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ACC AM Mar 31
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(ACC Mentioned) Advertisement Chemical Production Sees Best Increase Since '10
Mar 30, 2015 | Chem.Info
By Andy Szal
U.S. chemical production improved by its largest margin in nearly four years, according to the latest data from the American Chemistry Council. The ACC's three-month moving average showed production increased by 4.2 percent between February 2014 and last month, the best rate since July of 2010. -
(ACC Mentioned) Opinion Cook: Virginians Deserve Stronger Protection From Toxic Chemicals
Mar 30, 2015 | The Roanoke Times
By Ken Cook
Cook is the president and cofounder of Environmental Working Group, a leading environmental health research and advocacy organization based in Washington, D.C. whose mission is to empower people to live healthier lives in a healthier environment. Every day, Virginians are exposed to toxic chemicals in air, food and water and in products... -
(ACC Mentioned) Get the Science on BPA
Mar 31, 2015 | The Post & Courier
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... -
(ACC Mentioned) It's Time to Think About Pool Safety
Mar 30, 2015 | Ledger-Enquirer
By Larry Gierer
Don't drink the pool water. Don't even put it in your mouth and spit it out. To do so could lead to a recreational water illness, said Eileen Usman, the district epidemiologist for the West Central Health District. "Just because a pool is clean, just because it has the proper chemicals, doesn't mean you can't get sick," Usman said. -
Vermont AG Joins List Of Officials Opposing Bipartisan Tsca Bill
Mar 30, 2015 | E&E News PM
By Sam Pearson
Another attorney general has weighed in on a pending bill to overhaul how the federal government regulates toxic chemicals, saying he isn't pleased about how the measure would affect his state. A letter by the office of Vermont Attorney General William Sorrell (D) said the bill, S. 697 or the "Frank R. Lautenberg Chemical Safety for the 21st... -
Understanding Preemption in the Lautenberg Act
Mar 30, 2015 | Environmental Defense Fund
By Richard Denison
By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption (Senator’s Boxer’s consistent position) at one end of the spectrum to full-field preemption effective upon... -
Safety Groups Petition Consumer Bureau To Ban Flame Retardant Products
Mar 31, 2015 | The Hill - Regulation
By Lydia Wheeler
Consumer safety groups want federal regulators to ban products made with the flame retardant chemicals known as organohalogens. Groups including the American Academy of Pediatrics, the International Association of Fire Fighters and the Consumers Union are petitioning the Consumer Product Safety Commission to ban consumer... -
Possible Bans, Restrictions on Three Solvents Will Be Focus of Two Small Business Panels
Mar 31, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Possible rules banning or restricting certain uses of three solvents will be discussed by two small business advocacy review (SBAR) panels the Environmental Protection Agency will form, the agency announced March 30. The EPA is forming the first panel to discuss a possible regulation to ban or restrict any or all of the following three... -
EPA To Launch Panels On Restricting Degreaser, Paint Strippers
Mar 30, 2015 | E&E News PM
By Sam Pearson
U.S. EPA is beginning work to restrict three chemicals that cause health problems by convening Small Business Advocacy Review Panels, the agency said today. EPA knows that N-Methylpyrrolidone, or NMP; methylene chloride; and trichloroethylene, or TCE, pose health risks. But such panels are required under the Regulatory Flexibility Act... -
Biologists, Other Scientists Sought for PCB Meeting
Mar 31, 2015 | BNA Daily Environment Report
The Environmental Protection Agency is asking that biologists, toxicologists, epidemiologists and other scientists who focus on the health effects of polychlorinated biphenyls (PCBs) other than cancer be nominated to participate in a June 17-18 meeting the agency will host, according to a March 30 agency announcement. The EPA's Integrated Risk... -
Healthy Child Healthy World and EWG Fight for a Better Environment for Children
Mar 30, 2015 | Environmental Working Group
By Kelly Herman
The loss of a family member is devastating – even more so knowing that the death might have been preventable. Many of us have had to deal with cancer that could be linked to toxic chemical exposure, and many families have lost loved ones as a result. James and Nancy Chuda founded Healthy Child Healthy World after their daughter’s life was... -
Aboveground Tank Inspections Limited In Bill Signed by West Virginia Governor
Mar 31, 2015 | BNA Daily Environment Report
By Bebe Raupe
West Virginia protections from aboveground storage tank hazards have been significantly scaled back less than a year after their adoption in the wake of a chemical tank spill that tainted the water supply of 300,000 residents. Under the new law, only tanks within 1,000 feet of a water supply or containing more than 50,000 gallons will be ... -
The Short Answer: Earthquakes and Drilling
Mar 30, 2015 | The Wall Street Journal
By Daniel Gilbert
Across the central U.S., oil-patch communities have been rocked by swarms of small earthquakes that some scientists believe may be linked to oil and gas activity. Now, The Wall Street Journal reports, some Oklahoma residents are suing energy companies over damage they say was caused by quakes, leaving the oil and gas industry ... -
EPA Chief: Keystone Wouldn’t Be A ‘Disaster’ For Climate
Mar 30, 2015 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency (EPA) said the Keystone XL pipeline would not be disastrous for the climate. Gina McCarthy’s comments on Monday came despite her agency’s position that low oil prices could mean that Keystone will have more of an impact on the climate than previously thought. -
EPA’s McCarthy: Keystone Alone Wouldn’t Be Climate Disaster
Mar 30, 2015 | PoliticoPro
By Andrew Restuccia & Elana Schor
EPA Administrator Gina McCarthy said Monday that building the Keystone XL oil pipeline alone would not be a disaster for the climate, as some opponents of the project contend. “No, I don’t think that any one issue is a disaster for the climate, nor do I think there is one solution for the climate change challenge that we have,” McCarthy said... -
Gas Industry: DOE Furnace Energy Standard Is Too Costly, Rulemaking Isn't Transparent
Mar 31, 2015 | BNA Daily Environment Report
By Rebecca Kern
The natural gas industry said a Department of Energy proposed rule to adopt a new residential furnace efficiency standard will be too costly to implement and the rulemaking process hasn't been transparent. Members of the American Gas Association and the American Public Gas Association, along with other industry groups, spoke out... -
The EPA Defends the Clean Power Plan
Mar 30, 2015 | The Wall Street Journal
The Environmental Protection Agency has rolled out an ambitious Clean Power Plan to get states to cut their carbon emissions. And it has run up against a chorus of critics charging the agency with vast overreach. To get an inside look at the fight, Wall Street Journal Editor in Chief Gerard Baker spoke with EPA Administrator Gina McCarthy. -
McCarthy Not Concerned About Potential Power Plan Rulings Before Paris Talks
Mar 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental Protection Agency Administrator Gina McCarthy said she is not concerned about possible federal appeals court rulings on the proposed Clean Power Plan in advance of international climate change negotiations in Paris. McCarthy, speaking March 30 at an event presented by Politico, said the EPA does not expect that the U.S.... -
Agency Won't Withhold Highway Funds For Clean Power Plan -- McCarthy
Mar 31, 2015 | E&E News PM
By Jean Chemnick
U.S. EPA doesn't have the legal authority to withhold highway funding from states that opt not to comply with its Clean Power Plan, Administrator Gina McCarthy said today. This statement comes after 57 senators went on record last week opposing EPA's withholding transportation funds from states that adopt the "just say no" strategy ... -
Koch Brothers Group Seeks to Shape Public Attitudes Against EPA Power Plan
Mar 31, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Americans for Prosperity will continue efforts to block the Environmental Protection Agency's proposed Clean Power Plan and other policies it believes disrupt the nation's free market system, Tim Phillips, the president of the group founded by billionaire brothers Charles and David Koch of Koch Industries Inc., said March 27. -
EPA to Release Proposed Guidance On Exceptional Events Later in 2015
Mar 31, 2015 | BNA Daily Environment Report
By Joyce E. Cutler
The Environmental Protection Agency this year is planning to release proposed streamlined guidance clarifying exceptional events under the Clean Air Act ozone standard, EPA Associate General Counsel Lorrie Schmidt said. If EPA decides to lower the standard, “we expect that the number of exceptional event requests that we get will... -
GOP Bill Would Block Mountaintop Mining Rule
Mar 30, 2015 | The Hill - E2 Wire
By Timothy Cama
A House Republican introduced a bill Monday that would block the Obama administration’s efforts to restrict the controversial mountaintop removal coal mining process. The Interior Department is planning to propose soon a regulation to restrict mountaintop removal mining near streams in an effort to protect streams in Appalachia from... -
EPA Head Knocks McConnell’s Climate Rule Amendment
| The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency said Senate Majority Leader Mitch McConnell (R-Ky.) is “confused” about how exactly the Clean Air Act works. EPA Administrator Gina McCarthy said that, despite the amendment McConnell sponsored last week in the Senate budget, the agency will not take away states’ highway funds if they fail... -
Lawsuit Over Potential Job Losses From Clean Air Rules Allowed to Continue
Mar 31, 2015 | BNA Daily Environment Report
By Andrea Vittorio
A federal court has rejected the Environmental Protection Agency's request to dismiss a lawsuit from coal companies alleging that the agency failed to review possible jobs losses from its proposed carbon dioxide performance standards for power plants and other air pollution rules (Murray Energy Corp. v. McCarthy, 2015 BL 86302, N.D. W.Va... -
National Academy Panel to Advise EPA On Risks to Human Subjects in Air Studies
Mar 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An ad hoc committee established by the National Academy of Sciences will review scientific issues associated with the use of human test subjects in studies considered when the agency promulgated air pollution regulations. The committee will consider whether the past use of controlled human-exposure studies has aided the EPA in setting... -
Climate Change, New Source Review Top List Of Justice Department Enforcement Priorities
Mar 31, 2015 | BNA Daily Environment Report
By John Henry Stam
Climate change and new source review are the biggest current environmental enforcement issues, a top Department of Justice official said at an American Bar Association meeting. Walter Benjamin Fisherow, chief of the Environmental Enforcement Section, said, “One of the most important things we do is get tons of pollutants out of... -
States Oppose More Stringent Test For Negotiated CERCLA Settlements
Mar 31, 2015 | BNA Daily Environment Report
By Steven M. Sellers
The U.S. Supreme Court should reverse a federal appeals court decision requiring stricter scrutiny of Superfund settlements reached by the states, according to a March 20 amicus brief filed by nine state attorneys general (Arizona v. Ashton Co., Inc., Contractors and Eng'rs., U.S., No. 14-1019, 3/20/15). -
(ACC Mentioned) Crude-by-Rail Rule Underestimates Costs, Number of Tank Cars, Industry Tells OMB
Mar 31, 2015 | BNA Daily Environment Report
By Rachel Leven
The Transportation Department underestimated the number of tank cars affected by its upcoming rule governing the rail transport of crude oil and other flammable liquids, industry groups said in White House records posted March 30. The Pipeline and Hazardous Materials Safety Administration estimated in its proposed rule that roughly 66,000 tank... -
Energy Agency Provides Monthly Crude-by-Rail Data
Mar 31, 2015 | BNA Daily Environment Report
The U.S. Energy Information Administration will now offer monthly data on the rail transportation of crude oil, the agency announced March 30. The data can be used to analyze the movement of crude oil, including from Canada, among other findings, the EIA said in a news release. The use of this mode of transport to move crude oil has increased significantly...
