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(ACC Mentioned) Senate Committee Guts Inslee Plan to Clean Up Toxics in Fish
Apr 6, 2015 | Investigate West
By Christopher Dunagan
With the feds pressing Gov. Jay Inslee to better protect consumers from toxic chemicals in fish, a Senate committee gutted a potentially pivotal bill to allow the state to set up a new toxic-cleanup program. -
(ACC Mentioned) Lawmakers Ax Provision That Would Have Allowed Agency to Ban Chemicals
Apr 6, 2015 | E&E - Greenwire
A Washington legislative committee removed a key component of Gov. Jay Inslee's (D) plan to cut toxic runoff to the state's waterways, yielding to businesses' concerns over the legislation. -
Chemical Spills from Power Plant Into Lake Erie
Apr 6, 2015 | E&E - Greenwire
The U.S. Coast Guard is investigating a chemical spill in Lake Erie believed to originate at an outflow pipe at a Cleveland Public Power plant. -
The Petrochemical Industry Has Billions in Projects on Tap, But Not Enough Workers to Build Them
Apr 6, 2015 | Fuel Fix
By Rhiannon Meyers
The petrochemical industry’s struggle to find enough welders, pipefitters and skilled laborers to build the billions in new projects slated for the Gulf Coast is a problem of its own making, the head of a construction education foundation said this week. -
Long-Term Development Key to Maintaining Petrochemical Labor Pool
Apr 6, 2015 | E&E - Energywire
To address a shortage of welders, pipefitters and skilled laborers, the petrochemical industry must stop treating those workers as a commodity, said Don Whyte, president of the workforce development group NCCER. Craft laborers need years of training to meet minimum qualifications and a decade or more to become top performers, but the industry offers few opportunities for development, Whyte said in a webinar last week on the challenges of rebooting petrochemical projects on the Gulf Coast. "I've seen five or six downturns now, and it seems like when we hit that downturn, we think we can simply slow down or turn off that pipeline, and then when the recovery hits, turn that pipeline back on," he said. "What we're seeing today in our current labor market is some of the results of trying to constantly turn the pipeline off and turn it back on." In Freeport, Texas, for example, Dow Chemical Co. is building a multibillion-dollar ethylene cracker and propane dehydrogenation unit, which will require thousands of construction workers. But after years of industry stagnation, companies like Dow are struggling to find the laborers they need. "I remember leaders in Dow saying, 'We're never going to be building another cracker on the Gulf Coast,'" Jeff Patterson, head of on-site engineering groups at various Dow manufacturing facilities, said during the webinar. "That whole dynamic has changed." Dow has expanded the geographic reach of its recruitment efforts to bring in managers who have handled major overseas projects, Patterson said. But the search for domestic laborers who will actually carry out the work is cutthroat. To attract workers, companies are offering higher pay and better benefits, which can lead to increased turnover as employees leave in search of a larger paycheck, Whyte said. "The one good news in that highly competitive market is when the wages go up, typically what we see is our recruiting greatly improves," he said. "So if there is a silver lining, that's a silver lining on a competitive market" (Rhiannon Meyers, Fuel Fix, April 2). -- PK -
EPA Ozone Proposal Spells Doom for San Antonio's Compliance Streak
Apr 6, 2015 | E&E - Greenwire
By Amanda Peterka
San Antonio prides itself on being the only large U.S. city with a perfect record on federal Clean Air Act compliance. -
Liberals, Law Profs Rain Fury on 'Sellout' Laurence Tribe
Apr 6, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Laurence Tribe's days as a liberal icon are over for green groups and many environmental law professors. -
The Hill Must Do Better on Climate
Apr 6, 2015 | The Hill - Congress Blog
By Sylvie Stein
I recently wrote an op-ed entitled “To the Media: Don’t Help the Merchants of Doubt.” In it, I asked the media to stop publishing factually inaccurate information on climate change, such as those made in a March 20 piece by climate denier William O’Keefe. -
EPA Sends Controversial Water Rule to White House
Apr 6, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) Monday sent to the White House its controversial regulation to redefine the extent its authority over water pollution control. -
Senate Republicans Seek To Advance House-Passed EPA Cyanotoxins Bill
Apr 6, 2015 | InsideEPA
By Amanda Palleschi
Senate Republicans are pushing to quickly approve a bipartisan bill that would require EPA to quickly develop a strategy for managing the risks of cyanotoxins in drinking water, hoping to gain enough Democratic support to approve the legislation through unanimous consent. -
EPA Sends Final CWA Rule For OMB Review Ahead Of Potential April Release
Apr 6, 2015 | InsideEPA
By Bridget DiCosmo
EPA has sent its final Clean Water Act (CWA) jurisdiction rule for White House Office of Management & Budget (OMB) pre-publication ahead of what they agency says is a target April release date, the last major regulatory step before EPA can issue the rule that its top water official says is vital to provide certainty on the law's reach.
