time to Understand the Science Behind BPA

   Mar 30, 2015 | Tuscon - Arizona Daily Star

   By Michael Roizen, M.D., & Mehmet Oz, M.D.
   
   
   Do’s & Don’ts Here’s what you can do: Although BPA is in many products you’re in contact with every day, and alternative chemicals from the same bisphenol family (bisphenol B, C, E, F, G, M, P, PH, S, TMC and Z) used in many plastics labeled “BPA-free” may have similar effects, these strategies can help you reduce your exposure: 1.
6. TSCA Reform Advocates Eye State-EPA Models To Guide Preemption Debate

   Mar 27, 2015 | InsideEPA

   By Bridget DiCosmo
   
   
   Proponents of reforming the Toxic Substances Control Act (TSCA) are weighing existing legislative models to help inform how to structure the bill's provisions on EPA and state partnerships on chemicals management and the extent to which the measure should preempt state programs -- a major point of contention in the reform debate.
7. Manufacturers of Six Biodiesels Must Prepare To File Data in 2016 as EPA Withdraws Rule

   Mar 30, 2015 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   Manufacturers of six biobased diesel chemicals must prepare to provide the Environmental Protection Agency with information in 2016 about how their chemicals are processed and used because the agency is withdrawing on March 30 a final rule that exempted manufacturers from this requirement.

Chemical Security News

8. House Panel Probes Chemical Board's Move to Consolidate Executive Authority

   Mar 30, 2015 | BNA Daily Environment Report

   By Robert Iafolla
   
   
   The House panel with jurisdiction over the Chemical Safety and Hazard Investigation Board asked the agency for information on controversial changes to its governance structure in a March 27 letter, signaling continued congressional scrutiny despite the resignation of its embattled chairman. Bipartisan leaders of the House...
9. Chemical Safety & Hazard Investigation Board Chairman Steps Down

   Mar 27, 2015 | Chemical & Engineering News

   By Glenn Hess
   
   
   The chairman of the Chemical Safety & Hazard Investigation Board (CSB) has resigned at the request of the White House. Members of Congress had called on President Barack Obama to fire Rafael Moure-Eraso, charging that he mismanaged the small independent agency that investigates accidents at chemical facilities and refineries.
10. Limiting Flammable Gas Volume on Planes Drove Butane Fuel Cell Rule, PHMSA Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Robert Iafolla
    
    
    In response to a court order, a federal safety regulator further explained that it barred flammable-gas fuel cells in checked airline baggage due to concerns about such gases causing or contributing to fires in inaccessible cargo compartments, according to a Federal Register notice scheduled for publication March 30.

Energy and Environment News

11. Most Oil, Gas Drillers Keep Fracking Chemicals Secret in FracFocus, EPA Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Mark Drajem
    
    
    Most oil and gas drillers kept secret at least one chemical used in hydraulic fracturing, an analysis by the Environmental Protection Agency found, raising concerns among environmentalists about risks from unknown and possibly dangerous ingredients. The EPA scoured filings on the industry-backed FracFocus online registry and found...
12. EPA: Nearly 700 Chemicals Used in Fracking

    Mar 27, 2015 | The Hill - E2 Wire

    By Timothy Cama
    
    
    The Environment Protection Agency on Friday released a new analysis that concludes almost 700 chemical additives are used in hydraulic fracturing for oil and natural gas. Ninety-eight percent of the fluid injected into wells is water mixed with sand, which is used to keep fractures open so that oil and gas can be removed from shale.
13. Advocates Say EPA FracFocus Analysis Shows Need For Federal Database

    Mar 27, 2015 | InsideEPA

    By Bridget DiCosmo
    
    
    Environmentalists are saying that EPA's analysis of data it took from the state-run FracFocus database for disclosure of chemicals used in hydraulic fracturing fluid underscores the need for a federal mandatory disclosure database, because the agency found gaps in the data where industry claimed it was confidential business information (CBI).
14. BLM Advances Leasing Plan for Sensitive Colo. Landscape

    Mar 27, 2015 | E&E News PM

    By Scott Streater
    
    
    The Obama administration is finalizing an oil and natural gas master leasing plan that would include drilling restrictions designed to protect sensitive wildlife across hundreds of thousands of acres in northwest Colorado. The Bureau of Land Management today released a final environmental impact statement (EIS) analyzing proposed ...
15. BLM Corrects Details in Hydraulic Fracturing Rule

    Mar 30, 2015 | BNA Daily Environment Report

    The Bureau of Land Management issued a correction to a couple of details in its final rule on hydraulic fracturing of oil and gas wells on federal and Indian lands. The correction changes two of the dates used to specify which wells are covered by certain regulations. The rule (RIN 1004-AE26) being corrected was published March 26...
16. Energy Advisory Council Offers Ideas To Assist Oil, Gas Development in Arctic

    Mar 30, 2015 | BNA Daily Environment Report

    By Alan Kovski
    
    
    The essential technology and knowledge to find and develop U.S. oil and natural gas in the Arctic, including offshore sites, is available today, and the work can be accomplished while protecting the environment, a report released March 27 by an advisory group to the Energy Department said. “That said, there have been recent technology...
17. More Natural Gas Use Would Help Economy, Environment, Pennsylvania Lawmakers Told

    Mar 30, 2015 | BNA Daily Environment Report

    By Leslie A. Pappas
    
    
    Pennsylvania could grow its economy and even improve the environment by creating more incentives to increase the use of natural gas in fleet vehicles, manufacturing and other applications, a panel of business leaders told lawmakers at a forum March 27 in Pittsburgh. While discussion over Pennsylvania's Marcellus Shale deposits usually...
18. FERC Asks Company to Consider New Route for Ohio Pipeline Project

    Mar 27, 2015 | E&E News PM

    Federal regulators have asked the developer of a planned natural gas pipeline in Ohio to reroute the project to avoid populated areas. The city of Green -- midway between Canton and Akron in northeast Ohio -- has asked that 103 miles of the $2 billion Nexus pipeline be moved away from southern Summit County and northern Stark County...
19. EPA Wants States to Develop Own Plans For Power Plant Rule, General Counsel Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Joyce E. Cutler
    
    
    The Environmental Protection Agency wants every state to develop its own plan to comply with carbon dioxide standards for power plants, rather than subjecting states to federal plans, Avi Garbow, the agency's general counsel, told a legal conference. “Make no mistake—the agency is doing everything it can to ensure there is no...
20. McCarthy Defends EPA Clean Power Plan, Rule to Regulate Mercury From Power Plants

    Mar 30, 2015 | BNA Daily Environment Report

    By Carolyn Whetzel
    
    
    Environmental Protection Agency Administrator Gina McCarthy dismissed claims by some energy companies and state officials who allege the proposed Clean Power Plan is an illegal attempt under the Clean Air Act to remake the nation's power sector. McCarthy defended the agency's effort to regulate carbon emissions from existing power...
21. Senate Passes Slimmed-Down Energy Efficiency Bill, Sends Measure to House

    Mar 30, 2015 | BNA Daily Environment Report

    By Ari Natter
    
    
    The Senate on March 27 passed a slimmed-down version of long-stalled energy efficiency legislation authored by Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.). The bill (S. 535), approved by voice vote, includes measures that would loosen efficiency standards for grid-enabled water heaters, increase efficiency in government...
22. Vote-a-Rama Reveals Senators’ Environmental Agenda

    Mar 27, 2015 | Environmental Defense Fund

    By Jeremy Symons
    
    
    It’s been a big news day in the U.S. Senate, with Senate Democratic Leader Harry Reid announcing he won’t run for another term. But that's not the only news. We have had our eyes on the Senate’s marathon “Vote-a-Rama” budget process that wrapped up around three-thirty this morning.
23. Reid’s Energy ‘Vacuum’ Will Be Hard to Fill

    Mar 27, 2015 | PoliticoPro

    By Darren Goode & Elana Schor
    
    
    Harry Reid’s retirement will leave a void not just in his party’s Senate leadership but in the national debate on nuclear power, fossil fuels and modernization of the electricity grid — and will cost environmentalists a crucial ally in Washington. Perhaps more than any congressional leader before him, the Nevada Democrat used his power both...
24. Reid Announces Plan to Retire, Sparking Fight to Replace Him

    Mar 27, 2015 | E&E - Greenwire

    By Daniel Bush & Jennifer Yachnin
    
    
    Senate Minority Leader Harry Reid today announced that he would not seek re-election, setting in motion a leadership change for Senate Democrats and a fight for his seat in the battleground state of Nevada next year. Reid's decision to step down at the end of 2016 will end a three-decade-long congressional career in which he rose...
25. Chuck Schumer in Line to Succeed Harry Reid

    Mar 27, 2015 | Politco

    By Manu Raju & Burgess Everett
    
    
    Just hours after Minority Leader Harry Reid announced he would retire, Sen. Chuck Schumer declared Friday he would run to be Democratic leader — and a source close to the New York Democrat said he has already locked up enough support within the caucus to secure the top job. Schumer will leapfrog Dick Durbin, the Senate minority whip, who announced his backing of the New Yorker Friday as well. Durbin will seek to remain the party’s whip, sources...
26. Final Senate Budget Resolution Contains Handful of Environmental Amendments

    Mar 30, 2015 | BNA Daily Environment Report

    By David Schultz
    
    
    The Senate passed a budget resolution March 27 for the 2016 fiscal year with a handful of amendments on climate change, water rights and other environmental issues. Because the amendments were attached to a nonbinding resolution (S. Con. Res. 11) that won't go to the White House for a signature, they won't become law and, from ...
27. Ninth Circuit OKs Appeal in Superfund Case; Liability for Air Pollutant ‘Disposal' at Issue

    Mar 30, 2015 | BNA Daily Environment Report

    By Steven M. Sellers
    
    
    An appellate court has agreed to hear a case that may decide whether airborne pollutants transmitted from a smelter to a Superfund site constitute an actionable “disposal” for which the smelter owner is liable as an “arranger” (Joseph A. Pakootas v. Teck Cominco Metals Ltd., 9th Cir., No. 15-80005, 3/25/15). The U.S. Court of Appeals for the Ninth...

Transportation News

28. Cantwell's Crude-by-Rail Budget Amendment Targeted by API; Heitkamp Proposal Adopted

    Mar 30, 2015 | BNA Daily Environment Report

    By Rachel Leven
    
    
    A major energy group lobbied Capitol Hill offices to oppose a budget amendment that aimed to improve crude-by-rail safety, according to an e-mail obtained by Bloomberg BNA. The budget amendment, proposed by Sen. Maria Cantwell (D-Wash.), was one of at least five proposals that touched on the safety of transporting crude oil by rail ...

Full Text of Stories Below

Congressional Hearings

1. How the Hidden Cost of Federal Regulations Impact Small Businesses & Economic Growth

   Mar 30, 2015 | U.S. Senate Committee on Small Business & Entrepreneurship

   Location: East Baton Rouge Parish City Hall - Council Chamber, 222 St. Louis Street, Baton Rouge, LA 70802 / 9:30 AM
   

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2. Reducing the Federal Tax Burden for America’s Small Businesses

   Apr 2, 2015 | U.S. Senate Committee on Small Business & Entrepreneurship

   Location: Lafayette City Hall, 705 West University Ave., Lafayette, LA - Council Chambers / Time Not Available
   

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Industry and Association News

3. (ACC Mentioned) Corporations Find Lobbying Preferred Path to Influence

   Mar 27, 2015 | The Washington Post

   By Lee Drutman

   When the Supreme Court ruled in Citizens United that corporations could spend unlimited amounts on elections, Democrats and a few Republicans warned that the 2010 decision was going to open the floodgates for corporate money in politics. A million dollars here, a million there, and businesses could get rid of their stubborn opponents in Congress – and maybe cow a few others by threatening to go after them, too.

   Then-Sen. Russ Feingold, D-Wis., fretted that “the Court has given corporate money a breathtaking new role in federal campaigns.” Sen. John McCain, R-Ariz., called it the Supreme Court’s “worst decision ever.” President Barack Obama said the justices had “given a green light to a new stampede of special interest money in our politics.”

   But in the five years since the ruling, large corporations have mostly declined the generous offer. If you scour the names of super PAC contributors, with only a few minor exceptions, you don’t see the big blue-chip corporations that dominate Washington lobbying. Rather, the rise of super PACs empowered a new category of campaign kingpins: large individual donors such as Sheldon Adelson and Tom Steyer.

   There is a simple reason for this: For big corporations, multimillion-dollar electoral spending just doesn’t deliver the same return on investment that traditional inside-the-Beltway lobbying does. Worse, it could earn companies some enemies, too.

   Large companies wield impressive influence by flooding the Capitol, the White House and federal agencies with dozens of lobbyists, sometimes upward of 100, almost always from both sides of the political aisle. Many lobbyists enjoy access because they are well-liked and well-connected, often because they worked in government previously. Some have access because they are deeply knowledgeable about a particular subject and their expertise is valuable. Some are all of the above.

   Most lobbyists do have their clients’ political action committees contribute to campaigns, and many contribute themselves. But that doesn’t mean they like to. One lobbyist I interviewed for my new book said that “the biggest headache is dealing with the volume of calls and emails requesting money. If you have a PAC . . . everybody asks. At the end of the day, we have screens on who we’ll give to and how much we can give, and I apply those screens. But on any given day I’ll get 25 faxed invitations to Washington-based fundraisers.” Still, lobbyists know that their clients’ $5,000 campaign contributions are the small gifts that keep them in good standing, like bringing a bottle of wine to a party.