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(ACC Mentioned) Advertisement Chemical Production Sees Best Increase Since '10
Mar 30, 2015 | Chem.Info
By Andy Szal
U.S. chemical production improved by its largest margin in nearly four years, according to the latest data from the American Chemistry Council.
The ACC's three-month moving average showed production increased by 4.2 percent between February 2014 and last month, the best rate since July of 2010.
February production also rose by 0.2 percent compared to revised January numbers, the 11th consecutive monthly increase.
Numbers varied, however, between chemical industry segments. Production increased in eight segments, including organic chemicals, consumer products and pharmaceuticals, but decreased in eight others that included synthetic fibers, plastic resins and adhesives.
Last month's numbers also increased despite a slowdown in manufacturing, which was hindered by winter weather and a labor dispute at West Coast ports. Several manufacturing segments that rely heavily on chemicals, however, still saw increases, including electronics, plastics and apparel. -
(ACC Mentioned) Opinion Cook: Virginians Deserve Stronger Protection From Toxic Chemicals
Mar 30, 2015 | The Roanoke Times
By Ken Cook
Cook is the president and cofounder of Environmental Working Group, a leading environmental health research and advocacy organization based in Washington, D.C. whose mission is to empower people to live healthier lives in a healthier environment.
Every day, Virginians are exposed to toxic chemicals in air, food and water and in products they use, from the chemicals in cleaners and detergents to consumer goods like toys, baby bottles, sippy cups and children’s jewelry.
Many people assume the substances that make up these products are harmless. But in truth, industrial chemicals do not have to be proved safe before they go on the market.
A chemical industry-backed bill introduced by Sens. Tom Udall, D-N.M., and David Vitter, R-La., would actually make things worse. Virginia Sen. Tim Kaine was right not to put his name on this bill.
Kaine knows that Virginians need strong protection from dangerous chemicals that contribute to respiratory illnesses, birth defects and developmental problems in children.
The industry-backed bill would not ensure that chemicals in consumer products are safe, would not require the U.S. Environmental Protection Agency to act quickly to protect human health from the most dangerous of these substances, would not provide EPA with the resources it needs to conduct crucial investigations of chemical safety and would not assure that the states can play a meaningful role in protecting their citizens from chemicals that present particular hazards where they are.
The proposed Udall-Vitter legislation would actually weaken current federal law, the Toxic Substances Control Act of 1976, a law so badly broken that the EPA could not even ban asbestos, known to cause cancer. The most dangerous chemicals – known human carcinogens, highly neurotoxic chemicals and chemicals linked to birth defects – might escape regulation under the bill’s weak safety standard.
In the absence of strong federal regulations, states like Virginia have led the way in protecting their own citizens from toxic chemicals. Thirty-three states have outlawed hazardous chemicals such as bisphenol A, formaldehyde, lead, mercury and flame retardants. Many state laws take children’s health into special consideration when banning hazardous chemicals from products. The Udall-Vitter bill would undermine the EPA’s powers to regulate chemicals and would hamstring state efforts to fill the void.
As I testified before a Senate committee recently, this industry-backed bill would allow chemical companies to duck the backlash they themselves have engendered among consumers, responsible companies and legislators in states like Virginia. Just look at the documents Environmental Working Group (EWG) has collected and made available to the public over the years. They show that the chemical industry has repeatedly hid the truth about chemical hazards and derailed efforts to make people aware of them.
There is some evidence this legislation was drafted by the American Chemistry Council. We don’t know the whole story, but we know this: the Udall-Vitter bill has the explicit support of the chemical industry and its allies in Congress and clearly favors the interests of the chemical industry — not public health.
That’s what those of us from the environmental wing of the environmental movement firmly believe. EWG strongly opposes the chemical industry bill. Virginians deserve a law that shields them from exposure to harmful chemicals.
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(ACC Mentioned) Get the Science on BPA
Mar 31, 2015 | The Post & Courier
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. Register|Manage Newsletters
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 unwanted weight gain.
Another new study puts the health-care cost of obesity related to BPA at more than $1.5 billion 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.
“There’s too much data consistent across studies ... time and time again ... to ignore it and suggest BPA has no effect on humans,” one researcher said.
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 feminizes male infants in many animal experiments.) 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.
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. 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.
2. 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.
3. Eat fresh instead of canned fruit. Ditto for veggies. Avoiding plastic food packaging whenever possible will reduce your exposure, too.
Now that you’ve listened to the science, do you think glass will make a comeback?
Mehmet Oz, M.D. is host of “The Dr. Oz Show,” and Mike Roizen, M.D. is Chief Wellness Officer and Chair of Wellness Institute at Cleveland Clinic. To live your healthiest, tune into “The Dr. Oz Show” or visit www.sharecare.com.
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(ACC Mentioned) It's Time to Think About Pool Safety
Mar 30, 2015 | Ledger-Enquirer
By Larry Gierer
Don't drink the pool water.
Don't even put it in your mouth and spit it out.
To do so could lead to a recreational water illness, said Eileen Usman, the district epidemiologist for the West Central Health District.
"Just because a pool is clean, just because it has the proper chemicals, doesn't mean you can't get sick," Usman said.
She explained chlorine and other disinfectants do not instantly kill every germ in a pool.
The time has arrived when people will be spending a lot of time in pools and safety should be taken.
Recreational water illnesses caused by bacteria include skin, ear and respiratory infections, but Usman said the most common problems are gastrointestinal, primarily diarrhea.
The Centers for Disease Control and Prevention reported the number of recreational water illnesses has increased over past decade.
People bringing dirt into a pool hurts the effectiveness of the chlorine.
"It is important to shower with soap before entering a pool," Usman said.
Much of the contamination that makes people sick has to do with feces.
Usman said people should not swim if they have diarrhea. Everyone should wash their hands after using the bathroom or changing a diaper. Diapers should not be changed in the pool area where germs can rinse into the water.
The CDC says people should take a bathroom break every hour. Diapers should be checked even more regularly.
Usman said even if babies are wearing special pool diapers or swim pants, regular checking is important.
"There is still leakage," Usman said.
Swimmers should take notice if the pool in which they are swimming is receiving proper care.
Kristi Ludy is the environmental health county manager for the Columbus Department of Public Health, a division of the West Central Health District. Its responsibility includes local health inspections.
The department inspects public pools, including those at hotels.
"We don't do private pools," Ludy said.
She said there are several things for swimmers to check at a pool at which they are swimming.
"If it is a public pool, there should be the inspection grade posted near the entrance where it can be seen," she said,
A clean pool should have smooth pool sides. Tiles should not be sticky or slippery. If they are, there could be an algae problem.
No tiles should be broken.
"The water should be clear. You should be able to see any stripes at the bottom of the pool," she said. "You should be able to see the drain, You don't want someone stuck down there and not be able to see them."
The CDC says pool pumps and filtration systems make noise and you should be able to hear them running.
Though there are chemicals used in the water, a strong chemical odor means something is probably wrong. According to the American Chemistry Council, the smell comes not from chlorine but chloramines, chemical compounds that build up in pool water that is improperly treated. Chloramines form when chlorine combines with compounds found in perspiration, urine, saliva and body lotions.
The CDC recommends asking if the pH and chlorine levels at the pool are checked twice a day and if they are done at times when the pool is heavily used.
People should ask what specialized training staff members have.
Ludy said that in Columbus each public pool must have at least one certified pool operator.
She said there should be a telephone in the pool area that can be used in case of an emergency.
At a public pool, a deep area is considered five feet or more. "There needs to be a rope separating the deep from the shallow," Ludy said.
General rules for safety from the American Red Cross include surrounding the pool with a fence, not letting children swim alone and staying away from drain covers.
Other pool safety advice includes not using air-filled swimming aids instead of life preservers, no running around a pool, no diving, no holding someone under water, no swimming if lightning is in the area, and no electrical appliances near the pool.
Read more here: http://www.ledger-enquirer.com/2015/03/30/3645596_its-time-to-think-about-pool-safety.html?rh=1#storylink=cpy -
Vermont AG Joins List Of Officials Opposing Bipartisan Tsca Bill
Mar 30, 2015 | E&E News PM
By Sam Pearson
Another attorney general has weighed in on a pending bill to overhaul how the federal government regulates toxic chemicals, saying he isn't pleased about how the measure would affect his state.
A letter by the office of Vermont Attorney General William Sorrell (D) said the bill, S. 697 or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," would tie the hands of state regulators concerned about the safety of chemicals.
The letter, which was signed by Vermont Assistant Attorney General Wendy Morgan, said the bill by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) could create "a significant void in the regulation of toxic chemicals" because it would override state chemical restrictions after U.S. EPA designates a chemical as a "high priority" but before EPA takes action to restrict that chemical.
Morgan noted that under existing law, states are permitted to restrict the use of toxic chemicals if they feel EPA's actions to restrict their use have been insufficient.
Though large states like California, New York, Massachusetts and Washington have launched some of the most ambitious programs to regulate toxic chemicals, tiny Vermont has recently entered the fray as well. The state approved a chemical management bill last year that adopted a list of 66 chemicals of concern already identified by Washington state regulators and requires chemical makers to disclose whether the compounds are present in products designed for children (Greenwire, June 11, 2014).
In recent weeks, Vermont lawmakers have mulled whether they should strengthen state chemical laws in light of the possibility that Congress could enact legislation that cancels their ability to write future regulations (Greenwire, March 19). However, in its current form, S. 697 would pre-empt state restrictions enacted after Jan. 1, 2015, meaning that unless that language is amended, it's already too late for Vermont to strengthen its chemicals program.
Much of Vermont's new requirements on product manufacturers has not yet taken effect. Under the law that was enacted last year, companies aren't required to report to the state's Department of Health until July 2016.
Attorneys general of California, New York, Massachusetts, Iowa, Maine, Maryland, Oregon and Washington have previously submitted letters in opposition to the bill. Proponents, though, have the support of a group of former top EPA legal officials from the past four administrations, who have said that despite the changes, the bill would be an improvement from current law (E&E Daily, March 25).
Udall has previously described the bill as a fair compromise. He said it "has solid bipartisan support because it will provide strong protections against dangerous chemicals and because most senators believe we can't afford to let this opportunity to pass a good, achievable law slip by."