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(ACC Mentioned) Senate Committee Guts Inslee Plan to Clean Up Toxics in Fish
Apr 6, 2015 | Investigate West
By Christopher Dunagan
With the feds pressing Gov. Jay Inslee to better protect consumers from toxic chemicals in fish, a Senate committee gutted a potentially pivotal bill to allow the state to set up a new toxic-cleanup program.
Inslee now opposes the legislation, saying it would leave him without tools he needs to head off federal intervention in Washington’s water-pollution-control system.
Inslee’s toxic-cleanup plan calls for attacking pollution at its source, even before the pollutants can get into waterways where they accumulate in fish that are then eaten by consumers. Inslee contends that his approach would be more effective than traditional cleanup methods focused on industrial and sewage discharges. Most pollution nowadays comes from stormwater — a foul mixture of pollutants that washes off roadways, parking lots and other hard surfaces when it rains.
Inslee’s plan — and the focus of the legislation (HB 1472) — is to identify the most dangerous chemicals, track them back to their source and look for safer alternatives.
Originally, the governor’s legislation would have required the Department of Ecology to develop these so-called “chemical action plans,” including ideas for removing toxic substances from the environment. The agency could also order chemical manufacturers to consider safer alternatives and even ban chemicals when safer ones are available.
But the Senate Committee on Energy, Environment and Telecommunications on Tuesday voted to take away Ecology’s ability to ban chemicals and limited the number of toxic substances Ecology could study.
“Why are we getting boxed in?” asked Rob Duff, the governor’s environmental policy adviser. “This bill provides almost no help. We really hope the Senate changes course and gives us a bill that works.”
Inslee intends for the proposed chemical-action plans to bolster his bid to avoid federal intervention in the state’s water-pollution-control system — and he is backed by industry and municipalities that fear harsher federal regulation.
The state’s water-quality standards are required under the federal Clean Water Act to be updated to reflect new information, but the state has been under fire for years of delay in approving the new standards, now scheduled for adoption in August. The U.S. Environmental Protection Agency already has indicated that the state’s proposed standards may not be strong enough.
Without a comprehensive state law, the governor will have a hard time convincing the EPA that his program can be more effective at cleaning up the state’s waters than with water-quality standards alone, Duff said.
The House approved Inslee’s plan with a 63-35 vote, but only after stripping away any authority for Ecology to ban chemicals. Instead, any bans would have to be approved by the Legislature, where industry officials can lobby against Ecology’s plans. Chemical and product manufacturers made it clear during testimony on the bill that they did not trust the agency to make such critical decisions.
“This is an unprecedented delegation of legislative authority to the executive branch,” said Mark Greenberg of the American Chemistry Council, speaking against the bill before the House Environment Committee. “The power to ban any product in any home in Washington state is a very potent power.”
Industry officials are still chafing under the state’s Children’s Safe Products Act, a 2008 law that requires manufacturers to report products containing 66 toxic compounds. They argue that the list of covered chemicals developed by state agencies is overbroad, and some of the chemicals should not be considered hazardous.
Although the governor’s bill approved by the House was weaker than Inslee preferred, he went along with it. Ecology would still be able to develop chemical action plans and recommend that the Legislature ban chemicals when safer alternatives could be found.
But the governor could not accept the bill coming out of the Senate committee this week. Under the amended bill, Ecology would not be allowed to conduct an assessment of safer alternatives without approval of the Legislature. The bill also specified that chemical action planning could be done on only two lists of chemicals — the federal “priority pollutant list” and the state list of “persistent bioaccumulative toxics.”
“It doesn’t allow us to address emerging chemicals of concern, which are the most important ones to tackle,” Duff said.
Such chemicals include pharmaceuticals and personal-care products such as deodorants and shampoos. Scientists in recent years have documented that they are widely dispersed in the environment by stormwater, septic systems and sewers. Other chemicals worthy of study but not on the lists are certain phthalates, Duff said. These chemicals are used in a variety of applications including making plastics softer, with some linked to cancer and other health effects.
Most Democrats on the Senate committee voted against changing the bill from the House version, and they ultimately voted against the entire bill.
“I am extremely disappointed with this body of the Senate,” said Sen. Kevin Ranker, D-Orcas Island, before the vote. “We have a watered-down vehicle that will sound good, so we can stand up and say we did something, but I don’t think we are doing nearly enough.”
“I don’t believe this is a watered-down bill,” countered Sen. Doug Ericksen, R-Ferndale, chairman of the committee. “I think this is a big step forward in the right direction.”
Ericksen argued that the Legislature needs to retain authority over what should be done with chemicals in a free market. The number of chemicals to be studied — four every two years — “would be within a scope that this legislative body could handle.”
It is unfortunate, Ericksen said, that the chemical action plans are being linked to water-quality standards required by the federal government. Ericksen said the EPA is likely to judge the adequacy of the state’s water quality standards under federal rules, without regard to the governor’s toxic-cleanup plan.