   But corporate managers are not in the business of paying more than they have to – for anything. In interviewing 60 corporate lobbyists, one of the things that originally surprised me was how frequently their bosses at company headquarters questioned the costs of political engagement. As one lobbyist told me: “We’re overhead, right? We’re not selling things. We’re a cost center. 1 / 8Management is 3 / 8 always eager to get a sense of the return on investment.”

   From 1998 onward, as far back as there is good data, corporations have consistently spent about 13 times more on lobbying than they have on campaign contributions. That’s not to say they don’t spend on campaigns. In the 2013-14 cycle, corporations, trade associations and business associations spent a combined $381 million through their political action committees. But that’s small potatoes compared with the giant $5.2 billion pot roast of reported corporate lobbying expenses over this period. And about half of lobbying doesn’t even get reported.

   Lobbying offers a much better return than election spending because real power lies in influencing how policymakers think about the world, not in getting them elected. Lawmakers’ staffers, who are the key policymakers in most offices, are smart but young. They are often inexperienced and stretched far too thin, trying to understand many complicated subjects with limited time. Large corporations that hire many lobbyists can overwhelm offices by “helping” them make sense of the issues.

   Staffers may know that the information is biased, but they just don’t have the time do additional homework. And besides, if there were another view out there, wouldn’t those advocates send in their lobbyists, too? On many issues, though, there is no other side – or at least no other side with anywhere near the same resources as big corporations. By my count, corporations and their associations spend $34 on lobbying for every $1 that labor unions and groups representing diffuse interests, such as citizens and consumers, spend combined. That ratio is up from 22 to 1 in 1998.

   In many cases, corporate lobbyists also serve as external support staff to help congressional staffers do their jobs, providing what Richard Hall and Alan Deardorff have called a “legislative subsidy.” Lobbyists give aides new policy ideas they can take to their bosses. And they are only too happy to draft legislation for them. Drafting legislation, after all, is hard work and requires a level of legal knowledge and precision that takes years to acquire.

   Consider the great Cromnibus of 2014, which included a provision that weakened some of the Dodd-Frank financial regulations. As was widely reported at the time, Citigroup lobbyists wrote most of the legislative language in that provision. But since only members of Congress can introduce legislation, Rep. Kevin Yoder, R-Kan., put his name on the original standalone bill that got folded into the Cromnibus.

   More recently, a bill to update federal regulation of toxic substances was outed as the creation of chemical-industry lobbyists. Reporters found that the bill was drafted on a version of Microsoft Word that belonged to the American Chemistry Council.

   Moreover, as corporations have steadily increased their investments in lobbying, they’ve siphoned more and more of the best and most experienced policy minds out of the public sector and into the private sector. As one lobbyist I interviewed put it, “One of the big things that’s wrong with the system is that somebody finally learns their job and then they have to move on, so you have a bunch of young folks who turn to lobbyists to figure out their jobs.”

   All in all, it’s a pretty good situation for the biggest corporations. Why upset that with a risky strategy that carries uncertain rewards?

   Pouring millions into a campaign or a super PAC is risky for two reasons. First, it could create unnecessary enemies. If the candidate you opposed wins despite your efforts, you’ve just made somebody mad at you. Likewise, if you give big to a Republican or Democratic super PAC, you’ve just angered an entire party. Effective corporate lobbying operations always have more friends than they need, on both sides of the political aisle. Ineffective ones make enemies.

   Second, hefty election spending runs the risk of upsetting consumers outside the Beltway. If some of your customers are Democrats and some are Republicans, a really big check could be more trouble than it’s worth. Target learned this when it gave $150,000 to a group supporting conservative Tom Emmer in the 2010 Minnesota gubernatorial race, alienating its many customers who opposed Emmer’s anti-gay-marriage stance.

   This reluctance may not last forever. As party leaders attempt to raise ever more campaign cash, they will be putting more pressure on corporations to write bigger checks. And as “dark money” 501(c)(4) groups begin to eclipse more-transparent super PACs (which have to disclose their donors), it will become easier for big corporations to give more without worrying about publicity. Arguably, this is already starting to happen.

   Still, the fact that corporations have been slow to dive into campaign funding tells us that they don’t see politics as their primary source of influence. They get much more bang for their billions through day-to-day lobbying.

   Lee Drutman, a senior fellow in the political reform program at New America, is the author of “The Business of America Is Lobbying: How Corporations Became Politicized and Politics Became More Corporate.”

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Chemical Management News

4. (ACC Mentioned) Reader View: A Toxic Shell Game: New Mexico Deserves Better

   Mar 28, 2015 | Santa Fe New Mexican

   By Sofia Martinez & Richard Moore

   A decade of pressure by parents, doctors, scientists and state governments has created momentum to finally fix the broken federal law governing chemicals used in commerce, the Toxic Substances Control Act of 1976, which has allowed thousands of hazardous and untested chemicals to be widely used in everyday consumer products.

   Unfortunately, reform of the act, which must be updated to protect the lives of millions from harmful chemicals, has now been hijacked by the chemical industry and its allies in Congress, after the chemical industry financed millions of dollars in the latest election cycle for the re-election campaign of Sen. Tom Udall and many others in Congress.

   A proposal by Udall and Sen. David Vitter, R-La., claims to be a step toward fixing the law. In reality, the bill would delay action on hazardous chemicals even further and give the chemical industry a free pass to continue endangering our children. The grave reality is the bill will not address legacy contaminants and the many environmental justice communities fighting off a toxic takeover. The legacy contaminants are responsible for the disproportionate impact on human health, the destruction of our water systems, the increase in greenhouse gas emissions and the potential for chemical disasters.

   While Udall has said, “EPA has lacked the tools to protect our most vulnerable — infants, pregnant women, children and the elderly,” he fails to mention the disastrous impact the bill would have on the nation’s 3.8 million people living next to many of these facilities, including facilities in New Mexico. The gaping loopholes in the proposed bill are all by design. MSNBC on March 17 reported findings that the Udall-Vitter bill was in part written by the American Chemistry Council, the chemical industry lobby that has long opposed reforms to the act.

   As reported by The New York Times on March 6, the council “spent more than $4 million during the 2014 election cycle on television and radio spots to help their allies in Congress,” including Udall. According to the article, “Mr. Udall had never before received a contribution from the Chemistry Council,” but during the last election cycle, the industry “donated tens of thousands of dollars to his campaigns and sponsored a television ad that praised his leadership.”

   Although the bill proposes some needed improvements to the law, at the same time it would create new barriers to federal action and strip states of their right to restrict hazardous chemicals even if the EPA isn’t doing anything.

   New Mexicans can now buy furniture, televisions, infant formula, baby bottles, baby food and many other products made without highly toxic chemicals like bisphenol-A and several polybrominated diphenyl ethers because of reforms enacted by other states that caused product manufacturers to broadly phase out these toxic chemicals from their products sold nationwide. Today, New Mexico children and families are safer because of these changes.

   While the attorneys general of Massachusetts and California have publicly opposed the proposed legislation, New Mexico Attorney General Hector Balderas has yet to provide public statement on the impacts the bill would have in New Mexico. Our state currently has authority under the Unfair Trade Practices Act and other state law to protect New Mexicans from exposure to toxic chemicals in commerce, better than the Udall-Vitter bill would protect us. Now is a crucial moment for the New Mexico attorney general to utilize existing state authority to protect New Mexicans from toxic chemical exposure.

   The proposed Udall-Vitter system would require the EPA to initially review just 10 out of more than 84,000 chemicals in commerce, with no requirements or deadlines for adopting actual restrictions, using a process that will in practice take at least seven to 15 years to complete.

   Bottom line: If the Udall-Vitter bill is enacted, the EPA would still not be able to implement restrictions on even a handful of dangerous chemicals for at least seven years (and likely not for much longer), and states would immediately be blocked from acting.

   That’s a pretty sweet deal for the chemical industry.

   We know the act must be reformed. But giving away the states’ ability to protect residents and administer change, while creating new barriers to federal action, in exchange for minimal action by the EPA on a handful of chemicals isn’t necessary compromise, it’s bowing down to the chemical industry.

   Fortunately, there is still time for Udall to fix these critical flaws and demonstrate that he truly has the interests of New Mexico’s families, communities and workers at heart.

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5. (ACC Mentioned) It’s Time to Understand the Science Behind BPA

   Mar 30, 2015 | Tuscon - Arizona Daily Star

   By Michael Roizen, M.D., & Mehmet Oz, M.D.

   Do’s & Don’ts Here’s what you can do: Although BPA is in many products you’re in contact with every day, and alternative chemicals from the same bisphenol family (bisphenol B, C, E, F, G, M, P, PH, S, TMC and Z) used in many plastics labeled “BPA-free” may have similar effects, these strategies can help you reduce your exposure: 1. Eat fresh instead of canned fruit. Ditto for veggies.

   Do’s and Don’ts 2. Don’t heat/microwave food or drinks in plastic containers. Heat speeds the transfer of BPA from plastics into edibles. Store food, especially acidic foods like tomato sauce, in glass or uncoated metal containers. 3. Say “no thanks” to receipts, tickets and anything else printed on thermal paper. If you take one, wash your hands. BPA may be absorbed through the skin and can hitchhike from your fingers into your body when you eat. 4. Avoid plastic food packaging whenever possible to reduce your exposure, too.

   Proponents of BPA (the ubiquitous chemical bisphenol-A) are fueling a science war. To counter the growing sentiment that BPA is harmful, chemical-industry lobbyists recently launched a splashy advertising campaign asking consumers to “listen to the science” about BPA. We agree! But why would proponents of something that is now judged too toxic for pregnant mothers and babies tell you to look at the science?

   Well, let’s look at the science.

   Where it is found: BPA is used to make strong, transparent plastics for food storage and packaging. It’s in the thin, slightly powdery coating on the thermal paper used for most cash-register receipts. It’s used in the epoxy resins that line most food cans and in some fire retardants in electronics.

   What the chemical industry says: The American Chemistry Council is correct that the Food and Drug Administration and the European Food Safety Authority say BPA is safe at the levels most of us are exposed to.

   What we say: The FDA and EFSA haven’t yet taken into account a growing body of research suggesting that even at low levels, repeated exposure to BPA can change your endocrine functions (BPA is a hormone disruptor) and have other long-lasting effects on developing fetuses and infants, as well as damaging sperm quality. Other research is even more troubling.

   What nearly 100 human studies have found: Everyday BPA exposure is associated with troubling and increasingly common health issues such as behavior and reproductive problems; high blood pressure; polycystic ovarian syndrome; and weight-related problems, such as diabetes.A brand-new study from New Jersey’s Rowan University School of Osteopathic Medicine has found an association between BPA levels in children and risk for autism spectrum disorder.A recent lab study from the University of Houston found that exposure to BPA used as flame-retardants in computers, cellphones and other electronics may be linked to weight gain.Another new study puts the health-care cost of obesity related to BPA at more than $1.5 billiondollars over several decades.

   Those who know agree: When Newsweek recently interviewed 20 prominent scientists who research BPA, the majority said it’s likely the chemical is linked to all of those health problems and to several forms of cancer as well, though more study is needed.

   How does BPA cause trouble? When it gets into living cells, BPA is an endocrine disruptor. Not only does that mess with your metabolism and lead to weight gain, it also acts like estrogen and may have a particularly strong effect on fetal sexual development. It also might have an effect on brain development given its ability to change the activation of genes: Animal studies — and some research in children — suggest that it might increase the risk for aggression and anxiety.

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6. TSCA Reform Advocates Eye State-EPA Models To Guide Preemption Debate

   Mar 27, 2015 | InsideEPA

   By Bridget DiCosmo

   Proponents of reforming the Toxic Substances Control Act (TSCA) are weighing existing legislative models to help inform how to structure the bill's provisions on EPA and state partnerships on chemicals management and the extent to which the measure should preempt state programs -- a major point of contention in the reform debate.

   During a recent hearing of the Senate Environment & Public Works Committee (EPW) on a revised bipartisan TSCA reform bill introduced this month by Sens. David Vitter (R-LA) and Tom Udall (D-NM), Sen. Tom Carper (D-DE), raised the issue of possible legislative models for managing the balance between EPA and states. Disputes over the extent of preemption have long served as a central hurdle in advancing a toxics law reform bill.

   For example, Carper said to Maryland Attorney General (AG) Brian Frosh (D) at the March 18 hearing that lawmakers when crafting the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law in 2010 by President Obama, "were able to find some consensus" on preemption with regard to charter banks.

   The banking law says state consumer financial laws are preempted only where its application would have a discriminatory effect on national banks as compared to state-chartered banks; where the state law would significantly interfere with the national bank's authority; or where otherwise preempted by federal laws.

   In response, Frosh said, "We're looking at models in other statutes," pointing out that the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), the federal pesticide law, "for example, has a role for states."

   Under FIFRA, states may regulate sale or use of any FIFRA-registered pesticide to the extent the rule does not permit any sale or use otherwise federally prohibited, promulgate any labeling requirements different from those required by the law, and provide for "additional uses" of a pesticide if they can demonstrate "special local needs."