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Understanding Preemption in the Lautenberg Act
Mar 30, 2015 | Environmental Defense Fund
By Richard Denison
By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption (Senator’s Boxer’s consistent position) at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough. And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).
There has been a lot of confusion surrounding preemption in the Lautenberg Act. So in this post, I describe how preemption works under the bill, and what is and is not preempted.
In the sidebar is a summary of the key preemption provisions of the Lautenberg Act. The rest of this post is a deeper dive for those who want one.
Preemption under the Lautenberg Act
The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action. That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state. And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).
Outside of these boundaries, states are free to act on chemicals. The new system would be basically the same as the current system except when EPA decides a chemical is a high priority and may require federal action.
Below I discuss the major components to the preemption provisions of the Lautenberg Act.
(1) State actions subject and not subject to preemption
Types of state actions that are subject to preemption:If EPA requires a company to do testing, states can’t require it to test to generate the same information.If EPA requires a company to notify EPA before beginning a particular use of a chemical, states can’t require notification of that same use.If EPA places prohibitions or other restrictions on the production, processing, distribution or use a chemical, or decides that such restrictions are not necessary, states cannot place restrictions on the same uses or to address the same health/environmental concerns.States cannot co-enforce, i.e., enact and enforce requirements identical to those taken by EPA.
Types of state actions that are not preempted:State requirements for reporting, monitoring or biomonitoring, or other information collection, unless already required under TSCA or another Federal law.State actions to prohibit or restrict a chemical EPA has acted on if:the state is acting on a use of the chemical that EPA did not consider or that does not fall under EPA’s TSCA jurisdiction (Note: TSCA does not cover personal care products, cosmetics, food packaging and food additives, which are uses regulated by FDA, or pesticides, which are regulated by EPA under a different law);the state is acting under delegated authority under another federal law (e.g., the Clean Air Act);the state is acting under a state law but to address a different health or environmental concern than EPA’s action under TSCA addresses (e.g., a restriction on a greenhouse gas); orthe state obtains a waiver from EPA to act even where EPA intends to act or has acted.
In other words, even if EPA acts on a high priority chemical, states can still restrict it to deal with other goals – like limiting global warming, clean air or water, or some toxics use not covered by the federal action.
State actions grandfathered in:
Finally, the Lautenberg Act grandfathers in, regardless of subsequent EPA action, all state actions:taken before January 1, 2015; ortaken under a state law adopted on or before August 31, 2003 (this provision has the effect of grandfathering in California’s Proposition 65, which requires warning of the presence of certain chemicals in products or other settings).
(2) Preemption of state actions on high-priority chemicals
Preemption can occur at two distinct points in the bill’s process for EPA evaluation of high-priority chemicals:Preemption of certain pre-existing as well as new state actions on a chemical occurs when EPA takes final action on that same chemical.Preemption of certain new state actions on a chemical occurs when EPA starts work on that same chemical.
Preemption that occurs at final agency action on a high-priority chemical
Under the Lautenberg Act, a final agency action on a high-priority chemical triggers preemption of certain state actions, including actions taken after 2014 or taken under a law adopted after August 31, 2003, as well as potential future actions. Final agency action is either: (1) a final safety determination by EPA that a chemical meets the bill’s safety standard, or (2) if EPA finds a chemical does not meet the safety standard, a final rule regulating that chemical (which must either ban/phase out the chemical or impose restrictions sufficient for it to meet the safety standard), as of its effective date.
This trigger for preemption is similar to that provided under current TSCA. Importantly, the scope of this preemption is directly tied to the scope of EPA’s safety assessment and determination and, where required, its rule regulating the chemical. States remain free to act on any uses or health or environmental concerns not explicitly addressed by EPA.
All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver. Designations of a chemical as low-priority no longer have any preemptive effect, which was the case under the original 2013 bill, CSIA.
Preemption that occurs when EPA starts work on a high-priority chemical
Perhaps the most controversial aspect of preemption under the Lautenberg Act is that once EPA initiates work on a chemical it has designated as high-priority, states cannot undertake new actions to restrict that chemical. (Note, however, that states can take new actions to address uses and concerns that are not included in the scope of EPA’s assessment, and can continue to take other actions that do not restrict the chemical. All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver.)
The trigger for preemption of new state actions is the commencement of EPA’s safety assessment of a chemical, an early step in the process. Under the bill, deadlines apply to each step in EPA’s evaluation of a high-priority chemical: EPA has up to 3 years to complete a safety assessment and determination, and up to 2 more years to issue a risk management rule where required; these deadlines can be extended up to 2 more years in the aggregate upon showing of cause by EPA.
In this post, I’ve tried to provide a straightforward analysis of how preemption would work under the Lautenberg Act. Striking the right balance on this issue has proven to be both exceedingly difficult and critical to garnering the bipartisan support needed to pass a law. As with many compromises, no one is likely to be happy with the outcome.
Of course, preemption is only one part of the Lautenberg Act, and needs to be viewed in the broader context of all of the new authorities and mandates it would provide EPA. Click here for our broader analysis of the bill.
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Safety Groups Petition Consumer Bureau To Ban Flame Retardant Products
Mar 31, 2015 | The Hill - Regulation
By Lydia Wheeler
Consumer safety groups want federal regulators to ban products made with the flame retardant chemicals known as organohalogens.
Groups including the American Academy of Pediatrics, the International Association of Fire Fighters and the Consumers Union are petitioning the Consumer Product Safety Commission to ban consumer products containing the chemical in four categories — children’s products, furniture, mattresses and the casings around electronics.
The groups say the chemicals, which migrate continuously out from everyday household products into the air and dust, have been linked to cancer, lower sperm count, premature births, decreased IQ in children, impaired memory, learning deficits, hyperactivity, hormone disruption and lowered immunity.
Firefighters, concerned for their health, are hoping to find another fire safety solution that’s non-toxic.
“When toxic flame retardants burn — and they do burn — it creates a serious health risk for fire fighters,” Harold Schaitberger, the International Association of Fire’s general president, said in a statement. “There is significant scientific data that shows the association between firefighting, exposure to deadly toxins and cancer.”
Though there is no law pushing manufacturers to use this chemical flame retardant in products, consumer groups argue there is no law prohibiting the use of these toxic chemicals either.
Lawmakers have been working to reform the nation’s toxic chemical laws for decades, but the effort has repeatedly stalled with Republicans and Democrats failing to reach a consensus on how it should be done.
Sen. Barbara Boxer (D-Calif.) with co-sponsor Sen. Edward Markey (D-Mass.) and Sen. Tom Udall (D-N.M.) with co-sponsor Sen. David Vitter (R-La.) introduced competing bills last month, reigniting the chemical reform fight on Capitol Hill.
Meanwhile groups like the American Academy of Pediatrics are calling on the federal agency — the CFPB — to help protect one of the nation’s most vulnerable populations from what they say are some of the nation's most dangerous chemicals.
“Children’s natural behaviors –—playing on the floor, exploring different surfaces, putting things in their mouths — make them uniquely vulnerable to flame retardants and the harmful fumes and dust they emit,” Academy President Sandra Hassink said in a statement.
“These products must be made safer if we are to make children’s environments safer and secure the foundations of health for every child.”
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Possible Bans, Restrictions on Three Solvents Will Be Focus of Two Small Business Panels
Mar 31, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Possible rules banning or restricting certain uses of three solvents will be discussed by two small business advocacy review (SBAR) panels the Environmental Protection Agency will form, the agency announced March 30.
The EPA is forming the first panel to discuss a possible regulation to ban or restrict any or all of the following three ways trichloroethylene (TCE) can be used—as a commercial degreaser, as a spotting agent in dry cleaning and as an ingredient in certain consumer products.
The agency is forming the second panel to discuss possible bans or restrictions on the paint and coating stripping uses of n-methylpyrrolidone (NMP) and methylene chloride.
Wendy Cleland-Hamnett, director of the EPA Office of Pollution Prevention and Toxics, said March 3 that exploring possible rules that could restrict uses of trichloroethylene and methylene chloride would be among the office's top priorities in 2015 (44 DEN A-2, 3/6/15)
Action Follows Release of Three Risk Analyses
The EPA announcements follow its release of final risk assessments that examined particular uses of all three solvents.
In June 2014, the agency's Office of Pollution Prevention and Toxics (OPPT) issued its final assessment of TCE.
The office estimated that thousands of dry cleaning workers and employees in small commercial degreasing shops face an increased risk of contracting cancer and giving birth to children with cardiac or other health problems due to their exposure to the solvent
In August 2014, OPPT issued a final assessment of the health risks posed by methylene chloride's paint and coating stripping applications.
The agency concluded that workers have an increased risk of cancer as well as liver and neurological problems. Consumers may experience neurological symptoms when methylene chloride-based paint strippers are used around their homes, the EPA said (168 DEN A-8, 8/29/14).
Finally, on March 23, OPPT issued a final assessment concluding NMP-containing paint and coating strippers may harm the health of people, particularly unborn babies (56 DEN A-14, 3/24/15)
April 10 Deadline for Nominations
Small businesses, governments representing populations of fewer than 50,000 people and small not-for-profit organizations are invited to nominate representatives by April 10 to serve on either or both panels.
The agency is focusing on small businesses and other entities because they may be affected by the narrow uses of the solvents that the agency is considering banning or restricting.
More than 100 million pounds of each of these solvents were made in or imported into the U.S. in 2011, according to Chemical Data Reporting rule information chemical manufacturers provided the EPA.
The particular applications of the solvents that the agency examined in its three risk assessments are only a portion—sometimes a very small portion—of the larger markets for the three chemicals.
For example, the EPA's trichloroethylene assessment said about 255 million pounds of TCE are consumed in the U.S. annually, yet less than 1.7 percent of that total may go toward the three uses the agency analyzed, OPPT's risk assessment found.
Similarly, 184.7 million pounds of NMP were produced in or imported into the U.S. in 2011, by companies including Ashland Inc., BASF Corp. and the Lyondell Chemical Co., yet paint stripping constitutes a low percentage use of NMP in terms of market consumption, the agency said.
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EPA To Launch Panels On Restricting Degreaser, Paint Strippers
Mar 30, 2015 | E&E News PM
By Sam Pearson
U.S. EPA is beginning work to restrict three chemicals that cause health problems by convening Small Business Advocacy Review Panels, the agency said today.
EPA knows that N-Methylpyrrolidone, or NMP; methylene chloride; and trichloroethylene, or TCE, pose health risks. But such panels are required under the Regulatory Flexibility Act for rules that may have a significant economic impact on a substantial number of small companies, the agency said.
The panels will focus on the development of proposed rules to reduce the risk of NMP and methylene chloride exposure in paint and coating removal and the risk of TCE exposure in dry cleaning and certain consumer products "as appropriate."
NMP and TCE have been assessed under the agency's work plan chemical program. The program is EPA's attempt to prioritize its resources to review existing chemicals that it suspects cause health risks under the Toxic Substances Control Act of 1976.
Under TSCA, EPA's completion of a final risk assessment does not require the agency to take regulatory action regarding a chemical, nor does it set a legal deadline for it to implement protective measures. The agency, though, says it is trying to make the most of its regulatory authorities under the existing law, even as it pushes for lawmakers to update the 38-year-old chemicals law.
Earlier this month, EPA published its final risk assessment of NMP, which found that the chemical poses a threat to pregnant women and women of childbearing age if protective measures are not used because it can harm the reproductive system (Greenwire, March 24).
Risk assessments for the other two chemicals were completed last year, but the agency has not yet taken regulatory action to restrict their use.
The agency completed its final risk assessment of methylene chloride, which is also known as dichloromethane, or DCM, in August. The report found that 230,000 workers in the United States may be exposed to the paint-stripping chemical and that it is likely to cause cancer and neurological damage (Greenwire, Aug. 29, 2014).
EPA's final risk assessment of TCE previously identified "cancer risk concerns and short-term and long-term non-cancer risks for workers and occupational bystanders at small commercial degreasing facilities and dry cleaning facilities that use TCE-based solvents and spotting agents" (E&ENews PM, June 25, 2014).
About 255 million pounds of TCE, a volatile organic compound, is used in solvents each year in U.S. industrial and commercial processes, and approximately 184 million pounds of NMP is produced or imported into the country each year, according to EPA data.
The agency said eligible representatives of small businesses must be nominated by April 10 to provide recommendations to the Small Business Advocacy Review Panels, which will consist of representatives from the Small Business Administration, EPA and the White House's Office of Management and Budget.
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Biologists, Other Scientists Sought for PCB Meeting
Mar 31, 2015 | BNA Daily Environment Report
The Environmental Protection Agency is asking that biologists, toxicologists, epidemiologists and other scientists who focus on the health effects of polychlorinated biphenyls (PCBs) other than cancer be nominated to participate in a June 17-18 meeting the agency will host, according to a March 30 agency announcement. The EPA's Integrated Risk Information System program's meeting will discuss non-cancer health problems PCBs can cause. Nominations are due April 13. Additional information and a link to nominate a scientist are available from the National Academies, which is helping the IRIS program broaden the range of scientists who participate in the development of its chemical assessments http://dels.nas.edu/global/best/iris-experts.
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Healthy Child Healthy World and EWG Fight for a Better Environment for Children
Mar 30, 2015 | Environmental Working Group
By Kelly Herman
The loss of a family member is devastating – even more so knowing that the death might have been preventable. Many of us have had to deal with cancer that could be linked to toxic chemical exposure, and many families have lost loved ones as a result.
James and Nancy Chuda founded Healthy Child Healthy World after their daughter’s life was cut short by Wilms’ Tumor, a rare form of cancer. My parents, too, lost their youngest daughter, my sister, to cancer when she was three. Now, as a mother of a three-year-old myself, their stories resonate with me more than ever. For this reason and many others, I am thrilled to be the new program director for HCHW, a new EWG program. My team will bring families cutting-edge research and guidance that empowers them to take action against harmful chemicals.
HCHW’s groundbreaking merger with EWG will fill a void in national leadership in children’s environmental health. We are poised to be the go-to authority to give parents the resources to take action and protect their children against harmful chemicals. And EWG’s science-based research will provide the parents, families and caregivers in the HCHW community with the knowledge they need in the form of easy-to-digest tips and other tools.
EWG has long been a powerful force in advocating for cleaner, healthier and safer products and holding government and business accountable. EWG works tirelessly to change the law where necessary, to move markets, and to hold government and business accountable. Right now, EWG is leading the fight against the recently proposed industry chemical regulation bill (S. 697), which in its current form it would fail to ensure that chemicals in consumer products are safe for children, for public health and for the environment. In some ways, this new bill would be worse than the existing Toxic Substances Control Act – a law so broken that EPA was unable even to ban asbestos, which kills thousands of Americans each year.
In this way and many others, EWG works constantly to ensure that chemicals in consumer products are proven safe for all of us, especially children. It is truly inspiring for us at HCHW to work with a team of passionate, dedicated staff who believe in keeping children safe from chemicals.
As a major program of EWG, HCHW now has access to a team of talented scientists, experts, lawyers, advocates, journalists and programmers as it works to promote children’s health. We will bring the latest science and news in environmental health to parents and caregivers so they can empower themselves to advocate for laws and business practices that protect children from exposure to hazardous chemicals and pollutants. Parents engaged with our content will also discover a wealth of healthy lifestyle resources for people of all ages at EWG.org. This merger allows us to reach more people, disseminate more information, influence more policies and promote solutions for a healthier, greener, safer world.
Together, we are a stronger organization with a unified voice for children’s health and environmental safety. More than ever, now is the time to fight for a healthy and safe environment for our children. I hope you join us as we embark on this momentous endeavor.
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Aboveground Tank Inspections Limited In Bill Signed by West Virginia Governor
Mar 31, 2015 | BNA Daily Environment Report
By Bebe Raupe
West Virginia protections from aboveground storage tank hazards have been significantly scaled back less than a year after their adoption in the wake of a chemical tank spill that tainted the water supply of 300,000 residents.
Under the new law, only tanks within 1,000 feet of a water supply or containing more than 50,000 gallons will be subject to inspection requirements. The law enacted in 2014 would have covered all 48,000 aboveground tanks in the state's inventory.
Bill Price, president of the West Virginia Environmental Council, told Bloomberg BNA March 30 the new legislation (S.B. 423) amending the 2014 Aboveground Storage Tank Act represents “a significant rollback in the protections put in place last year” (63 DEN A-17, 4/2/14).
The legislation, signed by Gov. Earl Ray Tomblin (D) March 27, cuts the number of storage tanks subject to state oversight by 75 percent.
Roughly 12,000 tanks located near public surface water supplies will continue to be held to inspection and integrity standards put in place in 2014, while 36,000 other tanks registered with the state will not.
At the bill signing Tomblin said the 2014 law led to collection of valuable information, including the 48,000-tank inventory, but now the state's focus should be on tanks that contain hazardous chemicals and threaten water supplies.
Legislative Changes
Under the new law, which takes effect June 12, tanks within a state-specified “zone of critical concern” and those containing at least 50,000 gallons of hazardous liquids will be held to existing tank standards.
West Virginia defines a “zone of critical concern” for a public surface water supply as within 1,000 feet of a main waterway used for drinking water or 500 feet from a tributary; the bill also applies this “zone” criteria to tank facilities upstream of where a spill would take 10 hours or less to reach a public water intake.
The new law requires that tanks in a zone of critical concern or containing more than 50,000 gallons be inspected every three years; tanks outside the zone do not have to be inspected. The 2014 law required annual inspections for all aboveground tanks.
The 2014 measure was triggered by an aboveground tank release of about 10,000 gallons of 4-methylcyclohexane methanol into the Elk River upstream from a public water intake portal, prompting a “do not use tap water” order for nine West Virginia counties (08 DEN A-13, 1/13/14).
Within days, Tomblin proposed legislation (S.B. 373) to give the West Virginia Department of Environmental Protection “tools” to prevent another similar incident by establishing a chemical storage tank regulatory program (14 DEN A-13, 1/22/14).
Reaction to 2014 Law
Unanimously approved by both chambers of the legislature, the measure—which established new storage tank requirements, including regular inspections and stricter permitting—was signed April 1, 2014, by the governor.
Since then, opponents have complained that it was a knee-jerk reaction, one with costly unintended consequences for business, like forcing registration of tanks containing saline water or milk.
With Republicans in charge of both chambers for the first time in 80 years, the “business hardship” argument gained traction this legislative session, particularly claims of duplicative regulation put forth by the coal, oil and gas industries, Price said.
He said supporters of the 2014 law had argued for no changes “until there could be a specific analysis of S.B. 373 to see if there were duplicate or unnecessary regulation.” The law hasn't been in effect long enough to evaluate its impact, he added.
A year ago, West Virginians were told that the chemical spill from an aboveground tank “was a wake-up call” for the state, said Price, but now “the political leadership is back asleep.”
Addressing the “knee-jerk reaction” complaint, Price said last year's bill went through numerous committees, a public hearing and a WVDEP rulemaking process that included public comment, unlike this year's measure.
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The Short Answer: Earthquakes and Drilling
Mar 30, 2015 | The Wall Street Journal
By Daniel Gilbert
Across the central U.S., oil-patch communities have been rocked by swarms of small earthquakes that some scientists believe may be linked to oil and gas activity. Now, The Wall Street Journal reports, some Oklahoma residents are suing energy companies over damage they say was caused by quakes, leaving the oil and gas industry worried about liability.
Q: Can humans trigger earthquakes by injecting fluid into a hole in the ground?
A: Yes, but not just any hole. Scientists have known since at least the 1960s that injecting fluid into a geologic fault can reduce the friction between two slabs of rock, causing them to slip. The risk of causing an earthquake tends to be greater the deeper the wells and the more pressure involved. Regulators in Oklahoma began collecting data earlier this month from companies on whether they are disposing of wastewater into what is called “basement rock,” a deep layer of rock that contains many natural faults.
Q:Does that mean hydraulic fracturing can cause earthquakes?
A: There are few known cases of hydraulic fracturing, or fracking, triggering an earthquake. Fracking does involve pumping millions of gallons of fluid underground at a high enough pressure to crack open dense rock. But the pumping tends to happen at shallower depths and for much shorter intervals than injecting wastewater into disposal wells.
Q: But in Ohio, researchers concluded that fracking likely triggered a series of small quakes in the state in 2014, according to a study published earlier this year. Is there a pattern between disposal wells and earthquakes outside of Oklahoma?
A: Yes. The pattern exists across much of the central U.S. But some drilling hotbeds, like North Dakota’s Bakken Shale, haven’t seen a major increase in quakes for reasons that remain unclear.
Q: Is burying wastewater from drilling and fracking the only way to dispose of it?
A: No. Companies have increasingly sought to recycle the chemical-laden water that flows up wells along with oil and gas, and reuse it for fracking, especially in drought-ridden areas. But injecting underground remains the cheapest method of disposal in many states and is predominant in Texas and Oklahoma.
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EPA Chief: Keystone Wouldn’t Be A ‘Disaster’ For Climate
Mar 30, 2015 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency (EPA) said the Keystone XL pipeline would not be disastrous for the climate.
Gina McCarthy’s comments on Monday came despite her agency’s position that low oil prices could mean that Keystone will have more of an impact on the climate than previously thought.