   Asked about the potential for using existing laws as a model for resolving how to handle EPA-state partnerships in TSCA reform, one state official says, "I think we will be involved in some discussions to figure that out."

   Meanwhile, a source tracking the issue says that Sen. Dianne Feinstein (D-CA) is readying legislation to help ensure cosmetics safety and give the Food & Drug Administration more authority over cosmetics products, adding that such a bill may also address the preemption issue, offering another potential model for a TSCA measure.

   And a spokeswoman for the Massachusetts' AG Martha Mary Coakley (D) says that a competing TSCA reform bill introduced this month by Senate EPW ranking member Barbara Boxer (D-CA) and Edward Markey (D-MA) "represents a solid model for TSCA reform by allowing states to co-enforce federal environmental protections and to adopt health and safety laws to protect residents against chemical risks within their borders," and that the AG will continue to examine preemption language when considering its position on TSCA bills moving forward.

   State Preemption

   Some stakeholders have suggested that giving the chemical sector a long-sought "gift" of sweeping preemption of state chemical programs as part of TSCA reform could secure the sector's backing for a comprehensive industry fee program that would amply fund a robust new EPA chemicals program created by reform.

   Other observers have floated the possibility of punting the fight over preemption language until the very end of the TSCA reform debate, resolving all other issues with a bill before addressing it.

   Preemption is one of the main issues in the TSCA reform debate that Boxer, echoed by other committee Democrats, highlighted during the recent EPW hearing as a "fatal flaw" of the bipartisan Vitter-Udall bill S. 697, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act after the late Sen. Frank Lautenberg (D-NJ), who had worked on an unsuccessful bipartisan TSCA reform bill with Vitter in 2013.

   That measure stalled in the Senate environment panel largely due to preemption concerns raised by Boxer, who was EPW chairman at the time and feared the bill would block state chemicals programs.

   Vitter then worked with Udall to revise the legislation, introducing the new bill March 10. In addition to Vitter and Udall, the bill at press time had the support of nine Democrats and nine Republicans.

   In response, Boxer and Markey introduced their counter-proposal March 12, with one co-sponsor, Sen. Bernie Sanders (I-VT). The bill does not allow any preemption of existing or future state toxics programs, and would set a "safety standard" for EPA to review chemicals based on reasonable certainty of no harm, as opposed to the "unreasonable risk" standard in the Vitter-Udall bill, among other differences.

   At the March 18 hearing, Democrats highlighted two major concerns with S. 697's preemption language: that it would restrict states from enacting identical chemical management rules, and that it would block existing state chemicals rules when EPA launches a safety assessment for a chemical it deems "high-priority" under the prioritization scheme that the bill would establish.

   Opponents say the language would block states' ability to be "co-enforcers" of the law and would leave a potential seven-year regulatory gap until EPA issues a final rule during which no chemical restrictions would apply.

   EPA's toxics chief, Jim Jones, testified at the hearing that the agency is looking "very hard" at the preemption language, while suggesting various other changes to the bill.

   Safety Standard

   Meanwhile, Feinstein and Sen. Patrick Leahy (D-VT) in a recently introduced bill to strengthen food product labeling requirements for bisphenol-A would use the same safety standard language as in the Boxer-Markey bill.

   One environmentalist says that the approach in the Boxer and Feinstein measures is necessary for any TSCA reform legislation given that the safety standard as outlined in the Udall-Vitter bill is largely "untested."

   That language, which specifies "reasonable certainty that no harm will result from aggregate exposure to Bisphenol A through food containers or other items . . ." stems from the Food Quality Protection Act (FQPA), and is also in the Boxer-Markey bill. But critics of the Vitter Udall bill say that its requirement that EPA determine that chemicals do not pose "unreasonable risk of harm" -- which mirrors the current TSCA but strips language that EPA find the "least burdensome" alternative to ensure chemicals meet the standard is untested and therefore uncertain.

   But an industry source notes that the "FQPA standard does not work for chemicals in general," saying it was adopted residues on food -- chemicals subject to registration under FIFRA and intended to be toxic under certain conditions. "Most importantly, the terms of the registration spell out and control the conditions of exposure," the source says, adding, "You can't do that for a chemical in general use."

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7. Manufacturers of Six Biodiesels Must Prepare To File Data in 2016 as EPA Withdraws Rule

   Mar 30, 2015 | BNA Daily Environment Report

   By Pat Rizzuto

   Manufacturers of six biobased diesel chemicals must prepare to provide the Environmental Protection Agency with information in 2016 about how their chemicals are processed and used because the agency is withdrawing on March 30 a final rule that exempted manufacturers from this requirement.

   Companies, including American Biodiesel Inc., Archer Daniels Midland Co., Cargill Inc., Minnesota Soybean Processors and FutureFuel Corp., are among the manufacturers of these high-production volume chemicals.

   The EPA withheld the national production volumes for some of these chemicals to protect confidential business information, but most were produced in the hundreds of millions of pounds in 2011. Manufacturers of one biodiesel chemical made from soybeans produced more than 3 billion pounds of that compound that year.

   At issue is whether manufacturers of the six biobased diesel chemicals must report processing and use information for the compounds as required under the Chemical Data Reporting (CDR) rule.

   Manufacturers of comparable petroleum-based chemicals already are exempted from filing processing and use information.

   EPA: Information of Low Interest

   In a direct final rule published Jan. 27, the agency said processing and use information for the six bio-based diesel chemicals was of “low current interest” (80 Fed. Reg. 4482).

   The six chemicals are:

   • tallow, methyl ester (Chemical Abstract Service No. 61788-61-2);

   • soy oil, methyl ester (CAS No. 67784-80-9);

   • canola oil, methyl ester (CAS No. 129828-16-6);

   • fatty acids, corn-oil, methyl esters (CAS No. 515152-40-6);

   • fatty acids, C16-18 and C18-unsaturated, methyl esters (CAS No. 67762-38-3); and

   • fatty acids, C14-18 and C16-18-unsaturated, methyl esters (CAS No. 67762-26-9).

   Standard Regulatory Procedure

   The agency issued the direct final rule in response to a regulatory petition filed by the Biobased and Renewable Products Advocacy Group (BRAG) in 2014 (204 DEN A-17, 10/22/14).

   The agency is withdrawing the direct final rule because of procedures it must follow when issuing such regulations. If the EPA receives an adverse comment or a notice of someone's intent to file an adverse comment, the agency must withdraw the direct final rule and reissue it as a proposed rule subject to notice and comment.

   A man named Gary Valasek, who didn't provide an institutional affiliation, filed a comment citing scientific questions and potential concerns researchers have published about biodiesels and the chemicals they break down into. The agency determined the letter constituted an adverse comment and therefore withdrew the direct final rule.

   Proposed Rule to Be Published Soon

   A proposed rule that would exempt the six biodiesel chemicals from filing the same information soon will be published in the Federal Register, the agency said in its March 30 notice.

   Kathleen Roberts, BRAG's executive director, told Bloomberg BNA she was disappointed in the withdrawal.

   BRAG will encourage the agency to work as quickly as possible to issue the proposed rule, receive comments and issue a final rule that would exempt manufacturers of the six chemicals from the requirement to file processing and use information, she said.

   In the meantime, however, manufacturers of the six chemicals will need to prepare the processing and use information for submission during the 2016 CDR reporting period, which runs June 1, 2016, to Sept. 30, 2016, Roberts said.

   Regulatory Parity Said at Stake

   Rina Singh, senior director of policy at the Biotechnology Industry Organization, told Bloomberg BNA the principle at stake is regulatory parity.

   Biobased chemicals shouldn't be required to meet different regulatory requirements than their petroleum-based counterparts, she said.

   BIO will join BRAG in urging the agency to proceed with this exemption as quickly as possible, Singh said.

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Chemical Security News

8. House Panel Probes Chemical Board's Move to Consolidate Executive Authority

   Mar 30, 2015 | BNA Daily Environment Report

   By Robert Iafolla

   The House panel with jurisdiction over the Chemical Safety and Hazard Investigation Board asked the agency for information on controversial changes to its governance structure in a March 27 letter, signaling continued congressional scrutiny despite the resignation of its embattled chairman.

   Bipartisan leaders of the House Committee on Energy and Commerce inquired about a recent move that consolidated authority in the chairman's office over personnel, spending, board meetings, communications, investigations and general administration of the agency.

   The committee sent its request to Chemical Safety Board members Mark Griffon, Manuel Ehrlich Jr. and Richard Engler. The lawmakers didn't include Rafael Moure-Eraso, who resigned his post as chairman under White House pressure March 26 but apparently has stayed at the agency as a board member (59 DEN A-6, 3/27/15).

   “While this resignation is a significant development, we seek to ensure new board leadership will appropriately address remaining challenges to the proper functioning of this agency,” the lawmakers told the three board members.

   Spotlight on CSB

   The House Committee on Oversight and Government Reform has been investigating the CSB's management issues connected to low employee morale, staff attrition and delayed investigations (43 DEN A-21, 3/5/15).

   Congressional pressure on the agency has grown since Moure-Eraso and Ehrlich pushed the governance motion through during a January public meeting.

   Griffon, who had never seen the motion before the meeting, tried to block the vote. Engler, who had already been confirmed, officially joined the board just days later (26 DEN B-1, 2/9/15).

   The Energy and Commerce Committee's letter included a series of detailed questions about the governance motion and the authority of the chairman.

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9. Chemical Safety & Hazard Investigation Board Chairman Steps Down

   Mar 27, 2015 | Chemical & Engineering News

   By Glenn Hess

   The chairman of the Chemical Safety & Hazard Investigation Board (CSB) has resigned at the request of the White House. Members of Congress had called on President Barack Obama to fire Rafael Moure-Eraso, charging that he mismanaged the small independent agency that investigates accidents at chemical facilities and refineries.

   Moure-Eraso, who had just three months left in his five-year term as head of CSB, announced his resignation to staff in an e-mail sent on Thursday evening. “Effective March 26, 2015, at 5:00 PM, I have submitted my resignation as Chairperson of the CSB to President Barack Obama. It has been a privilege to serve the agency since June 2010,” the e-mail says.

   “My wishes are for the continued success and productivity of the Board. I am forever grateful for the hard work of the agency that has led to so many successes over the past five years,” Moure-Eraso writes.

   His tenure was marked by turmoil at the agency and charges that he delayed investigations and created a toxic work environment that led to low employee morale and staff attrition.

   Moure-Eraso’s departure was welcome news on Capitol Hill.

   “The Chemical Safety Board is in desperate need of new leadership and we are pleased that the President has recognized the importance of making key changes,” say Reps. Jason E. Chaffetz (R-Utah) and Elijah E. Cummings (D-Md.), the chairman and ranking minority member, respectively, of the House of Representatives’ Committee on Oversight & Government Reform, in a joint statement.

   “Dr. Moure-Eraso’s mismanagement of the CSB, abuse of power, employee retaliation, and lack of honesty in his communications with Congress are among the many reasons why his resignation is the right next step for this federal agency,” the lawmakers add.

   The five-member CSB panel is left with three Senate-confirmed members. Obama has nominated Vanessa Allen Sutherland, a Department of Transportation lawyer, to become the board’s next chief. Obama has also nominated chemist Kristen Kulinowski, a staff member at think tank Science & Technology Policy Institute, to replace Mark Griffon, a CSB member whose term expires in June.

   Senate confirmation hearings have not been scheduled for either nominee.

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10. Limiting Flammable Gas Volume on Planes Drove Butane Fuel Cell Rule, PHMSA Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Robert Iafolla

    In response to a court order, a federal safety regulator further explained that it barred flammable-gas fuel cells in checked airline baggage due to concerns about such gases causing or contributing to fires in inaccessible cargo compartments, according to a Federal Register notice scheduled for publication March 30.

    The Pipeline and Hazardous Materials Safety Administration said it blocked gas fuel cells from crew and passengers’ checked baggage even though it allows medical devices and toiletries that contains aerosols because it wants to control the cumulative amount of flammable gases on board.

    The amount of butane in a fuel cell—primarily used to recharge portable electronic devices—is about twice the amount used in a typical aerosol can, PHMSA said.

    “Given the amount of electronic devices that passengers typically travel with, the cumulative volume of butane from fuel cell cartridges that passengers could bring aboard an aircraft is a concern,” PHMSA said. “As a result, PHMSA has determined there is too much risk in allowing fuel cell cartridges in checked baggage in addition to the currently authorized flammable aerosols when stowed in inaccessible cargo compartments on passenger-carrying aircraft.”

    Legal Challenge Cited

    PHMSA provided further rationale for its rule pursuant to a January 2014 ruling from the U.S. Court of Appeals for the District of Columbia Circuit (Lilliputian Says. v. PHMSA, 741 F.3d 1309 (D.C. Cir. 2014)).

    Lilliputian Systems Inc., an apparently defunct Massachusetts company that manufactured butane fuel cells, challenged the fuel-cell rule. PHMSA denied the company's administrative appeal but amended the rule in 2013 .

    The company then pressed its challenge in the D.C. Circuit. The court's order called on PHMSA to properly explain its rationale for the prohibition, but it didn't suspend or repeal the rule.

    At the time of the ruling, a technology analyst said that low consumer demand is a greater challenge to fuel cell companies than PHMSA's baggage rule. Electrical outlets are available in airports and other public places where people recharge their electronic devices, limiting the demand for fuel cells (22 DEN A-3, 2/3/14).

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Energy and Environment News

11. Most Oil, Gas Drillers Keep Fracking Chemicals Secret in FracFocus, EPA Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Mark Drajem

    Most oil and gas drillers kept secret at least one chemical used in hydraulic fracturing, an analysis by the Environmental Protection Agency found, raising concerns among environmentalists about risks from unknown and possibly dangerous ingredients.

    The EPA scoured filings on the industry-backed FracFocus online registry and found 11 percent of ingredients used in fracking were deemed a business secret and not disclosed. The EPA said March 27 that 70 percent of wells examined used at least one chemical that was unidentified.

    “The fracking industry is hiding a lot of information about the chemicals they are using in our communities,” Kate Kiely, a spokeswoman for the Natural Resources Defense Council, said of the findings. “Even without that information, it is clear that there is widespread use of dangerous chemicals.”

    FracFocus has gained new importance because a rule for fracking on federal lands, released this month, requires drillers to use it to inform the public about the chemical ingredients (55 DEN A-14, 3/23/15).

    Environmental groups complain that the site is cumbersome and gives companies too much leeway to claim confidentiality.

    In fracking, or hydraulic fracturing, chemicals are mixed with sand and water and injected underground to free trapped oil and natural gas. The process has spurred a U.S. energy boom, while drawing complaints from residents and health groups that it can contaminate water supplies.

    Competition Cited as Confidentiality Reason

    Drilling-service companies say they should, for competitive reasons, be permitted to keep some of their recipe and ingredients secret.

    The overwhelming majority of the injected fluid, or 88 percent, is plain water. As much as 7.2 million gallons of water were used for each well fracked, the EPA said. Chemicals used include hydrochloric acid, methanol, ethylene glycol, guar gum and napthalene, according to the report.

    The EPA analyzed statements companies posted on FracFocus from early 2011 to early 2013 as part of its study.

    The agency had to compile the individual records in the website into a database and then analyze the results. It didn't study the dangers individual chemicals may pose to human health or the environment.

    “As part of our broader assessment, we will focus on toxicity,” said Tom Burke, an official in EPA's Office of Research. The amount of chemicals identified by EPA might not reflect the full amount because not all states require disclosure to FracFocus, he said.

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12. EPA: Nearly 700 Chemicals Used in Fracking

    Mar 27, 2015 | The Hill - E2 Wire

    By Timothy Cama

    The Environment Protection Agency on Friday released a new analysis that concludes almost 700 chemical additives are used in hydraulic fracturing for oil and natural gas.

    Ninety-eight percent of the fluid injected into wells is water mixed with sand, which is used to keep fractures open so that oil and gas can be removed from shale.

    But the EPA’s analysis released Friday provides a more comprehensive look at the remainder of the fracking chemicals, which the industry says are used to protect equipment, reduce bacteria and keep fluid flowing, among other things.

    The EPA’s analysis was based on more than two years of data from FracFocus, an industry-backed website that fracking companies in 20 states must use to publicly disclose the chemicals they inject into wells.

    “Collectively, this report and the related products provide a detailed picture of the information available on chemicals and water use amounts, and we feel that this report will be a really important resource for states, industry and communities working to safeguard our drinking water resources,” Tom Burke, a research and development official at the EPA, told reporters Friday.
    

    The EPA’s researchers analyzed more than 30,000 disclosures from fracking operations.

    Hydrochloric acid, methanol, and hydrotreated light petroleum distillates were the most common additives the EPA found. They were reported in 65 percent of the disclosures.

    The median number of chemical additives per fracking job was 14, EPA said.

    The chemicals used in fracking are one of the top concerns for environmentalists, health advocates and others who are opposed to the practice or want it more strictly regulated.

    The Friday report was one piece of a wide-ranging assessment the EPA is conducting into fracking. The practice is exempt from many environmental rules under a 2005 law, but the EPA can still conduct research into it.

    The analysis does not make any judgments about the chemicals or their safety.

    “This report really focuses on the first step, and that is collecting information about what is used and the volumes of what is used,” Burke said when asked about whether the chemicals are dangerous. “As part of our broader assessment, we will definitely be focusing on toxicity, though.”

    Researchers also found that fracking can be a water-intensive operation.

    The files the EPA analyzed found that each well required between 30,000 and 7.2 million gallons of water.

    And, because of the limits of FracFocus, such as the states that do not use it and frackers’ ability to keep certain chemicals confidential, Burke warned that the EPA could be missing a lot.

    “We think that the information on chemicals, proppants and cumulative water volumes from FracFocus 1.0 may actually be an underestimate of what’s actually used in the United States during this time period because not all states are actually required to report chemicals,” he said.

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13. Advocates Say EPA FracFocus Analysis Shows Need For Federal Database

    Mar 27, 2015 | InsideEPA

    By Bridget DiCosmo

    Environmentalists are saying that EPA's analysis of data it took from the state-run FracFocus database for disclosure of chemicals used in hydraulic fracturing fluid underscores the need for a federal mandatory disclosure database, because the agency found gaps in the data where industry claimed it was confidential business information (CBI).

    While the analysis released March 27 “does provide a valuable snapshot” into what drillers were using in fracking fluid in wells before March 1, 2013, the cutoff date the agency uses, the information withheld as CBI indicates that “until EPA decides to do a national, mandatory database” a complete analysis will be difficult to obtain, says an environmentalist. Advocates and some Democrats have long urged EPA and other federal agencies to issue stricter rules for fracking operations.

    The Interior Department's Bureau of Land Management (BLM) recently finalized a regulation governing fracking on public lands which relies on FracFocus as the main vehicle for its mandatory chemical disclosure, spurring environmentalists to criticize BLM's reliance on the voluntary state-led database.

    Advocates also have a suit pending in federal district court against EPA over its failure to respond to their petition to subject the oil and gas industry to mandatory Toxic Release Inventory (TRI) reporting requirements. EPA's response to the TRI petition could address at least some of the disclosure gaps environmental groups have raised concerns over, though advocates acknowledge it would not provide the well-by-well disclosure that a database like FracFocus does, as TRI has reporting thresholds below which industry does not have to report.

    But environmentalists have long raised concerns that FracFocus is a flawed database, and they are renewing those criticisms following EPA's analysis of data that fracking companies submitted to the first version of FracFocus, known as FracFocus 1.0 -- though the database has already been updated to 2.0.

    “The EPA conducted an analysis to better understand the chemicals and water used to hydraulically fracture oil and gas production wells in the United States and how chemical and water use vary in different locations across the country,” the agency says on its website.

    In a fact sheet on the analysis, EPA says the review will help inform its pending broader assessment of fracking's impacts on drinking water resources.

    EPA in the report says that in general, fracking fluids were found to be 88 percent water by mass, 10 percent quartz, used as proppants, or substances used to “prop” open the fissures during the fracking process, and less than 1 percent fracking fluid chemicals, or additives. “The median number of additive ingredients per disclosure was 14,” an EPA fact sheet on the report says. Three substances, hydrochloric acid, methanol, and hydrotreated light petroleum distillates were included in more than 65 percent of all disclosures in the report, EPA says.

    The ratio of water to additives works out to “pretty low proof” based on the relative concentrations of the chemical substances, EPA's Tom Burke, acting deputy assistant administrator for EPA's Office of Research & Development, which is conducting the bulk of the fracking study, said during a March 27 call with reporters.

    Confidential Information

    But EPA in the report also notes that 70 of the disclosures analyzed included at least one ingredient claimed as CBI, and withheld, and that 11 percent of the ingredient records were identified as CBI.

    The CBI issue has been a significant talking point with environmentalists who have been critical of FracFocus, though they acknowledge the database has undergone a number of improvements in its last two updates, which are not reflected in EPA's report. Environmentalists are now citing the release of the FracFocus analysis as underscoring their criticisms of that database and justifying their calls for a federal, mandatory database.

    “At the heart of our problem with FracFocus is that it gives too much credence to the ability to make these CBI claims,” a second environmentalist says, noting that EPA's report reflects that one in nine chemicals reported is withheld as CBI.

    A third environmentalist says it is “important to note that EPA indicates it’s difficult to extract and use FracFocus data -- one of several concerns we have about relying on this system for collecting this information.”

    Environmentalists sued EPA in January in the U.S. District Court for the District of Columbia to force a decision on their October 2012 petition seeking to add the oil and gas drilling sector to the TRI.

    Whether to subject the sector to TRI reporting mandates is an issue EPA struggled to resolve for more than a decade in part due to legal questions over whether drilling wells qualify as "facilities" subject to TRI reporting.

    EPA is due April 24 to file its answer in the suit, Environmental Integrity Project (EIP), et al., v. EPA, et al. filed by EIP and nine other groups that signed on to the suit including the Natural Resources Defense Council and the Clean Air Council. The second environmentalist notes that while TRI mandates that only chemicals exceeding 25,000 pounds or more of the toxic chemical in the reporting year for manufacturers, or processors, and 10,000 pounds or more for chemicals otherwise used must be reported, EPA's FracFocus report “could be relevant” to the petition because it highlights the current gaps in disclosure for the industry

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14. BLM Advances Leasing Plan for Sensitive Colo. Landscape

    Mar 27, 2015 | E&E News PM

    By Scott Streater

    The Obama administration is finalizing an oil and natural gas master leasing plan that would include drilling restrictions designed to protect sensitive wildlife across hundreds of thousands of acres in northwest Colorado.

    The Bureau of Land Management today released a final environmental impact statement (EIS) analyzing proposed amendments to the White River Field Office's resource management plan (RMP) to include, among other things, the so-called Dinosaur Trail MLP.

    The amendments to the RMP would add mitigation measures designed to reduce the impacts of an expected increase of oil and gas activity across 1.7 million acres of leasable federal mineral estate in Rio Blanco County, southern Moffat County and a small part of northern Garfield County. The amendments also identify 137,650 acres that would be managed for wilderness characteristics.

    The Dinosaur Trail MLP covers 422,600 acres of public land within the White River Field Office and is designed to guide oil and gas drilling to areas with the least natural resource conflicts. BLM based the plan on a future development scenario of 15,000 new oil and gas wells in the region over the next 20 years.

    Under such a scenario, drilling in the area could produce more than 7.5 trillion cubic feet of natural gas -- enough to heat 7.5 million homes for 15 years -- and lead to a net increase of more than 10,000 jobs in northwestern Colorado, according to BLM.

    The final EIS with the master leasing plan was published in today's Federal Register, kicking off a 30-day protest period running through April 27. The agency plans to issue a record of decision approving the RMP amendments with the Dinosaur Trail MLP by the end of this year, said Vanessa Lacayo, a BLM spokeswoman in Lakewood, Colo.

    The goal of the Dinosaur Trail MLP is not to stop development, BLM officials said, but to minimize impacts to natural resources, including the nearby Dinosaur National Monument.

    "We have world class oil and gas resources under world class wildlife habitat, and this plan provides unique solutions to manage both of those resources," said Kent Walter, manager of BLM's White River Field Office in Meeker, Colo.

    The plan would utilize an incentive-based approach that rewards operators that limit surface disturbance by using directional drilling techniques and siting multiple wells on single well pads.

    "Operators who work with us to keep disturbance below specified thresholds will be eligible for exceptions to limitations on the time of year drilling is allowed," Walter said.

    But the oil and gas industry says it's concerned about the impact of the proposed amendments to domestic energy production on public land in the region.

    Kathleen Sgamma, vice president of government and public affairs for the Denver-based Western Energy Alliance, said she has not read the final EIS in detail. But based on the draft plan initially released in 2012, she said she fears it's just another attempt by the Obama administration to limit development of fossil fuels on federal land.

    "We remain concerned about the large acreage that's being designated as no surface occupancy and other restrictions that will make it more difficult to operate on public lands on the Western slope," Sgamma said today in a brief interview.

    The proposed MLP and White River RMP amendments are strongly supported by conservation groups and some local businesses in northwest Colorado.

    "The White River RMP amendment, through the Dinosaur Trail master leasing plan and identification and protection of wilderness-quality lands, shows that the BLM is using all of the tools in its toolbox to build meaningful multiple use," said Nada Culver, the Wilderness Society's senior director of agency policy and planning in Denver. "We see a commitment to conservation here that is a vital component of planning for energy development, especially considering the damage that 15,000 wells can do to wildlife and wild places."

    Dinosaur Trail is one of 16 MLPs the agency is crafting across millions of acres of public lands in Utah, Colorado, Wyoming and Montana that are a key part of the oil and gas leasing reforms the Obama administration rolled out in early 2010.

    But so far, only the Beaver Rim MLP covering about 150,000 acres in central Wyoming has been finalized and implemented, with BLM Director Neil Kornze and Wyoming Gov. Matt Mead (R) last year announcing the signing of a ROD that included the plan (Greenwire, June 26, 2014).

    The Dinosaur Trail MLP is the second one in Colorado to reach the final EIS stage.

    BLM in March 2014 released a final EIS for proposed amendments to the Kremmling Field Office RMP in north-central Colorado that includes the North Park MLP covering 390,000 acres of federal mineral estate.

    A record of decision has still not been signed for the North Park MLP, which would place "no surface occupancy" restrictions on 184,000 acres of federal land to protect greater sage grouse, mule deer and elk habitat, as well as timing restrictions on drilling operations covering 321,200 acres.