Politico’s Mike Allen asked McCarthy if Keystone would be a “disaster” for the climate.
“No,” McCarthy responded at an event Politico hosted, “I don't think that any one issue is a disaster for the climate.”
Keystone's climate impact was the focus of a letter the EPA sent in February to the State Department, which is evaluating whether to approve the Canada-to-Gulf Coast oil pipeline, which would carry oil sands from Alberta.
The EPA said that with oil prices so low, Keystone might spur more oil sands production than would happen without the pipeline.
McCarthy said that the EPA’s comments only state the fact oil sands and their refining process emit more greenhouse gases than other petroleum products and that State should examine the impact of low oil prices.
“It was simply the normal way in which EPA comments, which is to take a look at the analysis … and to make sure that people are looking at the changes in oil prices and what that means,” she said.
McCarthy’s assessment on Keystone’s climate impacts are in contrast to what environmental groups say.
The League of Conservation Voters, reacting to the EPA’s February comments on Keystone, say they “confirm that Keystone XL fails the president’s climate test. From the risk of spills to a dramatic increase in greenhouse emissions, it’s clear that tar sands oil should stay in the ground.”
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EPA’s McCarthy: Keystone Alone Wouldn’t Be Climate Disaster
Mar 30, 2015 | PoliticoPro
By Andrew Restuccia & Elana Schor
EPA Administrator Gina McCarthy said Monday that building the Keystone XL oil pipeline alone would not be a disaster for the climate, as some opponents of the project contend.
“No, I don’t think that any one issue is a disaster for the climate, nor do I think there is one solution for the climate change challenge that we have,” McCarthy said during an interview with POLITICO’s Mike Allen.
Keystone critics have long alleged that the pipeline, if approved, would greatly exacerbate climate change.
And EPA’s concerns about Keystone’s climate impact have given ammunition to environmentalists fighting the project. In comments to the State Department released in February, the agency said State should give “additional weight” to whether the sharp drop in oil prices in recent months would increase the pipeline’s environmental impact and stimulate production in the carbon-rich Canadian oil sands.
McCarthy, in her interview with POLITICO, stressed that those EPA comments did not come to any conclusion about the pipeline, and she pushed back on the criticism from Canada’s ambassador to the U.S., Gary Doer.
“I have great respect for the ambassador, but he should just relook at the comment letter that we put in,” she said.
TransCanada spokesman Mark Cooper countered that despite EPA’s comments, the current downturn in oil prices would “not significantly impact whether the oil sands will be developed.” In addition, Cooper noted, Keystone’s 700,000-plus barrels of heavy crude imports would displace “foreign heavy oil that produces similar or greater amounts of” emissions.
One anti-Keystone group said McCarthy’s statements appeared to diverge from what the agency told the State Department, which could finish its long-delayed review of Keystone within weeks or even days.
“Gina McCarthy would do well to look at comments published by her own EPA, warning that Keystone XL would accelerate development of the tar sands oil field in Canada, which in turn would mean game over for our climate,” Karthik Ganapathy, spokesman for the green group 350.org, said by email.
Once Secretary of State John Kerry finishes weighing whether Keystone’s construction is in the national interest, President Barack Obama is poised to make the final call on the pipeline — a decision that has no binding deadline.
Other green groups said they didn’t see McCarthy’s Keystone comments Monday as a shift in the EPA’s view. Jim Murphy of the National Wildlife Federation said he didn’t find her statement “concerning,” adding that EPA “has been strong throughout” in pointing to the potential greenhouse gas emissions generated by the $8 billion pipeline.
Yet McCarthy’s prominent role in Obama’s strategy to make climate change a central part of his legacy adds extra weight to her words.
Don Stewart, spokesman for Senate Majority Leader Mitch McConnell, circulated McCarthy’s comments on Twitter, adding that the EPA chief appeared to have “debunked the anti-#KeystoneXL crowd’s alarmism today. Cool.”
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Gas Industry: DOE Furnace Energy Standard Is Too Costly, Rulemaking Isn't Transparent
Mar 31, 2015 | BNA Daily Environment Report
By Rebecca Kern
The natural gas industry said a Department of Energy proposed rule to adopt a new residential furnace efficiency standard will be too costly to implement and the rulemaking process hasn't been transparent.
Members of the American Gas Association and the American Public Gas Association, along with other industry groups, spoke out against a March 12 proposed rule to amend the energy conservation standards for residential non-weatherized gas furnaces and mobile home furnaces during a March 27 public meeting on the proposal (48 DEN A-3, 3/12/15).
The proposal is a partial fulfillment of a court-ordered remand of the DOE's 2011 rulemaking for these products. If adopted, the proposed standards for both non-weatherized gas-fired furnaces and mobile home gas-fired furnaces would need to meet a 92 percent minimum annual fuel utilization efficiency (AFUE) and would have to be in compliance by 2021.
The proposed standard is for non-weatherized furnaces, which come in two forms—condensing and non-condensing. Furnaces that have an AFUE of 90 percent or above are considered condensing because they condense water out of flue gases to recoup heat. By November of this year, residential furnaces will need to comply with a baseline efficiency level of 80 percent AFUE, based on a 2007 DOE final rule (224 DEN A-3, 11/21/07).
The proposed standard would have significant environmental benefits, the DOE said. The proposed standards would result in cumulative emission reductions of 137 million metric tons of carbon dioxide, 3.424 million tons of methane and 816,000 tons of nitrogen oxides, according to the agency.
The rule would apply to the affected appliances made on or after the effective date of the final rule, which is expected to be in 2021.
Industry: Standard Is Too Costly
Dave Schryver, executive vice president of the American Public Gas Association, which represents publicly owned natural gas distribution systems, said that by eliminating non-condensing furnaces from the marketplace, the proposed rule “is taking away customer choice, discriminating against low-income persons, and precipitating fuel switching to less efficient energy alternatives, all to the detriment of the American public.”
Kathryn Clay, executive vice president of the American Gas Association (AGA), referred to DOE's own analysis which found that 20 percent of U.S. households would experience lifecycle cost increases when replacing their furnace systems. She also said in particular, DOE noted that 39 percent of low-income consumers in the South would experience the lifecycle cost increases.
“We believe DOE's economic analysis significantly underestimates the cost to consumers,” Clay said at the meeting. “We are concerned that the 92 percent AFUE proposed would impose burdensome costs, and potentially negative environmental consequences due to fuel switching and other factors.”
“According to the DOE's analysis, the majority of affected households would see no benefit, some of them bearing higher net costs under the proposed rule,” she said.
She said the Energy Policy and Conservation Act of 1975, which the standard is based upon, “is intended to be a pro-consumer statute, and a proposed standard such as this that makes many consumers worse off should not be reasonably considered to be economically justified.”
Need to Work Cooperatively
Meanwhile, Andrew deLaski, executive director of the Appliance Standards Awareness Project, a coalition to advance appliance standards, said that group supports the proposed standard, noting that “it will save more natural gas than any other standard ever issued by the Department.”
He said his group and the AGA came up with a joint proposal to provide waivers for the small percentage of consumers who face the higher costs of furnace replacement.
While this waiver process didn't succeed, he said the collaboration was “quite constructive and would have addressed some of the narrow concerns raised by the gas industry.”
He said he wants continued collaborative discussions which “have helped folks wrap their minds creatively around the opportunity to achieve large savings with the new natural gas furnace standards.”
“It's my hope that ultimately we'll be able to arrive at a final standard that will achieve at least the savings that are expected by the proposed rule, and I expect that by collaborating and working together we can increase those savings and arrive at a solution that would be even more favorable,” he said.
Industry Concern About Transparency
The natural gas industry groups also raised concerns about the nature of the standard-setting process.
“The DOE process associated with this rulemaking has consistently obscured the assumptions, data and methodologies contained in their technical documents in support of the rule,” Clay wrote in a document submitted to the public docket for the DOE meeting.
In particular, Clay wanted for the cost of the furnace equipment that DOE used in its economic justifications for the rule to be publicly available.
“The cost of units is foundational to assessment of whether this rule is economically justified,” Clay said at the meeting. “We respectfully request that given the central nature of this question, that all information pertaining to that decision simply has to be in the public domain for us to be able to reasonably assess the validity of the relevant issues.”
However, Karen Meyers, vice president of government affairs at Rheem Manufacturing Co., which produces residential and commercial water heaters and boilers, and air conditioners, said this is proprietary information manufacturers won't want to see shared publicly.
“We would highly object to all the parts and pieces of our units being made available,” Meyer said. “You cannot expect that a manufacturer is not going to object to a complete tear-down analysis that is essentially making a bill of materials available online. That is to me a completely unreasonable request.”
Ultimately, Ashley Armstrong, a member of the Appliance Standards Program at DOE, said they would work with manufacturers to try to make some of the aggregate costs available.
“We're definitely willing to work with you. We want to make our analysis as transparent as possible,” Armstrong said at the meeting. “If you want to have a conversation further with some of the manufacturers about what level of aggregate information they would be comfortable with, we would do it on an aggregate industry basis, not a model basis.”
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The EPA Defends the Clean Power Plan
Mar 30, 2015 | The Wall Street Journal
The Environmental Protection Agency has rolled out an ambitious Clean Power Plan to get states to cut their carbon emissions. And it has run up against a chorus of critics charging the agency with vast overreach.
To get an inside look at the fight, Wall Street Journal Editor in Chief Gerard Baker spoke with EPA Administrator Gina McCarthy. Here are edited excerpts of their conversation. Not an overreach
MR. BAKER: Your Clean Power Plan is the topic on everybody’s lips. It’s run into some legal challenges. Is this constitutional overreach on your part?
MS. MCCARTHY: We’re doing an extraordinary job making this the best, cooperative proposal EPA has ever put out. I am confident that we are not violating the Constitution. I feel confident we are going to get this rule over the finish line in a way that’s reasonable, appropriate and necessary in terms of actions we need to take on climate.
MR. BAKER: It is a pretty remarkable, constitutional move, isn’t it, for the EPA? Remaking the American power sector by federal instruction to the states to make these changes, without a congressional mandate.
MS. MCCARTHY: I am following the direction of the Supreme Court, that they’ve given me three times, to say that carbon has to be addressed as a pollutant under the Clean Air Act. Gina McCarthy makes the case for the constitutionality of the new carbon rules.
This is a rule that is regulating carbon pollution from the largest source of carbon pollution in this country. It is being done consistent with exactly what the statute tells us we’re supposed to do. And we are doing it in the way that brings the most flexibility to the states so that they can understand what direction they want to take.
We are not saying that they need to get a 30% reduction by 2030. We are saying that each state needs to start where they are today, look at what’s reasonable to achieve, and then they need to work with us to develop their plans for how to get there in 2030. The accumulation of those state plans result in 30% reduction.