    MLPs are designed to identify areas "that possess a majority of federal interest with medium to high potential for oil and gas occurrence, and wherein industry has expressed an interest in leasing the area," according to today's final EIS. "Identification of the areas is being done to ensure orderly, effective, timely, and environmentally responsible leasing of federal oil and gas resources."

    Ellis Park, founder of Rangers for Our Lands, who once served as acting superintendent of Dinosaur National Monument, said the MLP is "an important step" to protecting the monument and other "treasured landscapes" in the region.

    "The Dinosaur Trail approach holds promise by allowing important oil and gas resources to be developed while protecting recreational resources, our night skies, America's public lands and a diverse local economy," Park said in a statement. "It's a vision that we embrace, and we'll be watching to ensure BLM implements the plan in a way that's good for Dinosaur National Monument."

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15. BLM Corrects Details in Hydraulic Fracturing Rule

    Mar 30, 2015 | BNA Daily Environment Report

    The Bureau of Land Management issued a correction to a couple of details in its final rule on hydraulic fracturing of oil and gas wells on federal and Indian lands. The correction changes two of the dates used to specify which wells are covered by certain regulations. The rule (RIN 1004-AE26) being corrected was published March 26 (80 Fed. Reg. 16,127; 56 DEN A-15, 3/24/15). The correction, to be published March 30, is available at http://bit.ly/1HXbnge.

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16. Energy Advisory Council Offers Ideas To Assist Oil, Gas Development in Arctic

    Mar 30, 2015 | BNA Daily Environment Report

    By Alan Kovski

    The essential technology and knowledge to find and develop U.S. oil and natural gas in the Arctic, including offshore sites, is available today, and the work can be accomplished while protecting the environment, a report released March 27 by an advisory group to the Energy Department said.

    “That said, there have been recent technology advancements that still need assessment and demonstration to gain acceptance by regulators and key stakeholders,” the report of DOE's National Petroleum Council's said.

    The report, “Arctic Potential: Realizing the Promise of U.S. Arctic Oil and Gas Resources ,” was developed in response to a request by Energy Secretary Ernest Moniz for a comprehensive study of what might be needed or available to enable prudent development of U.S. Arctic oil and gas resources.

    A study team that included more than 250 experts helped develop the 550-page report, with contributions from industry, government, nongovernmental organizations and native Alaskans. The council itself is composed primarily of industry executives.

    The report's mostly positive approach to Arctic oil and gas development drew criticism from an environmental group, the Natural Resources Defense Council.

    The U.S. shouldn't risk “a BP-style blowout in Arctic waters where we can't prevent, contain or clean up a catastrophic oil spill,” a statement from the group said.

    Recommendations Detailed

    The “Arctic Potential” report offered recommendations on analyses and demonstrations to validate technologies for improved well control and longer drilling seasons.

    It recommended evaluations and improvements in oil spill response technologies and better knowledge of Arctic species and their interactions with energy development.

    The report recommended flexible rather than purely prescriptive regulations. It said policies and regulations “should encourage innovation by providing for incorporation of technological advancements.”

    It urged review of lease terms with an eye to determining whether they include enough time for the work to be done in the difficult physical and slow regulatory circumstances of the Arctic.

    Better Infrastructure Wanted

    Limited infrastructure is a chronic issue for the Arctic and was noted in the report, which cited limited development of ports, airfields, roads, rail, communications networks and fuel and electricity delivery systems.

    “To promote prudent development, additional capacity is needed,” the report said.

    It also criticized such current policies as “limited access to federal lands for oil and gas transportation systems where no practical alternative exists.”

    The report said the potential economic benefits of more oil and gas potential are significant. It cited an estimate that U.S. offshore Arctic development would add about $145 billion in payroll for U.S. workers and $193 billion or more in combined local, state and federal government revenues over a 50-year period.

    Oil and gas property taxes for the North Slope Borough of Alaska have exceeded $180 million annually since 2000, representing about 60 percent of the local jurisdiction's annual operating budget, the NPC said.

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17. More Natural Gas Use Would Help Economy, Environment, Pennsylvania Lawmakers Told

    Mar 30, 2015 | BNA Daily Environment Report

    By Leslie A. Pappas

    Pennsylvania could grow its economy and even improve the environment by creating more incentives to increase the use of natural gas in fleet vehicles, manufacturing and other applications, a panel of business leaders told lawmakers at a forum March 27 in Pittsburgh.

    While discussion over Pennsylvania's Marcellus Shale deposits usually focuses on the “upstream” aspects of oil and gas operations, which refer to drilling and extraction, the “midstream” or “downstream” side of the natural gas business could make an even bigger impact on the state's economy, said Dennis Yablonsky, CEO of the Allegheny Conference on Community Development, an economic development organization based in Pittsburgh.

    “In our opinion, the midstream part of the business—the infrastructure, which is underdeveloped and still in its infancy here—is even bigger in my opinion job-wise, and economic impact-wise, than the upstream,” Yablonsky said during the forum. “And then the downstream—the use of gas in petrochemical facilities, in vehicles, for electricity, for heat—is even bigger than those other two.”

    House Speaker Mike Turzai (R-Allegheny) sponsored the forum to explore ways Pennsylvania could create more regional demand for natural gas in manufacturing, petrochemicals and fleet conversions.

    “We have a limited window to pursue use opportunity in Pennsylvania,” he said. “We want to make sure that Pennsylvania creates demand here.”

    Encourage Fleet Conversions

    Encouraging the conversion of fleets of buses, trash trucks and other heavy-duty vehicles to natural gas is one way to increase downstream demand, said Brett Barry, a senior policy advisor at Newport Beach, Calif.-based Clean Energy Fuels Corp. The company operates compressed natural gas (CNG) and liquefied natural gas (LNG) fueling stations and helps convert vehicle fleets from conventional fuels to natural gas.

    Barry suggested that lawmakers extend a state natural gas vehicle grant program, which offered grants to help defray the costs of converting heavy-duty vehicles to natural gas.

    Moreover, such conversions have the added benefit of displacing foreign oil, Barry said. “If we were to switch over all 18-wheelers to natural gas, we could cut our dependence on OPEC oil by over 80 percent.”

    Nick D'Andrea, director of state government affairs at delivery giant UPS, agreed that extending the grant incentives were important, and added that in the past, government programs in Pennsylvania spurred the company to deploy LNG and CNG vehicles and build stations in the state.

    “Pennsylvania really is our gateway to the Mid-Atlantic and to the northeast as far as alternative fuels,” with two $7.5 million LNG fueling stations in Mechanicsburg supporting 120 LNG tractors, and a $4.5 million CNG station under construction in New Stanton that will host 83 tractors and 65 package cars, he said.

    “That said…we really only have deployed tractors and package cars in areas where there have been incentives to do so,” D'Andrea said. “If not…we just won't do it.”

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18. FERC Asks Company to Consider New Route for Ohio Pipeline Project

    Mar 27, 2015 | E&E News PM

    Federal regulators have asked the developer of a planned natural gas pipeline in Ohio to reroute the project to avoid populated areas.

    The city of Green -- midway between Canton and Akron in northeast Ohio -- has asked that 103 miles of the $2 billion Nexus pipeline be moved away from southern Summit County and northern Stark County to less-populated southern Stark and Wayne counties.

    The Federal Energy Regulatory Commission filed a memo with Nexus Gas Transmission LLC asking the Texas-based company to consider Green's proposals.

    Spokesman Arthur Diestel said Nexus will consider the proposal and has already been looking for an alternate route.

    The original pipeline path was close to 4,517 homes and affected 67 acres of wetlands. The new path would bring the pipeline close to just 1,393 homes and affect just 26 acres of wetlands. In its filings, the city of Green characterized the original pipeline route as "hastily drawn and ill-conceived with no respect to the human and environmental concerns" (AP/Fuel Fix, March 27).

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19. EPA Wants States to Develop Own Plans For Power Plant Rule, General Counsel Says

    Mar 30, 2015 | BNA Daily Environment Report

    By Joyce E. Cutler

    The Environmental Protection Agency wants every state to develop its own plan to comply with carbon dioxide standards for power plants, rather than subjecting states to federal plans, Avi Garbow, the agency's general counsel, told a legal conference.

    “Make no mistake—the agency is doing everything it can to ensure there is no [federal implementation plan] in place for any state because all of the efforts we've been talking about [are] to ensure that every state remains in the driver's seat for submitting a plan,” Garbow said March 26 at the annual spring conference of the American Bar Association Section of Environment, Energy and Resources in San Francisco.

    The EPA this summer likely will release a draft federal implementation plan for the Clean Power Plan, “so at least states have an understanding of what the contours of that proposed FIP might look like as they give thought to their own plans,” Garbow said.

    The EPA Clean Power Plan (RIN 2060-AR33), proposed in June 2014, sets a unique carbon dioxide emissions rate for each state. States would develop their own plans to comply with the rule, and states that don't create their own plans would be subject to a federal plan. A final rule is expected this summer.

    The EPA expects the proposal to reduce carbon dioxide emissions from existing power plants by 30 percent from 2005 levels when it is fully implemented in 2030.

    McConnell Remarks Called ‘Scandalous.'

    Craig Segall, a senior staff attorney for the California Air Resources Board, called “scandalous” remarks by Senate Majority Leader Mitch McConnell (R-Ky.) that urged states to “carefully review the consequences before signing up for this deeply misguided plan” (54 DEN A-16, 3/20/15).

    “The notion that states should remove themselves from the driver's seat to being tied up in the trunk is not only unwise, it's foolish,” Segall said during the same panel discussion.

    Refusing to comply with the rule once it is finalized is a tactic that has been dubbed “just say no.” McConnell is the most prominent official to endorse the “just say no” effort, which was raised in a November 2014 Federalist Society white paper by Peter Glaser, Carroll W. McGuffey III and Hahnah Williams Gaines, attorneys at Troutman Sanders LLP. The paper questioned how stringent a federal implementation plan could be given that the EPA lacks statutory authority to require power plants to do more than improve how efficiently they operate (43 DEN A-1, 3/5/15).

    Segall said the EPA has drawn on states' experiences using cooperative federalism under the Clean Air Act. There is every reason to think the same essential approach of giving states carbon targets will be successful, which makes striking calls for states to “just say no,” Segall said.

    California Wants to Accelerate Progress

    CARB Chairman Mary D. Nichols told Bloomberg BNA that California has talked with the EPA about the Clean Power Plan, with EPA representatives “taking a lot of notes and nodding a lot of heads and indicating that they're listening to us. We feel very optimistic about a good outcome.”

    The state is pushing technologies as it proceeds with its greenhouse gas reduction goals, Nichols said on a separate panel.

    “Our goal is not just to continue what we're doing right now but to accelerate this progress” with a goal of an 80 percent greenhouse gas reduction below 1990 levels by 2050, she said.

    Nichols added, “We believe that we have the opportunity to export some of these ideas to others as well.”

    NRG Energy Inc., the nation's largest competitive power generation company, the second largest solar generator and fifth largest wind generator, sees opportunity in greenhouse gas reduction efforts, said David R. Hill, the company's executive vice president and general counsel.

    “We believe as a company our industry is going to be disrupted, and we do think it's going to be disrupted,” Hill said. “We'd actually like to be the ones that do it.”

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20. McCarthy Defends EPA Clean Power Plan, Rule to Regulate Mercury From Power Plants

    Mar 30, 2015 | BNA Daily Environment Report

    By Carolyn Whetzel

    Environmental Protection Agency Administrator Gina McCarthy dismissed claims by some energy companies and state officials who allege the proposed Clean Power Plan is an illegal attempt under the Clean Air Act to remake the nation's power sector.

    McCarthy defended the agency's effort to regulate carbon emissions from existing power plants and its final rule regulating mercury and other hazardous air pollutants from power plants, both of which are being legally challenged.

    Speaking at the ECO:nomics conference March 26 in Santa Barbara, Calif., McCarthy classified two lawsuits pending in federal appeals court that challenge the proposed Clean Power Plan rule as unprecedented attempts to prevent the EPA from completing the rulemaking (In re Murray Energy Corp., D.C. Cir., No. 14-1112, merits panel assigned, 3/18/15; West Virginia v. EPA, D.C. Cir., No. 14-1146, merits panel assigned, 3/18/15; 54 DEN A-2, 3/20/15).

    The administrator insisted the agency's move to regulate greenhouse gas emissions from power plants under Section 111(d) of the Clean Air Act is legally sound.

    “I am only following the direction of the Supreme Court,” which three times has given the agency authority to regulate carbon emissions from the largest sources, McCarthy said.

    “We've done outreach with this rule that has been enormously respectful of the states,” she said.

    Many states view the proposal as an opportunity, and “I think they'll grab it,” McCarthy said in response to a question about Senate Majority Leader Mitch McConnell's (R-Ky.) call to the states to not cooperate with the proposal (54 DEN A-16, 3/20/15).

    “I've got states and energy folks talking,” she said.

    States Have Freedom on Implementation

    McCarthy said the proposal doesn't dictate to the states how to reduce greenhouse gas emissions.

    “We're saying start where you are today, look at what's reasonable to achieve and then work with us,” she said, adding states have been working within the Clean Air Act framework for 45 years. “They know how to do this.”

    The EPA will work to address concerns raised among the 3.5 million comments submitted on the proposal, including the comments from utilities who worry the plan's interim emissions reduction targets for 2020 may disrupt electricity supplies.