MR. BAKER: Mitch McConnell has called on states to not cooperate with the mandate. A lot of Republican states seem to be perhaps inclined to do that. Where does that leave it?
MS. MCCARTHY: I think states are much better off crafting their own plans. ENLARGE
MR. BAKER: But if they don’t, what are you going to do?
MS. MCCARTHY: We’re going to initiate a federal plan. GINA McCARTHY | ‘We are doing it in the way that brings the most flexibility to the states.’ Photo: Gary Fong/Dow Jones
Here’s the situation. We have done outreach on this rule that has been enormously respectful of the states. I am seeing states staying at the table, rolling up their sleeves, recognizing that we presented them with an opportunity. They can create their own path moving forward.
I am not seeing them run into the night. I have every respect for states. They know how to do this, and they know that we’re going to make it reasonable. The broader picture
MR. BAKER: This is part of the broader Climate Change Initiative, the deal announced between the president and the Chinese government in November.
One of the criticisms is that, as significant as this may seem in the United States, in the global context, it’s pretty meaningless. When you look at China and India, these are small, symbolic gestures, and they aren’t going to make a big difference to how our climate change is. Gina McCarthy on what the new carbon rules will tell the international community.
MS. MCCARTHY: I couldn’t disagree more. The reason why the president was able to sit down and do the joint announcement with China was because of the seriousness of domestic action. What China did was really an unprecedented commitment.
MR. BAKER: If you look at what’s happening to Chinese growth and to the energy composition of Chinese growth, they were going to do that anyway. Does that represent a commitment?
MS. MCCARTHY: I’ve said that about the states. I’ve said, “You know, what we’re asking you to do in the Clean Power Plan is what you’d be doing anyway if you were smart economically.” So you made my case.
MR. BAKER: You can’t claim that the Chinese are making a big, bold move and a dramatic concession and then acknowledge that, well, it was going to happen anyway.
MS. MCCARTHY: They finally understood that the environment and climate change have to be part and parcel of how you grow a country and its economy. One of the reasons I think China could make the transition they’re making to increase renewables and cap emissions is because of all the challenges they’re having on air pollution.
They have to address it anyway. Why wouldn’t you address it with investments in renewables? Investment in energy efficiency? Looking at low-carbon solutions right out of the gate? That was the choice China made with the joint announcement.
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McCarthy Not Concerned About Potential Power Plan Rulings Before Paris Talks
Mar 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental Protection Agency Administrator Gina McCarthy said she is not concerned about possible federal appeals court rulings on the proposed Clean Power Plan in advance of international climate change negotiations in Paris.
McCarthy, speaking March 30 at an event presented by Politico, said the EPA does not expect that the U.S. Court of Appeals for the District of Columbia Circuit will strike down the Clean Power Plan. She indicated that the U.S. doesn't have a backup plan if the proposed power plant regulations, a key part of President Barack Obama's Climate Action Plan, were to be struck down before the Nov. 30-Dec. 11 meeting in Paris.
“I don't need a Plan B if I'm solid on my Plan A,” McCarthy said.
The D.C. Circuit April 16 will hear oral arguments in two lawsuits challenging the proposed Clean Power Plan: a lawsuit by Murray Energy that alleges the regulation violates the plain text of the Clean Air Act and a lawsuit by 12 states that challenges a settlement agreement under which the EPA agreed to propose carbon dioxide standards for power plants. All three judges on the panel that will hear both cases were appointed by Republican presidents (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).
China Agreement Highlighted
Obama has the authority to implement everything that he is looking to include in a U.S. commitment to address climate change, McCarthy said.
McCarthy pointed to the November 2014 agreement between the U.S. and China on carbon emissions as a signal that there has been a shift in the international discussion on climate issues that can be taken advantage of at the upcoming Paris talks. That joint agreement calls for the U.S. to cut greenhouse gas emissions by up to 28 percent below 2005 levels by 2025 and for China to peak its carbon emissions and increase the use of alternative fuels to 20 percent of the nation's energy mix by 2030 (219 DEN A-8, 11/13/14).
If the two largest sources of carbon emissions can reach an agreement to address climate change, then “we're going to be OK moving into Paris,” McCarthy said.
Keystone Comments Defended
McCarthy defended the EPA's recent comments to the State Department on the proposed Keystone XL pipeline.
In its letter, the EPA said that further development of Canadian oil sands would significantly increase greenhouse gas emissions (23 DEN A-10, 2/4/15).
McCarthy acknowledged that approval of the Keystone XL pipeline wouldn't be a “disaster” for the climate on its own, but she said the EPA letter advised the State Department that the extraction of tar sands is more intensive from a greenhouse gas standpoint than other forms of energy development. McCarthy described the letter as conforming to the normal way that EPA comments on environmental issues to other agencies.
“We didn't conclude anything because we're not the concluder,” she said, alluding to the fact that the State Department, not the EPA, is conducting the review.
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Agency Won't Withhold Highway Funds For Clean Power Plan -- McCarthy
Mar 31, 2015 | E&E News PM
By Jean Chemnick
U.S. EPA doesn't have the legal authority to withhold highway funding from states that opt not to comply with its Clean Power Plan, Administrator Gina McCarthy said today.
This statement comes after 57 senators went on record last week opposing EPA's withholding transportation funds from states that adopt the "just say no" strategy -- refusing to write implementation plans for the existing power plant rule. The amendment was sponsored by Senate Majority Leader Mitch McConnell (R-Ky.), a vocal advocate for states' noncompliance.
But McCarthy said today at a luncheon hosted by Politico that McConnell appeared to have his facts mixed up.
"He's getting confused between a state implementation plan under the national ambient air quality standards and this section of the Clean Air Act that the Clean Power Plan is operating under, which is a state implementation plan that is very different and does not hold those kinds of consequences," she explained during the event at the Newseum in Washington, D.C. The authority to withhold the funds pertains to states that don't conform to federal requirements for ozone.
McCarthy and other EPA officials have signaled before that the agency is unlikely to seek to withhold highway funds, though today's statement appears to take that off the table completely (ClimateWire, March 30).
But McConnell himself has expressed strong doubts in the past about the legality of EPA's withholding transportation funds from states that don't comply. In a letter to all 50 governors earlier this month, McConnell advised them that "EPA has no authority to either bring a lawsuit against any state that fails to submit a state plan, or to withhold federal funds from states that decline to submit a plan."
Still, the Senate leader made highway funding the only GOP Clean Power Plan amendment to receive a vote during last week's "vote-a-rama" on the nonbinding fiscal 2016 budget resolution. No vote was scheduled on a much-discussed amendment offered by Sen. Rob Portman (R-Ohio) that would have prevented EPA from imposing a federal implementation plan if states don't comply -- something the agency has said it will do.
The Portman amendment may have been withheld for strategic reasons, however, and is considered likely to resurface later this year (E&E Daily, March 27).
McCarthy told today's audience that most of the controversy over her agency's flagship carbon rule is inside the Beltway. EPA's "Waters of the United States" proposal, by contrast, has become a flashpoint in agricultural communities and elsewhere where water is "very personal."
"Both of them are very challenging," she said of her agency's two most controversial rulemakings. "But we can do both, and we will."
McCarthy said EPA is ready for the inevitable lawsuits that will follow from this summer's final rules for new, existing and modified power plant carbon. These could go to the Supreme Court, but McCarthy said the agency has built the rules on a strong legal and scientific foundation. And the high court has ruled three times before that EPA does have the authority to use the Clean Air Act to curb heat-trapping emissions, she noted.
"We want to make sure we get a fourth win under our belt," she said.
McCarthy waved away questions about what the administration would take to this year's high-stakes round of U.N. climate talks in Paris if the courts invalidate the Clean Power Plan.
"I don't need a Plan B if I'm solid in my Plan A," she said.
She added: "I think the good thing is that everything the president is looking at in terms of a U.S. commitment, he has the authority to do."
The White House is set to release its plan tomorrow for how the United States will meet its commitment to slash emissions between 26 and 28 percent below 2005 levels by 2025. EPA actions will be at the core of that pledge, but the document is unlikely to offer new details (Greenwire, March 30).
McCarthy also defended her agency's comments regarding the proposed Keystone XL oil pipeline, asserting that it would encourage Alberta's high-carbon oil sands industry to expand.
But she said the project wouldn't be a "disaster."
"I don't think that any one issue is a disaster for the climate, nor do I think there's any one solution to the climate change challenge that we have," she said.
The interview by Politico's Mike Allen hit some lighter notes as well, in which the Boston native disclosed her love for Dunkin' Donuts coffee -- but not doughnuts -- and the general failure of her NCAA basketball brackets this year.
She also recalled her struggle to comply with the advice not to be funny during her spot last year on "The Daily Show with Jon Stewart" (Greenwire, April 22, 2014).
"It sort of feels like it cuts my right arm off, because in any situation funny things come into my head and I try very hard at points not to let them come out of my mouth," she said.
But she said "The Daily Show" handlers told her that natural funniness was fine, "and I think I'm pretty funny."
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Koch Brothers Group Seeks to Shape Public Attitudes Against EPA Power Plan
Mar 31, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
Americans for Prosperity will continue efforts to block the Environmental Protection Agency's proposed Clean Power Plan and other policies it believes disrupt the nation's free market system, Tim Phillips, the president of the group founded by billionaire brothers Charles and David Koch of Koch Industries Inc., said March 27.
Speaking at The Wall Street Journal's ECO:nomics conference near Santa Barbara, Calif., Phillips said Americans for Prosperity is working to shape public attitudes against President Barack Obama's proposal to reduce carbon emissions from power plants.
Energy is an important issue for the group because it affects economic growth, Phillips said.
The proposed Clean Power Plan would disrupt the economy, cost Americans jobs and increase electricity rates, he said at the event.
“It needs to be eliminated immediately, he said.
The Clean Power Plan (RIN 2060-AR33) seeks to regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act. A group of coal producing companies and states are challenging the agency's proposal in an action pending in the U.S. Court of Appeals for the District of Columbia Circuit (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).
Cut Subsidies for Renewables
Americans for Prosperity, however, is working to the stamp out other environment- and energy-related policies, according to Phillips.
Specifically, the group wants the federal renewable fuel standard and subsides for wind power repealed.
At the state level, the organization has sought to roll back renewable portfolio standards.
Phillips said the goal is to get rid of subsidies for all types of energy, including fossil fuels.
“When you're working to guarantee market share, you're harming innovation,” Phillips said.
The message to eliminate incentives for renewable energy ran somewhat counter to the larger message delivered at the three-day conference, which focused on “creating environmental capital.”
Throughout the event, high-level officials from utilities, clean energy companies, technology companies and nonprofit groups explored the opportunities and challenges for bringing more solar, wind and geothermal power online.