    “We will always listen,” McCarthy said. “Anything we didn't consider that we should have” will be reviewed, and revisions are possible as long as they preserve the proposal's environmental benefits.

    From the audience, Philip Moeller, a commissioner of the Federal Energy Regulatory Commission who has questioned the Clean Power Plan's potential impact on electricity grids, asked McCarthy what role the commission should have in promulgating and implementing the rule.

    “The Clean Power Plan is your rule, but it will affect FERC,” Moeller said.

    FERC Ensures Reliability

    FERC's job is to ensure reliability, McCarthy said. “We want to make sure that you are confident that you are meeting your reliability obligations. I expect you'll be vocal and engaged.”

    As for the lawsuit pending the Supreme Court challenging the mercury rule, McCarthy said she was “a bit surprised” the court took up the issue of whether the Clean Air Act requires the EPA to consider cost when setting limits for toxic emissions from power plants (Michigan v. EPA, U.S., No. 14-46, argued, 3/25/15; 58 DEN A-1, 3/26/15).

    A decision against the EPA would be overturning the structure of the Clean Air Act needed to protect public health, she said.

    “The lower courts have spoken on this over and over again,” McCarthy said.

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21. Senate Passes Slimmed-Down Energy Efficiency Bill, Sends Measure to House

    Mar 30, 2015 | BNA Daily Environment Report

    By Ari Natter

    The Senate on March 27 passed a slimmed-down version of long-stalled energy efficiency legislation authored by Sens. Rob Portman (R-Ohio) and Jeanne Shaheen (D-N.H.).

    The bill (S. 535), approved by voice vote, includes measures that would loosen efficiency standards for grid-enabled water heaters, increase efficiency in government data centers and promote efficiency in commercial buildings.

    Portman and Shaheen still are advocating for passage of the full version of their bill (S. 720), which would repeal a provision in a 2007 energy law that requires the government to phase out the use of fossil fuels in federal buildings and includes a section addressing industrial energy efficiency.

    Exemption for Water Heaters

    The bill that passed the Senate on March 27, the Energy Efficiency Improvement Act, includes four provisions from S. 720 that the House passed in the 113th Congress (44 DEN A-1, 3/6/14).

    Among them is a measure that would exempt thermal storage water heaters from Energy Department efficiency standards slated to go into effect in April.

    The provision, backed by trade groups representing utilities such as Dominion Resources Inc. and American Electric Power, would allow the continued manufacturing of large capacity electric water heaters used by utilities in demand response programs that reduce energy demand during peak usage times.

    The bill also would require the Environmental Protection Agency to develop a voluntary Tenant Star program to promote energy efficiency in leased commercial buildings and would require that federally leased buildings without Energy Star labels benchmark and disclose their energy usage data “where practical,” according to a summary of the legislation.

    House Prospects

    The bill also would require federal agencies to coordinate with the DOE, the EPA and the White House to develop “an implementation strategy—that includes best practices, measurement, and verification techniques—for the maintenance, purchase, and use of energy-efficient and energy saving information technologies,” the summary said.

    The bill now goes to the House, where “it likely has sufficient support to pass,” according to a March 27 research note by ClearView Energy Partners, a Washington-based consulting firm.

    “This bill has garnered such widespread support because of a simple fact—it is good for the economy and good for the environment,” Portman said in a statement. “It's part of an energy plan for America that can help bring the jobs back, help fix our trade deficit, help make our manufacturers more competitive, and actually help to protect the environment.”

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22. Vote-a-Rama Reveals Senators’ Environmental Agenda

    Mar 27, 2015 | Environmental Defense Fund

    By Jeremy Symons

    It’s been a big news day in the U.S. Senate, with Senate Democratic Leader Harry Reid announcing he won’t run for another term.

    But that's not the only news.

    We have had our eyes on the Senate’s marathon “Vote-a-Rama” budget process that wrapped up around three-thirty this morning.

    A number of environmental and energy votes came and went in a flurry of two-minute debates. While the votes mean little in terms of law (the budget bill doesn’t even go to the president for signature), Senators on both sides of the aisle brought up measures as trial balloons to find out where Senators stand on issues that could resurface when Congress takes up other legislation in the future.

    Disturbingly, but not surprisingly, polluter lobbyists were hard at work and Senators filed dozens of amendments attacking the Clean Air Act, the U.S. Environmental Protection Agency (EPA), President Obama’s Climate Action Plan, and other environmental measures.

    Others fought back with their own amendments calling for more — not less — action to protect our environment and health.

    Incredibly, many of these quick attacks on the Clean Air Act, Clean Water Act, and other bedrock measures were supported by a majority of Senators. This despite overwhelming public support — across party lines — for environmental laws, standards, and enforcement to protect the air we breathe, the water we drink, and the planet we leave our kids.

    Only a handful of the environmental amendments that were filed were actually voted on. But expect more attacks this year and next.

    The most dangerous attack was launched by Senate Majority Leader Mitch McConnell, who has made it a top priority to undermine EPA’s Clean Power Plan and give electric utilities a free pass on smokestack carbon pollution. His attack on the Clean Power Plan passed on a vote of 57-43.

    (You can see the votes on the McConnell amendment #836 here. “Nay” is the pro-environment vote.)

    Nevertheless, there are some positive takeaways.

    Our pick for the most promising development was a climate amendment from Sen. Michael Bennet. The amendment promotes “national security, economic growth, and public health by addressing human-induced climate change through increased use of clean energy, energy efficiency, and reductions in carbon pollution.”

    The Bennet amendment #1014 passed by a vote of 53-47, with all Democrats and seven Republicans supporting it — Sens. Ayotte, Collins, Graham, Heller, Murkowski, Kirk and Portman. (You can see how any Senator voted by clicking here. “Yea” is a pro-environment vote.)

    Another positive takeaway — not all is lost with the Clean Power Plan or other actions EPA and President Obama are taking on climate. To the contrary, most environmental attacks require 60 votes to pass, not 40, in the Senate. So the 43 Senators who stood up to McConnell’s effort can be sufficient to beat back similar legislation or amendments down the road.

    But clearly the margin is too thin, and it’s up to all of us to let our Senators know that we are paying attention and that we oppose these sneak attacks on America’s environmental and climate laws and rules.

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23. Reid’s Energy ‘Vacuum’ Will Be Hard to Fill

    Mar 27, 2015 | PoliticoPro

    By Darren Goode & Elana Schor

    Harry Reid’s retirement will leave a void not just in his party’s Senate leadership but in the national debate on nuclear power, fossil fuels and modernization of the electricity grid — and will cost environmentalists a crucial ally in Washington.

    Perhaps more than any congressional leader before him, the Nevada Democrat used his power both on Capitol Hill and as the builder of one of the nation’s most dominating statewide political machines to influence federal energy policy and even hand-pick key leaders in the executive branch bureaucracy. The results, as the Senate minority leader boasted Friday, included the demise of both the Yucca Mountain nuclear waste site and coal plants in his state.

    As the leader of a Democratic Senate supermajority early in President Barack Obama’s first term, Reid also steered an unprecedented tens of billions of dollars in clean energy investments through the federal stimulus program, helping spur solar, wind and geothermal projects in his state. He denounced “clean coal” even before Obama began backing away from the technology, expressed “serious concern” about the Keystone XL oil pipeline before it was on most Democrats’ political radar, and hosted an annual clean energy summit in Las Vegas that drew the Clintons, Cabinet members and stars from the tech industry.

    Reid’s interest in energy policy wasn’t an occasional dalliance. “It’s one of the defining pillars of his legacy,” Reid spokeswoman Kristen Orthman said Friday. And greens were quick to agree.

    “While Sen. Reid never really chaired an environmental committee, he was one of the greatest climate action, clean energy champions of the last 30 years,” said Daniel J. Weiss, senior vice president for campaigns at the League of Conservation Voters.

    “It leaves quite a vacuum,” said Chris Miller, Reid’s former longtime top energy adviser. “But you look at the Democratic caucus in general, it’s gotten sort of increasingly clean-energy-focus heavy. I can’t imagine it’s not going to stay that way.”

    Still, it’s unclear who can step into the role that Reid has played.

    Sen. Chuck Schumer of New York, who has the clear path to succeed Reid as Democratic leader, is a reliably liberal voice with long experience dealing with tax policy that could shape the future of energy investments. Yet Schumer has focused far less keenly than Reid on opposing fossil fuels, and his emphasis on a middle-class pocketbook message rather than climate hawkishness could alienate some on the environmental left — as could his Wall Street ties and his remark last year that “Democrats throughout the country” support fracking.

    Reid “had a true interest in developing a clean energy economy in the U.S.,” Sierra Club climate policy director John Coequyt said. “I think there’s a question as to whether the next leader of the Democratic Party in the Senate will have that same level of interest in clean energy policy, but I don’t think there’s any doubt as to whether they will fight for those issues.”

    Murshed Zaheed, a former Reid aide who is deputy political director of the environmentally active liberal group CREDO Action, was far more blunt.

    “Everyone, including environmentalists, should be extremely concerned about the potential leadership of a Wall Street stooge like Sen. Schumer,” Zaheed said. He described Reid as “an absolute warrior” on energy issues ranging from Yucca to renewable power.

    “While everybody was out there talking about ‘an all-of-the-above strategy’” for energy, Zaheed recalled, “and all the Democrats were really trying to embrace that, Sen. Reid spoke with his actions.”

    Then again, climate activists might not need to “scour the universe for a new champion” right away, said Tom Pyle, president of the industry-backed American Energy Alliance. He noted that Reid still has 22 months in office to ensure that the energy regulatory apparatus he helped push in a pro-renewables direction remains in place to carry out Obama’s long-term environmental agenda. That apparatus includes the Federal Energy Regulatory Commission, whose new chairman — Norman Bay — got the post with Reid’s strong support.

    “The legacy of his meddling will last at least through Norman Bay’s term as chair — that’ll be kind of a hangover,” said Pyle, who described Reid as having grown more “angry and partisan” in recent years.

    Reid said Friday that he has no regrets about his energy fights, including the death blow he dealt to Yucca Mountain and his 2007 effort to kill coal plants in Nevada. He hosted his first clean energy summit in Las Vegas the following year, and he will continue his annual one-day event in August.

    “We have a situation where we have got to stop ruining our world with fossil fuel,” Reid told Nevada radio station KNPR on Friday. “I stopped coal plants from being built in Nevada, we’re closing the ones that are in existence, and I have no regret to having done that.”

    He said he plans to use his remaining time in Congress to keep pushing for tax incentives for solar, wind and geothermal power. “It is very clear that it’s been helpful to Nevada. It’s been helpful to the country,” he said.

    Energy Secretary Ernest Moniz praised Reid on Friday both for hosting the summits and for being a “long-standing champion for clean energy.” He called him a “true pioneer in helping transform Nevada into a nationwide leader in solar and geothermal energy, and an outspoken advocate for lowering U.S. carbon emissions.”

    Reid’s summits have attracted some of the biggest names in Democratic politics, including providing a friendly early platform last August for Hillary Clinton to speak to progressive voters ahead of her expected presidential run. Former President Bill Clinton has spoken there three times, while Vice President Joe Biden and Al Gore have made appearances.

    Steven Chu, then known mainly as a Nobel-winning physicist, spoke at Reid’s first summit in 2008, which may have helped raise his profile mere months before Obama tapped him as energy secretary. At the same summit, Bill Clinton challenged Nevada to become a green energy leader, which Reid accepted. The state has one of the largest solar projects in the world, and Reid helped craft a deal to have Tesla house a $5 billion battery factory outside Reno. Other federal ideas emerged from that first gathering, including extending production and investment tax credits for wind and solar.

    “Reid took all those things from the summit and more and made them a reality,” said Weiss, a former senior official at the Center for American Progress, which has co-sponsored Reid’s annual energy events from the start. “It wasn’t just for show.”

    Reid even leveraged environmental policy at one point to transform party control of the Senate: In 2001, after he’d led Democrats on the Environment and Public Works Committee for only a few months, Reid agreed to surrender that post to help persuade Vermont Sen. Jim Jeffords to leave the GOP. Jeffords’ move put Democrats in charge of the chamber, making Jeffords the committee chairman and creating a temporary speed bump for President George W. Bush’s agenda.

    Reid “didn’t have to do that, but he was willing to do it to get the flip for the party,” Miller said.

    But his most enduring energy legacy may be in nearly single-handedly ensuring the Obama administration would kill Yucca Mountain, which has left the future handling of the nation’s growing piles of nuclear waste an open question.

    In part, Reid derailed Yucca with behind-the-scenes influence on the White House’s nominees to the Nuclear Regulatory Commission — in particular Gregory Jaczko, a former Reid aide who became a commissioner in 2005 and was elevated to chairman by Obama. Reid’s influence on the Senate Appropriations Committee and in the full Democratic caucus chipped away at Yucca’s budget, until Obama’s first budget proposal zeroed out any new funding for the project. And Jaczko told the NRC’s staff to stop working on Yucca.

    Reid’s influence in making Nevada an early presidential caucus state raised its national political profile, which helped influence every major Democratic presidential candidate in 2007 to promise to reject Yucca. That influence still exists for White House hopefuls in both parties, as shown by Jeb Bush’s caginess when answering a question about the project last week in South Carolina.

    Besides Jaczko, Reid engineered Obama’s nominations of key bureaucrats like Bureau of Land Management Director Neil Kornze, a former aide to the senator, and former FERC Chairman Jon Wellinghoff, who was from Nevada. Wellinghoff went on to promote efforts to integrate wind and solar power with the electric grid.

    Reid effectively claimed veto power over FERC nominees, giving him outsize influence over Obama’s choices to guide the future of the grid, natural gas pipelines and other infrastructure. The Nevadan’s imprint on FERC is particularly visible this week as the chairmanship passes to Bay.

    Still, the results have been messy at times.

    Jaczko stepped down in 2012 amid a series of spats with his four fellow commissioners. Reid made it clear he held a grudge, denouncing one of those commissioners — a Democratic Obama appointee — as a “s — t stirrer” and “first-class rat.”

    Reid also championed the 2013 nomination of former Colorado utility regulator Ron Binz to chair FERC, only to see Binz’s cause wilt under opposition from the coal industry and conservative groups. Later, to win Bay’s confirmation to the FERC board, Reid had to accept a deal in which a commissioner he had criticized, Cheryl LaFleur, got to spend an extra nine months as chairwoman.

    Reid “cared about the leadership” at federal regulatory agencies, from FERC to the NRC to the Energy Department, the Sierra Club’s Coequyt said, “and was willing to stick his neck out to get the right people in place.”

    But supporters of the nuclear industry have complained that one consequence of Reid’s influence is that the U.S. still has no permanent place to dispose of its high-level radioactive waste. Finding a replacement for Yucca could take decades and force the government to spend tens of billions of dollars in damages to utilities that are now stockpiling the waste on their own properties.

    Pyle, the former Koch Industries lobbyist who now leads the AEA, predicted that Reid’s willingness to go to battle over energy nominees would leave a lasting mark on independent agencies that once operated relatively apart from partisan politics.

    “There may be a time down the road when things normalize,” Pyle said, “but the environment now is just so highly charged that there’s not going to be a thaw any time soon.”

    David Goldston, government affairs director at the Natural Resources Defense Council and a former House GOP aide, said he hopes Reid will leave a lasting legacy on the Hill, where the battle lines over climate policy have been effectively drawn.

    “Any Democratic leader — and hopefully over time, any Republican leader — is going to feel compelled to take a forward-leaning position,” Goldston said.

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24. Reid Announces Plan to Retire, Sparking Fight to Replace Him

    Mar 27, 2015 | E&E - Greenwire

    By Daniel Bush & Jennifer Yachnin

    Senate Minority Leader Harry Reid today announced that he would not seek re-election, setting in motion a leadership change for Senate Democrats and a fight for his seat in the battleground state of Nevada next year.

    Reid's decision to step down at the end of 2016 will end a three-decade-long congressional career in which he rose from the House to become the Senate majority leader, a powerful post he used to help push through key pieces of President Obama's domestic agenda in the face of intense Republican opposition.

    The Nevada Democrat said his plan to retire was not based on the GOP takeover of the Senate after last year's midterm elections, or the serious eye and face injuries he sustained while exercising at his home in Las Vegas in January.

    The accident caused Reid, 75, to miss the opening days of the Senate, when he was replaced as majority leader by Sen. Mitch McConnell (R-Ky.). Reid later returned to work sporting bruises on his face and shaded glasses to protect his injured right eye.

    "The decision that I've made has absolutely nothing to do with my injury, it has nothing to do with my being minority leader, and it certainly has nothing to do with my ability to be re-elected," Reid said in a three-minute video that was posted to his Senate website this morning.

    Reid said he was concerned that defending his seat would require vast sums of money that would be better spent on other races in 2016, when Democrats will have a much more favorable map than they did last cycle. The party needs to pick up five seats to regain control of the Senate, though Reid's retirement makes that harder by putting another competitive race into play.

    "We have to make sure Democrats take control of the Senate again," Reid said. "And I feel it is inappropriate for me to soak up all of those resources on me when I could be devoting those resources to the caucus."

    The announcement does not come as a complete surprise. Speculation had been mounting for months, if not years, that Reid would forgo a shot at a sixth term, though the lawmaker insisted publicly as recently as January that he planned to run for re-election.

    It had long been assumed that Reid's top lieutenants -- New York Sen. Charles Schumer, the Senate's third-ranking Democrat, and Illinois Sen. Dick Durbin, the minority whip -- would battle it out to succeed him.

    But Reid moved quickly this morning to anoint his successor, endorsing Schumer in an interview with The Washington Post.

    "I think Schumer should be able to succeed me," Reid told the newspaper in an interview at his Washington, D.C., home. Reid said that Durbin had agreed to step aside for Schumer, a fundraising powerhouse who runs the caucus' policy arm.

    "Harry is one of the best human beings I've ever met. His character and fundamental decency are at the core of why he's been such a successful and beloved leader," Schumer said in a statement. "He has left a major mark on this body."

    Durbin was equally effusive, saying Reid was one of the "ablest leaders of the Senate Democratic caucus in modern history." He added, "The Senate will miss his leadership, and I will miss his friendship, but with the 114th Congress only just underway, Leader Reid and Senate Democrats have a lot of work to do."

    Reid was elected to the Nevada State Legislature in 1968, after famously working his way through law school as a Capitol Hill police officer in the early 1960s. He won a seat in the House in 1982 and was elected to the Senate in 1986.

    The Searchlight, Nev., native and one-time amateur boxer became the top Senate Democrat in 2005 and served as majority leader from 2007 through last year, the second-longest run as leader in caucus history after that of former Montana Sen. Mike Mansfield (D).

    As majority leader, Reid helped enact the 2009 stimulus bill and the Obama administration's signature health care reform. He also pushed through a controversial rule change known as the "nuclear option" in 2013 that prohibited Republicans, then in the minority, from blocking most judicial appointees.

    But Reid came under fire for his leadership style in recent years, especially his decision to limit amendments and votes on some controversial pieces of legislation. Critics have argued that the strategy hurt Democratic incumbents last fall, when the GOP won nine Senate seats and retook control of the chamber. Scramble in Nev.

    Already expected to be a hotly contested race before Reid's announcement today -- Nevada is a swing state, and conservative groups like the Tea Party Express had named Reid their top target in the 2016 election -- the competition for his Senate seat was upgraded by the Cook Political Report to a rating of "toss-up," its most competitive designation, in the wake of Reid's decision,.

    While President Obama claimed victories in Nevada in both 2008 and 2012, taking 52 percent in the state in his second presidential bid, Reid is the only Democrat currently elected statewide.

    Establishment Republicans have already spent months encouraging Nevada Gov. Brian Sandoval (R) to challenge Reid for his seat, although the two-term governor has publicly demurred when asked whether he will make another run for office.

    In an interview with Nevada political analyst Jon Ralston earlier this year, Sandoval acknowledged that his own budget proposal -- which includes the largest tax increase in state history -- would be a major hurdle for him in any future campaign.

    "Do you really think, if this is my last session as governor, I would propose the things that I proposed last night, thinking I might be on a ballot?" Sandoval said in January.

    Sandoval praised Reid in a statement issued today, but did not address the 2016 contest

    "Senator Reid has been an influential voice in Congress on behalf of Nevada's interests, particularly on issues such as Yucca Mountain and renewable energy development," Sandoval said. "His service to Nevada as a State Legislator, Lieutenant Governor, Congressman, and Senator spans almost half a century and his legacy will last for generations. I would like to thank Senator Reid for his service to our state. I appreciate the opportunity to have worked closely with him to strengthen Nevada and remain committed to continue that work as he completes his final term."

    While Sandoval's entry into the race would also likely winnow a potentially large GOP field, a host of more conservative Republicans -- including state Controller Ron Knecht and state Attorney General Adam Laxalt, the son of former Sen. Pete Domenici (R-N.M.) and grandson of former Sen. Paul Laxalt (R-Nev.) -- could opt into the race regardless.

    In addition to Knecht and Laxalt, other would-be contenders include Lt. Gov. Mark Hutchison, state Senate Majority Leader Michael Roberson, former Lt. Gov. Brian Krolicki and state Secretary of State Barbara Cegavske. Las Vegas City Councilman Bob Beers (R) had already declared his candidacy ahead of Reid's retirement.

    It also remains to be seen whether Republican Reps. Joe Heck and Mark Amodei will opt into the Senate race, after having previously declined to challenge Reid.

    National Republican Senatorial Committee Executive Director Ward Baker marked Reid's retirement as a victory, while vowing that the GOP would be able to flip control of the Senate seat.

    "On the verge of losing his own election and after losing the majority, Senator Harry Reid has decided to hang up his rusty spurs," Ward said in a statement. "Not only does Reid instantly become irrelevant and a lame duck, his retirement signals that there is no hope for the Democrats to regain control of the Senate. With the exception of Reid, every elected statewide official in Nevada is Republican and this race is the top pickup opportunity for the GOP."

    In the wake of Reid's announcement, former state Attorney General Catherine Cortez Masto immediately topped lists of potential Democratic successors. Cortez Masto won campaigns in 2006 and 2010 before leaving office in 2014.

    Other potential contenders include Rep. Dina Titus (D), as well as former Secretary of State Ross Miller, who lost a 2014 bid for state attorney general to Laxalt and Rory Reid, the senator's son and a former Clark County commissioner who lost a 2010 gubernatorial bid against Sandoval.

    Democratic Senatorial Campaign Committee Chairman Jon Tester (D-Mont.) asserted that Democrats will be able to retain the Senate seat next year.

    "There is a talented pool of Nevada Democrats who are ready to step up to the plate, and we will recruit a top-notch candidate in Nevada who will be successful in holding this seat in 2016," Tester said.

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25. Chuck Schumer in Line to Succeed Harry Reid

    Mar 27, 2015 | Politco

    By Manu Raju & Burgess Everett

    Just hours after Minority Leader Harry Reid announced he would retire, Sen. Chuck Schumer declared Friday he would run to be Democratic leader — and a source close to the New York Democrat said he has already locked up enough support within the caucus to secure the top job.

    Schumer will leapfrog Dick Durbin, the Senate minority whip, who announced his backing of the New Yorker Friday as well. Durbin will seek to remain the party’s whip, sources said Friday.

    Durbin’s comments clear the way for Schumer to succeed Reid, who surprised the political world when he announced Friday he would not seek reelection next year. Reid promptly said he would endorse Schumer, the No. 3 Senate Democrat, which he relayed in a private call to Durbin Friday morning. Durbin, who is the No. 2 Democrat, did not object, sources said.

    ”I am honored and humbled to have the support of so many of my colleagues and look forward to our Senate Democratic Caucus continuing to fight for the middle class,” Schumer said in a statement on Friday afternoon .

    Two sources also said that Durbin told Schumer he would not run against him in a leadership election. Durbin was making calls Friday afternoon to gauge whether he would have enough support to remain whip, a position Washington Sen. Patty Murray (D-Wash.) may also seek.

    A Reid aide said that the outgoing Democratic leader would back Durbin for the whip job.

    “Durbin told Schumer late last night that he wasn’t running for leader, and that Schumer has his support,” a Durbin spokesman said. “Durbin intends to run again for whip and has Reid’s support. He’s been speaking with senators this morning.”

    The scramble confirmed what’s been known in the Capitol for years: Schumer has emerged as the clear front-runner to succeed Reid, even though Durbin is the second-ranking Democrat. After two cycles running the Democratic Senatorial Campaign Committee and after he’s taken the reins as the messaging guru, Schumer is viewed by many of his colleagues as being one of his party’s savviest political tacticians.

    Yet, Schumer and Durbin — who were Capitol Hill roommates for years — rarely discussed the touchy matter. The issue won’t be finalized until after the November 2016 elections. Reid said he would remain as leader until his term expires in January 2017.

    One by one over the past 24 hours, Reid began to inform his top lieutenants that he would retire. He first told Schumer Thursday, giving him a green light to begin the campaign to succeed him.

    “I’ve never been a shrinking violet,” Reid told the Las Vegas radio station KNPR on Friday. “I think it’s very important that we have continuity in our leadership.”

    “I feel very comfortable about this continuity of leadership with Schumer. He will be elected to replace me in 22 months.”

    Murray has gained increased prominence and goodwill within the caucus, making her a potential threat to Durbin. But Reid’s endorsement of Durbin will make her ascension to the No. 2 spot harder.

    Democratic insiders believe that there’s a possibility that Schumer and Murray would run for the top two spots, a move that could effectively force Durbin out of the running. The Democratic leaders, however, appeared keen to avoid a messy confrontation and could presumably cut a deal to avoid the first contested leadership in years.

    The issue remains very sensitive within Democratic quarters — so much so that the three leaders did not discuss the matter with each other despite learning about the matter over the last day. Schumer was the first of the three to be told by Reid, a source said.

    In addition to Reid, Schumer has locked up support from the liberal and moderate wings of the caucus. Sen. Joe Manchin, a West Virginia Democrat, announced Friday he would back Schumer after speaking with the senator. And Sen. Kirsten Gillibrand, a fellow New York Democrat and one of the more liberal members of the caucus, called Schumer after news of Reid’s retirement broke to offer support for Schumer as leader.

    “Nobody fights harder for the middle class than Sen. Schumer. He has been a tremendous partner to work with and would be an outstanding majority leader. I would be honored to have the opportunity to support him,” she said.