Innovative technologies are needed to advance renewable forms of electricity, especially involving battery storage, energy company officials said.
Utility companies also need to re-envision their businesses, Nat Kreamer, president and chief executive officer of Clean Power Finance, said.
The utility business has been stable for many years, but the move toward centralized power generation, specifically rooftop solar, which operates behind the grid, is changing the traditional financial model for the industry, Kreamer said.
Traditional Financial Model Changing
Under the current model, utilities are allowed to recover their capital costs from ratepayers, Kreamer said. While some utilities are fighting to preserve the status quo, others are figuring out how to profit in the next era, he said.
Tom Siebel, chairman and chief executive officer of the high-tech startup C3 Energy, said some regulatory changes are needed in terms of cost recovery issues.
Public utility commissions allow utilities to recover all their capital costs from ratepayers, he said. The costs for new technologies involves analytics and other software that cannot be recovered under the current regulatory frameworks, Siebel said.
There is a new generation of analytical technologies that can be used to build a smart grid infrastructure that can increase the profitability of energy companies, Siebel said. “All of this innovation is taking place now.”
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EPA to Release Proposed Guidance On Exceptional Events Later in 2015
Mar 31, 2015 | BNA Daily Environment Report
By Joyce E. Cutler
The Environmental Protection Agency this year is planning to release proposed streamlined guidance clarifying exceptional events under the Clean Air Act ozone standard, EPA Associate General Counsel Lorrie Schmidt said.
If EPA decides to lower the standard, “we expect that the number of exceptional event requests that we get will increase,” Schmidt said March 27 while speaking at a session of the American Bar Association Section of Environment, Energy, and Resources meeting in San Francisco. “There's been a lot of concern with the states that they're not quite sure what they need to include to prove that something is an exceptional event and to the extent that it is clear, it's too cumbersome.”
Wildfires are the most common type of event that pushes ozone violations on a certain day and can be excluded, Schmidt said.
The agency in the past year or two met with interested parties about the wildfire ozone policy, she said. “And as a result of that we are going through a process where we will be revising the exceptional events rule and issuing wildfire ozone guidance,” Schmidt said. “We plan to streamline and clarify how you use those policies.” The proposal is due in the middle of 2015 and the final rule is expected in 2016.
The EPA in November proposed (RIN 2060-AP38) to revise the current National Ambient Air Quality Standards to somewhere in the range of 65 ppb to 70 ppb. The agency estimated its proposed rule could cost up to $16.6 billion annually in 2025, while providing up to $38 billion in annual benefits from reduced incidents of asthma, premature death and other health problems (229 DEN A-1, 11/28/14)(45 ER 3427, 11/28/14)(229 DER A-26, 11/28/14)(29 TXLR 1071, 12/4/14).
Exceptional events covered under the rule include natural events, such as forest fires and other natural disasters, and human-induced events, such as chemical spills.
Lowering the standard to 60 ppb “pretty much includes the entire country” in the map of violators, Sherry L. Scott, an environmental lawyer with Exxon Mobil Corp. in Houston, said on the panel with Schmidt.
Year-Round Monitoring
Environmental and health groups support a 60-ppb standard, around which “virtually every developed country that has an ozone standard has set it,” said Paul Cort, staff attorney with the nonprofit law firm Earthjustice in San Francisco.
“We don't see this as a radical proposal at all. We think the science is very compelling,” Cort said.
The last time EPA proposed lowering the standards in 2010—before they were withdrawn a year later—the figures were in the 60-75 ppb range, “and the science has only gotten stronger” for a lower standard and year-round monitoring in 33 states, he said. Arizona and California with sunny and warm conditions ripe for ozone formation are under year-round monitoring.
“Environmental and public health groups agree, frankly they believe, we should be doing year-round monitoring” rather than keeping the traditional ozone season, Cort said. “But at least expansion of ozone monitoring to get an accurate picture of what's going on seems like a no brainer.”
The comment period on the ozone proposal closed on March 17. The agency is under a court-ordered deadline of Oct. 1 to finalize its decision on the ozone standards.
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GOP Bill Would Block Mountaintop Mining Rule
Mar 30, 2015 | The Hill - E2 Wire
By Timothy Cama
A House Republican introduced a bill Monday that would block the Obama administration’s efforts to restrict the controversial mountaintop removal coal mining process.
The Interior Department is planning to propose soon a regulation to restrict mountaintop removal mining near streams in an effort to protect streams in Appalachia from the mining waste.
But Rep. Alex Mooney (R-W.Va.), a freshman, said the rule is part of the Obama administration’s “war on coal” and an example of how President Obama “is intent on destroying coal as a domestic energy source.”
Mooney’s bill would stop Interior’s Office of Surface Mining from going forward with the rule for at least a year, stop it from using the Clean Water Act to justify the rule and require the agency to conduct a study into the industry impacts of the regulation.
“According to industry estimates, the expected rule from OSM would shutter tens of thousands of jobs in West Virginia and hundreds of thousands nationwide,” Mooney said in the statement.
“The impact of such a serious hit to the coal industry would also have the effect of increasing home-energy prices for hardworking taxpayers.”
Environmentalists and wildlife advocates say the rule is essential to protecting streams and the ecosystems that rely on them from being damaged or polluted.
Rep. Doug Lamborn (R-Colo.), who chairs the Natural Resources Committee panel with jurisdiction over mineral resources, joined as a co-sponsor of the bill.
The House has previous voted multiple times to stop the rule, most recently a year ago.
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EPA Head Knocks McConnell’s Climate Rule Amendment
| The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency said Senate Majority Leader Mitch McConnell (R-Ky.) is “confused” about how exactly the Clean Air Act works.
EPA Administrator Gina McCarthy said that, despite the amendment McConnell sponsored last week in the Senate budget, the agency will not take away states’ highway funds if they fail to comply with the Obama administration’s climate rule for power plants.
“We actually don’t have the legal authority … to withhold highway funds,” McCarthy said Monday at an event hosted by Politico.
She attributed McConnell’s amendment to a confusion about how the climate rule will be enforced upon states. While other regulations can be enforced through federal highway funds, the climate rule cannot be.
“He’s getting confused between a state implementation plan under the national ambient air quality standards and this section of the Clean Air Act,” McCarthy said.
“This is a standard compliance system, where we set the standards, the states implement, and then the sources are responsible to achieve the emission reduction targets that are in there.”
McConnell’s amendment passed the Senate last week in its nonbinding budget resolution.
While the amendment does not hold the force of law, it says the EPA should not be allowed to withhold highway funds from states if they do not follow the rule, which is due to be made final this summer and implemented within a year.
“It says that Washington bureaucrats shouldn’t be allowed to punish innocent Americans by threatening the roads and bridges they use,” McConnell said at the time, “just because a citizen’s state may take a wait-and-see approach ... as courts rule on EPA regulations.”
McConnell spokesman Don Stewart said McCarthy’s statement “should give great comfort of the governors who intend to fight the EPA’s new regulations.”
Despite sponsoring the amendment, McConnell has maintained that the EPA cannot withhold highway funds, saying in a letter to state governors earlier this month that the agency “has no authority to either bring a lawsuit against any state that fails to submit a state plan, or to withhold federal funds from states that decline to submit a plan.”
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Lawsuit Over Potential Job Losses From Clean Air Rules Allowed to Continue
Mar 31, 2015 | BNA Daily Environment Report
By Andrea Vittorio
A federal court has rejected the Environmental Protection Agency's request to dismiss a lawsuit from coal companies alleging that the agency failed to review possible jobs losses from its proposed carbon dioxide performance standards for power plants and other air pollution rules (Murray Energy Corp. v. McCarthy, 2015 BL 86302, N.D. W.Va., No. 5:14-CV-39, 3/27/15).
Murray Energy Corp. and affiliated companies filed the lawsuit a year ago to compel the EPA to conduct the jobs impact review required for its regulations under Section 321 of the Clean Air Act, claiming that they are being financially harmed by the agency's failure to do so. Murray Energy bills itself as the largest underground coal mining company in the United States.
The agency has tried twice to get the case dismissed, first arguing that the U.S. District Court for the Northern District of West Virginia lacked subject matter jurisdiction to hear the case. That request was denied.
The EPA later argued that the companies lacked standing to bring their lawsuit in part because they are not affected by the agency's failure to conduct the jobs review and many of the rules cited by the company as needing a jobs review regulated power plants and not coal mines (33 DEN A-2, 2/19/15).
But the court disagreed, saying in a March 27 order that the coal companies have shown injuries, in the form of a reduced market for coal, that are “fairly traceable” to the actions of the EPA and those injuries are redressable, meaning if the court were to require the EPA to conduct a jobs review, the information could convince the EPA, Congress and/or the American public to rethink the regulations.
‘Zone of Interests.'
The EPA had also argued that the law's provision wasn't intended to protect the coal companies' interests.
But Judge John Preston Bailey said the coal companies do “fall within the zone of interests” protected by the Clean Air Act because one purpose of the law is “to protect industries, employers and employees from the untoward effects of prior EPA actions.”
“As such employers, the plaintiffs clearly fall within that zone,” Bailey wrote.
The judge also agreed with the coal companies' assertion of informational standing and procedural standing.
John Lazzaretti, an attorney for Murray Energy, told Bloomberg BNA March 30 that “we're very pleased with the opinion,” adding that he hopes “we can focus on the merits of the case” now that the agency's latest request to dismiss it has been denied.
Murray Energy is asking the court to prevent the EPA from issuing new regulations or enforcing certain existing rules affecting the coal industry until after a jobs evaluation is completed.
The case is scheduled to go to trial in January 2016. Justice Department attorneys representing the EPA did not respond to a request for comment.
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National Academy Panel to Advise EPA On Risks to Human Subjects in Air Studies
Mar 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An ad hoc committee established by the National Academy of Sciences will review scientific issues associated with the use of human test subjects in studies considered when the agency promulgated air pollution regulations.
The committee will consider whether the past use of controlled human-exposure studies has aided the EPA in setting standards for air pollutants and whether it is appropriate to conduct further human-exposure studies, according to the NAS website.
The EPA Office of Inspector General in 2014 found that EPA followed applicable regulations governing the use of human test subjects who were exposed to air pollutants during studies on diesel exhaust emissions and concentrated airborne particles. However, the OIG report recommended that the agency update its procedures to require additional approval for modifications to the study, update guidance on clinical follow-up requirements and update consent forms (64 DEN A-3, 4/3/14).
The 15-member NAS committee, which includes professors from the Harvard School of Public Health, the New York University School of Medicine and the University of California, San Francisco, will review recent air pollution studies performed by the EPA to assess the potential health risks to test subjects.