    The White House is keeping its distance from the leadership shuffle. Press secretary Josh Earnest told reporters that President Barack Obama “does not intend to endorse either man,” referring to Durbin and Schumer.

    Liberal groups began pushing Sen. Elizabeth Warren of Massachusetts to run for Democratic leader as soon as news of Reid’s retirement broke on Friday morning. But Warren, who was recently appointed to the Democrats’ leadership team as a policy adviser, won’t seek the post, her office said.

    Warren’s office would not say if she will back Schumer. She is a leading critic in Congress of Wall Street, which is one of the top industries in Schumer’s home state.
    
    

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26. Final Senate Budget Resolution Contains Handful of Environmental Amendments

    Mar 30, 2015 | BNA Daily Environment Report

    By David Schultz

    The Senate passed a budget resolution March 27 for the 2016 fiscal year with a handful of amendments on climate change, water rights and other environmental issues.

    Because the amendments were attached to a nonbinding resolution (S. Con. Res. 11) that won't go to the White House for a signature, they won't become law and, from a policy standpoint, are essentially symbolic. However, the amendments serve as test votes that signal the attitude of the Senate on hot-button issues. Amendments to the annual budget resolution also can be used by senators to force their opponents to cast up-or-down votes on politically sensitive measures.

    Final passage came at 3:29 a.m. on March 27, after 18 hours of voting. The final tally was 52-46 with Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Texas) being the only Republicans opposing the resolution.

    Late in the evening March 26, just hours before final passage of the full resolution, the Senate adopted four amendments addressing environmental concerns in addition to the amendments that had been added earlier in the week.

    • An amendment from Sen. Michael Bennet (D-Colo.) calling on Congress to address the health, economic and national security threats posed by climate change was adopted on a 53-47 vote.

    • An amendment from Sen. Cory Gardner (R-Colo.) calling on Congress to protect private water rights was adopted, 59-41.

    • An amendment from Sen. Tom Cotton (R-Ark.) asking Congress to require the Fish and Wildlife Service to consider the economic impact of making a critical habitat designation was adopted, 52-42.

    • An amendment from Senate Majority Leader Mitch McConnell (R-Ky.) that would prevent the Environmental Protection Agency from blocking states from receiving federal highway funds if they refuse to comply with carbon pollution standards was adopted, 57-43.

    During debate on his amendment, McConnell acknowledged the EPA doesn't have the authority to withhold highway funds in this way but said, “We need to make it clear that the Senate opposes any step in that direction.”

    Terminology Amendment Rejected

    On a 49-51 vote, the Senate rejected an amendment from Sen. Bill Nelson (D-Fla.) that would have prevented the Senate from considering legislation that would forbid federal employees from using the term “climate change” in their work.

    Employees of the Department of Environmental Protection in Nelson's home state of Florida said they were instructed not to use the terms “climate change” or “global warming” after Gov. Rick Scott (R) took office, according to a report by the Florida Center for Investigative Reporting (46 DEN A-7, 3/10/15).

    Amendments Adopted Earlier

    Earlier in the week, the Senate adopted amendments to the budget resolution addressing carbon taxes, Clean Water Act jurisdiction and land exchanges between states and the federal government (59 DEN A-18, 3/27/15).

    Overall, the final budget resolution passed the Senate with 791 amendments attached.

    The Senate's budget plan still must be reconciled with a separate budget resolution passed March 25 by the House. Chairmen of the chambers' budget committees have said they expect to complete the process by April 15.

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27. Ninth Circuit OKs Appeal in Superfund Case; Liability for Air Pollutant ‘Disposal' at Issue

    Mar 30, 2015 | BNA Daily Environment Report

    By Steven M. Sellers

    An appellate court has agreed to hear a case that may decide whether airborne pollutants transmitted from a smelter to a Superfund site constitute an actionable “disposal” for which the smelter owner is liable as an “arranger” (Joseph A. Pakootas v. Teck Cominco Metals Ltd., 9th Cir., No. 15-80005, 3/25/15).

    The U.S. Court of Appeals for the Ninth Circuit agreed to hear the case March 25.

    “This decision could have a dramatic impact on cost recovery and allocation at Superfund sites—it could be a big win for industrial [potentially responsible parties],” Mindy DeYoung, an attorney with Riddell Williams in Seattle, told Bloomberg BNA in a March 27 e-mail.

    The case presents a question no federal court has addressed “head-on” and for which there is a “substantial ground for difference of opinion,” the U.S. District Court for the Eastern District of Washington said in authorizing the interlocutory appeal.

    The district court agreed with the Confederated Tribes of the Colville Reservation that Teck Cominco Metals Ltd. became an “arranger” under the Comprehensive Environmental Response, Compensation and Liability Act once airborne contaminants from its Canadian smelter touched down in the water and on the ground of the Upper Columbia River Superfund site in Washington State (42 U.S.C. §9607 (a)(3))(03 DEN A-4, 1/6/15).

    But the court also noted that “[i]n over 30 years of CERCLA jurisprudence, no court has impliedly or expressly addressed the issue of whether aerial emissions leading to disposal of hazardous substances ‘into or on any land or water' are actionable under CERCLA.”

    Teck Disagreed With CERCLA Liability

    Teck Cominco Metals Ltd. argues in its petition that the district court wrongly concluded that it has CERCLA liability and has created an “irreconcilable” conflict with a Ninth Circuit decision (Ctr. for Cmty. Action and Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019 (9th Cir. 2014)).

    DeYoung, however, said that case is distinguishable because it was a Resource Conservation and Recovery Act case. “The Ninth Circuit in [Center for Community Action] wasn't looking at how CERCLA defines disposal, and wasn't being asked to. RCRA regulates waste management, and CERCLA imposes clean up liability once hazardous substances are released into the environment.”

    “If the Ninth Circuit omits aerial discharges as outside the net of liability, litigants throughout the nation will have authority to demand an exclusion from CERCLA liability for those types of releases,” DeYoung said.

    Called Attempt to Expand Superfund Liability

    Peter Hsiao, an attorney who isn't involved in the litigation but handles complex environmental litigation for Morrison Foerster in Los Angeles, said in a March 27 e-mail that “the case presents a creative attempt to dramatically expand the scope of Superfund liability.”

    Other Superfund lawyers have varying opinions about the nature of that expansion and its potential effects on CERCLA litigation.

    “It's a frightening construct if you're advising a client, but my sense is that the Ninth Circuit will agree with the district court's interpretation because it isn't an arbitrary one,” Daniel Wolff, an environmental litigator with Crowell Moring in Washington, D.C., said March 27.

    Wolff also noted that the Justice Department supported the plaintiffs in the district court through an amicus brief.

    But he added that even if the petitioners are found to be CERCLA arrangers, it may be at best a “pyrrhic victory” because of the difficulty in proving that Teck did anything to “arrange” for the disposal of hazardous material at the Superfund site.

    ‘Irreconcilable' Conflict Asserted

    In Center for Community Action, the court held that a “disposal” under RCRA excludes aerial emissions (42 U.S.C. §6903(3)). The same result is warranted here, Teck argued, because CERCLA specifically adopted the definition of “disposal” already used in RCRA.

    The Confederated Tribes told Bloomberg BNA March 27 in an e-mail that it “invoked CERCLA to require Teck to clean up the results of 100-plus years of air emissions that have deposited in the Upper Columbia River site and looks forward to Ninth Circuit's confirmation of the reach of CERCLA.”

    The tribes had the support of an amicus brief filed by the U.S. Department of Justice that argued Center for Community Action was distinguishable because it involved the overlap between RCRA and the Clean Air Act, not CERCLA.

    CERCLA, RCRA Distinguished

    The district court concurred, adding that another distinction was that once the pollutants reached a Superfund “facility”—here the Upper Columbia River site—CERCLA makes no distinction between waste discharged from the smelter into the water or the air.

    But the court also acknowledged that Center for Community Action was an intervening decision that unsettled the law and warranted Teck's interlocutory appeal.

    The Ninth Circuit gave Teck 14 days within which to file its appeal.

    Judges Barry G. Silverman and Richard R. Clifton issued the order for the court.

    Requests for comment sent to counsel in the case March 27 weren't successful.

    The law offices of Short Cressman & Burgess represented the Confederated Tribes of the Colville Reservation.

    Pillsbury Winthrop Shaw Pittman represented Teck Cominco Metals Ltd.

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Transportation News

28. Cantwell's Crude-by-Rail Budget Amendment Targeted by API; Heitkamp Proposal Adopted

    Mar 30, 2015 | BNA Daily Environment Report

    By Rachel Leven

    A major energy group lobbied Capitol Hill offices to oppose a budget amendment that aimed to improve crude-by-rail safety, according to an e-mail obtained by Bloomberg BNA.

    The budget amendment, proposed by Sen. Maria Cantwell (D-Wash.), was one of at least five proposals that touched on the safety of transporting crude oil by rail or related derailment response. While Cantwell's and three other amendments were withdrawn for procedural reasons, an amendment by Sen. Heidi Heitkamp (D-N.D.) to improve emergency response to crude-by-rail incidents was approved by unanimous consent in the Senate's budget resolution (S. Con. Res. 11) that was adopted March 27.

    Passage of Heitkamp's Amendment 643 and other amendments are largely symbolic and don't have the force of law since the budget resolution isn't signed by President Barack Obama. However, the proposed amendments, the policy concerns by industry and the adoption of Heitkamp's amendment could provide insight into what the crude-by-rail debate on Capitol Hill will look like moving forward.

    Derailments of crude oil trains have become a widely discussed issue in the Capitol, as the frequency of these incidents has increased across the country. This type of transport has increased alongside domestic oil production, and these derailments have harmed people, the environment and property.

    Cantwell Proposal Targeted

    The amendment by Cantwell (Amendment 800) and her stand-alone bill (S. 859), would both aim to improve crude-by-rail safety.

    The amendment listed in broad strokes ways to improve safety, such as phasing out certain tank cars used in this kind of transport and limiting the volatility of crude oil shipped by rail. Cantwell's bill cited specific actions and requirements on this issue, such as prohibiting use of non-retrofitted DOT-111 and unjacketed CPC-1232 rail tank cars from oil transport “immediately” (58 DEN A-6, 3/26/15).

    The American Petroleum Institute sent e-mails to certain Capitol Hill staff members urging their offices to oppose Amendment 800. In the e-mail, the institute specifically took issue with tank car phaseout provisions and the establishment of a volatility standard cited in Cantwell's bill.

    Could Nearly Halt Rail Transport

    These provisions could “potentially resul[t] in nearly halting the continued transport of crude oil by rail, which could increase the cost of gasoline and other petroleum products,” Louis Finkel, executive vice president of government affairs for API, said in the March 26 e-mail obtained by Bloomberg BNA.

    However, Reid Walker, a spokesman for Cantwell, told Bloomberg BNA the e-mail was “misleading and confusing,” as it identified provisions from Cantwell's bill and not her amendment. The two-page amendment stated, for example, “rapidly phasing out the legacy rail tank car fleet for crude-by-rail operations” but didn't state that it would require the immediate halt of use for the legacy tank cars referenced in S. 859.

    Amendment 800 and three other amendments on crude-by-rail issues weren't accepted by the leadership and therefore were withdrawn, Walker said. This was a procedural move, he said.

    Opposition to S. 859

    The API e-mail could indicate opposition to Cantwell's stand-alone bill moving forward.

    “Though the bill attempts to take a holistic approach to the issue by addressing prevention, mitigation and response, its proposed actions are not based on science and ultimately could cost consumers millions while providing minimal to no reductions in risk,” API spokesman Brian Straessle told Bloomberg BNA March 27.

    Straessle, who verified the API e-mail, emphasized that API supports a comprehensive approach, including actions such as track maintenance and tank car improvements, and has conducted its own efforts to improve safety.

    Meanwhile, Heitkamp's amendment, which was approved by the Senate and had four co-sponsors, recommended funding a panel that would review existing emergency response training, resources, best practices and hazardous materials rail transport response. The emergency response efforts reviewed would include crude-by-rail and other incidents.

    Panel Had Been Included in S. 546

    The panel, proposed under Heitkamp's stand-alone bill S. 546, also would issue recommendations from this review on how to improve these response efforts. The Senate Homeland Security and Governmental Affairs Committee on March 4 passed S. 546, known as the RESPONSE Act (43 DEN A-23, 3/5/15).

    “Recent crude oil train derailments demonstrate that we need to make sure first responders have the most updated tools and resources to handle any kind of hazard to keep communities safe,” Heitkamp told Bloomberg BNA in a statement.

    “I'll keep pushing for more legislative action that boosts crucial training and resources to make sure first responders are at the ready for communities across the country,” Heitkamp said.

    The three crude-by-rail amendments that were withdrawn in addition to Cantwell's include: Amendment 419, proposed by Sen. Shelley Moore Capito (R-W.Va.); Amendment 631, proposed by Sen. Robert Casey (D-Pa.); and Amendment 644, proposed by Sen. Joe Manchin (D-W.Va.).

    Capito's focused on the Pipeline and Hazardous Materials Safety Administration's upcoming rule on operational controls and enhanced tank car requirements that would govern this and certain other flammable liquid by rail transport.

    Casey's focused on first responder training, and Manchin's focused on the crude oil treatment process, according to Walker.

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