If the committee determines it is appropriate for the EPA to continue to conduct such studies, the committee will provide the EPA with guidance on estimating risk levels, including a template to characterize “reasonably foreseeable” risks that could be used to provide potential test subjects with information before they provide their consent.
The committee's review is expected to take about 18 months to complete.
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Climate Change, New Source Review Top List Of Justice Department Enforcement Priorities
Mar 31, 2015 | BNA Daily Environment Report
By John Henry Stam
Climate change and new source review are the biggest current environmental enforcement issues, a top Department of Justice official said at an American Bar Association meeting.
Walter Benjamin Fisherow, chief of the Environmental Enforcement Section, said, “One of the most important things we do is get tons of pollutants out of the air.”
Speaking in San Francisco March 27 at the 44th annual spring conference of the ABA Section of Environment, Energy, and Resources, Fisherow said that in the 1980s and 1990s, bringing actions under the Superfund law was the big issue, but air issues are now a higher priority.
The Comprehensive Environmental Response, Compensation, and Liability Act is now mature and the number of actions has declined, so the need to prioritize Superfund enforcement is less and less intense as sites are addressed, Fisherow said.
Enforcement at the Justice Department focuses on big cases, which currently means Clean Air Act and Clean Water Act litigation, Fisherow said. The goal, he said, quoting John Cruden, assistant attorney general for environment and natural resources, is to “take the profit out of illegal conduct.”
The Deepwater Horizon oil spill Clean Water Act litigation has taken a lot of resources and been a top priority since the 2010 spill, but the department “is almost done with the heavy lifting in the litigation” Fisherow said.
Lawrence Starfield, the Environmental Protection Agency's principal deputy assistant administrator for enforcement and compliance assurance, said the EPA's enforcement focuses on air, energy extraction, hazardous chemicals and water issues.
Next Generation Compliance
On Feb. 19, the EPA issued its draft guidance on enforcement priorities for fiscal years 2016-17.
The EPA is specifically focused on reducing air pollution from the largest sources and cutting hazardous air pollutants, ensuring compliance in energy extraction activities, reducing pollution from mineral processing operations, keeping raw sewage and contaminated stormwater out of the nation's waters, and preventing animal waste from contaminating surface and groundwater.
Starfield said the EPA's real goal is compliance. The EPA is focused on tough enforcement but also on using its Next Generation Compliance initiative as a supplement to enforcement, he said. Focusing on compliance is particularly important for regulated sectors with large numbers of small participants.
Next Generation Compliance includes clarity in rule and permit design, advanced monitoring, developing electronic reporting, making information more transparent and accessible, and developing innovative enforcement, he said.
Grant Nakayama of King & Spaulding LLP in Washington, D.C., and former EPA assistant administrator for enforcement and compliance assurance, said a Jan. 7 memo from EPA Assistant Administrator Cynthia Giles stated that Next Generation Compliance is expected to be considered in all civil enforcement settlements (14 DEN A-8, 1/22/15).
Fisherow said Next Generation Compliance is helpful in achieving compliance but the question is how to achieve it. Next Generation Compliance can't be required on its own, he said, but is often included in settlements. A supplemental environmental project that includes Next Generation Compliance will be viewed favorably by the Justice Department in settlements, he said.
“We like SEPs,” he said, noting that they can have tremendous advantages for communities impacted by violations.
Fisherow said the Justice Department will litigate for Next Generation Compliance as injunctive relief if a defendant has a history of noncompliance, but the department has not yet had to. He said the jurisdictional basis can be in dispute, but the Clean Air Act, for example, has a provision for awarding “other appropriate relief.” He said he believes Next Generation Compliance is appropriate relief.
Nakayama asked what the status of the EPA's audit policy is, and Starfield said the new owner audit policy is still in effect but that the EPA is looking to modernize its policy. He said an announcement is likely during the next couple of months on the policy. He also said he expects to be seeing more self certification and third-party verification.
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States Oppose More Stringent Test For Negotiated CERCLA Settlements
Mar 31, 2015 | BNA Daily Environment Report
By Steven M. Sellers
The U.S. Supreme Court should reverse a federal appeals court decision requiring stricter scrutiny of Superfund settlements reached by the states, according to a March 20 amicus brief filed by nine state attorneys general (Arizona v. Ashton Co., Inc., Contractors and Eng'rs., U.S., No. 14-1019, 3/20/15).
The brief asserts that the decision by the U.S. Court of Appeals for the Ninth Circuit “threatens to hinder the State's ability to efficiently resolve liability for environmental contamination under the Comprehensive Environmental Response, Compensation, and Liability Act.”
Colorado filed the brief joined by Hawaii, Indiana, Maine, Michigan, Nevada, Ohio, South Carolina and South Dakota.
The states support Arizona's petition for certiorari, in which it challenges the Ninth Circuit's 2-1 decision that a federal district court gave inadequate scrutiny and undue deference to state-negotiated consent decrees designed to clean up a large landfill in Tucson, Ariz.(33 DEN A-6, 2/19/15)
Fewer than 2,000 of an estimated 450,000 contaminated sites nationally are overseen by the federal government, making the validity of state-negotiated CERCLA settlements of paramount concern, the attorneys general argue.
They assert that the Ninth Circuit ruling threatens to significantly impair the validity of state agreements with private parties who rely on CERCLA's contribution protection provisions.
The brief adds that states “capably negotiate” CERCLA settlements, apply “considerable expertise” in doing so and should not be treated like the “secondary players” evidenced in the Ninth Circuit's holding.
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(ACC Mentioned) Crude-by-Rail Rule Underestimates Costs, Number of Tank Cars, Industry Tells OMB
Mar 31, 2015 | BNA Daily Environment Report
By Rachel Leven
The Transportation Department underestimated the number of tank cars affected by its upcoming rule governing the rail transport of crude oil and other flammable liquids, industry groups said in White House records posted March 30.
The Pipeline and Hazardous Materials Safety Administration estimated in its proposed rule that roughly 66,000 tank cars would have to be retrofitted. The American Petroleum Institute, the Railway Supply Institute and Bridger LLC, however, separately disputed those estimates, with API saying the actual number is nearly 155,000 tank cars.
The number of tank cars could affect PHMSA's deadlines and estimated industry costs for retrofitting and phasing out legacy tank cars used to transport crude oil. Environmental advocacy groups and the Greenbrier Cos. have said an aggressive phaseout is feasible, while the energy industry and other tank car manufacturers have expressed concerns regarding car manufacturing capacity.
The revised tank car estimates were presented in three separate March meetings on the PHMSA enhanced tank car and operational controls rule, which companies including Exxon Mobil Corp. and GATX Corp. attended. The American Chemistry Council attended another March 11 meeting on the rule.
PHMSA's final rule is under review at the White House's Office of Management and Budget and is expected to be released in May. There have been nine meetings on the final rule since the White House received it Feb. 5.
Affected Tank Cars
Even among industry groups, estimated numbers of tank cars that would need to be retrofitted differed. While API estimated nearly 155,000 tank cars would be affected across all flammable liquids rail transport, the railway group's Committee on Tank Cars estimated closer to 128,000 tank cars would be affected.
Bridger, a midstream logistics company that delivers oil from the Bakken region to refineries, focused solely on crude oil transport service. PHMSA estimated roughly 41,000 tank cars would need to be retrofitted in this transport. But Bridger cited an industry study by the Brattle Group estimating 49,000 tank cars and a Cambridge Systematics Inc. estimate of 88,000 tank cars.
The organizations cited different aspects of PHMSA's estimate that made it incorrect or not up-to-date. For example, the API handout from its March 24 meeting said that by not accounting for cars that transport certain “other flammables,” PHMSA missed 39,000 tank cars that would be affected.
The railway institute highlighted that even though the PHMSA rule only applies to “High-Hazard Flammable Trains” (HHFT)—trains that have 20 or more carloads of a Class 3 flammable liquid—it doesn't narrow the scope of which cars must be modified or phased out. Shippers or owners have no control over the train length and it is “not practical” to have separate HHFT fleets, the institute handout said.
Timeline, Capacity, Costs
Capacity and other limitations mean it isn't realistic to expect all tank cars in crude oil, ethanol and Packing Groups 1 and 2 services to be modified by October 2018, as the PHMSA rule proposed, the railway group said.
The API handout indicated it isn't realistic to adopt Transport Canada's time line for retrofitting and phasing out tank cars either. Among the Canadian requirements, no jacketed CPC-1232 cars (the newer tank car model) would be used in crude-by-rail and no DOT-111 or CPC-1232 cars would be used in any flammable liquids rail transport as of May 2025.
The larger number of tank cars that need to be retrofitted also significantly increases estimated costs for industry, according to the railway institute handout from its March 13 meeting. With 128,000 affected tank cars, the PHMSA modifications would cost $3.9 billion rather than the PHMSA-estimated $2.2 billion, it said.
Further, Bridger said the PHMSA proposed rule underestimated the costs of its tank car modification options. PHMSA's rule said its car modification options for CPC-1232 cars ranged in cost from $26,000 per car to $33,000. But an AllTranstek LLC analysis showed costs would be roughly $46,000 to $65,000, the Bridger handout said.
Tank Car Standard
Both the railway group and Bridger offered their insights into what tank car requirements should be included in the final rule.
The railway institute supported PHMSA's “Option 2” requirements, known as the Association of American Railroads 2014 Tank Car for crude oil and ethanol service. The institute also supported the “Option 3” requirements—enhanced CPC-1232 tank cars—for other new tank cars. The main difference between the two options is that the cars carrying crude oil and ethanol would have thicker shells, 9/16 inch rather than 7/16 inch.
For modifying existing tank cars for Packing Group 1 and 2, or most and second-most dangerous materials, the railway institute supported retrofitting tank cars to “Option 3” requirements without “top fittings” protection. The institute was opposed to use of electronic controlled pneumatic brakes.
Meanwhile, Bridger supported tank car specifications proposed by API and the railroads association in September 2014. These included, new tank cars similar to “Option 2” with 1/2-inch shells.
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Energy Agency Provides Monthly Crude-by-Rail Data
Mar 31, 2015 | BNA Daily Environment Report
The U.S. Energy Information Administration will now offer monthly data on the rail transportation of crude oil, the agency announced March 30. The data can be used to analyze the movement of crude oil, including from Canada, among other findings, the EIA said in a news release. The use of this mode of transport to move crude oil has increased significantly during the past five years and has garnered significant attention due to several high-profile derailments that harmed the environment and, in some cases, members of the public. The project's launch includes data from January 2010 through the current reporting period of January 2015, the release said. The agency used information from the Surface Transportation Board and other sources of data, it said. The agency will hold a webinar March 31 at 11 a.m. to explain the data. Interested individuals can register for the webinar at http://www.eia.gov/petroleum/transportation/webinar/index.cfm.
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