Inslee has linked the two issues together because he contends that chemical action plans would be more effective at reducing overall pollution, since only a fraction comes from industrial and sewer discharges. It doesn’t make sense to tighten limits on discharges from industrial pipes, he argues, until something is done about other sources of pollution that could be addressed with action plans.
New water-quality standards proposed by Ecology are at least as restrictive as the existing standards, except for arsenic, but many environmentalists and tribal officials expected the revisions to result in far greater restrictions for more than 100 regulated chemicals — and they seem to have the support of Dennis McLerran, regional administrator for the EPA.
McLerran has said the calculation for the state standards should maintain the existing cancer risk rate of one case of cancer for every million people exposed, while the governor has proposed increasing the risk factor by ten times, to one case in every 100,000 people exposed. Retaining the one-in-a-million rate would require reductions in chemical discharges from industrial and sewage-treatment pipes, often at increased costs. That’s because other factors in the equation have been updated, including estimates of how much fish people eat and how toxic certain chemicals are to humans. (InvestigateWest previously revealed how business interests, especially The Boeing Co., used their influence with the administration of former Gov. Christine Gregoire to block updates of the water-quality standards to protect fish consumers.)
Inslee requested a total of about $12 million for his entire program, which goes beyond chemical action plans into research on stormwater pollution, grants for clean technology, support for local pollution investigators, monitoring toxics in people and more. The House set aside about $6 million and the Senate about $4 million to support the program, although they would spend the money on different projects.
Meanwhile, Ericksen noted that his committee successfully merged the chemical-action legislation with a separate bill to ban five toxic flame retardants, commonly used to reduce the risk of fire in furniture, children’s clothing and electronic devices. This is the third year that the ban been proposed.
“For many years I’ve been told that the Legislature can’t step up and ban the chemicals,” he said. “Well, we’ve tried year after year to step up and ban the chemicals. What gets in the way … is the continual effort to expand the size and scope of government.”
Ivy Sager-Rosenthal of Washington Toxics Coalition said the Legislature’s failure to ban toxic flame retardants the past two years is exactly the reason why a state agency should be given that authority.
The need for an assessment of alternative chemicals is equally clear, she said. The Legislature banned the first group of toxic flame retardants in 2007, after the chemicals started showing up in people and their homes. In response to the ban, industry substituted other chemicals that turned out to be equally hazardous.
“There is nothing in current law that requires them to switch to safer flame retardants,” Sager-Rosenthal said. “We are on this toxic treadmill of turning over one chemical after another. That is why we think a state agency should have the authority to assess safer chemicals and ban unsafe ones as they see fit.”
Washington has been a leader when it comes to protecting people against chemical exposure, she said. This state was one of the first to ban bisphenol-A in baby bottles, lead in toys and mercury in a variety of products. Now studies are showing that a common replacement for bisphenol-A, known as bisphenol-S, creates its own significant health problems.
“It used to be when we did these banning bills, people would argue over the science,” she said. “Nobody is arguing now that these chemicals should not be banned.”
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(ACC Mentioned) Lawmakers Ax Provision That Would Have Allowed Agency to Ban Chemicals
Apr 6, 2015 | E&E - Greenwire
A Washington legislative committee removed a key component of Gov. Jay Inslee's (D) plan to cut toxic runoff to the state's waterways, yielding to businesses' concerns over the legislation.
Inslee had sought approval of the bill, which would allow the state's Department of Ecology to regulate chemicals discharged into stormwater that eventually reaches streams and bays. The bill would have set up a broad chemicals management program, with the agency working to identify the most harmful chemicals and look for safer alternatives.
The DEC would have been required to develop "chemical action plans" and could order chemical manufacturers to consider safer alternatives or ban chemicals if it determined they were not necessary.
Lawmakers approved the bill last week, but the Senate Committee on Energy, Environment and Telecommunications amended the proposal to remove the DEC's ability to ban chemicals and limit the number of chemicals it could study. House lawmakers approved the bill but required the DEC to receive the approval of lawmakers before banning a chemical.
Mark Greenberg, a lobbyist for the American Chemistry Council, told state lawmakers the change was needed because granting DEC the power to ban chemicals was an "unprecedented delegation of legislative authority to the executive branch."
Inslee and other Democrats said they now oppose the bill.
"We have a watered-down vehicle that will sound good, so we can stand up and say we did something, but I don't think we are doing nearly enough," said state Sen. Kevin Ranker (D) (Christopher Dunagan, Investigate West, April 5). -- SP
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Chemical Spills from Power Plant Into Lake Erie
Apr 6, 2015 | E&E - Greenwire
The U.S. Coast Guard is investigating a chemical spill in Lake Erie believed to originate at an outflow pipe at a Cleveland Public Power plant.
The spill was reported Friday in a yacht club basin and appeared to have stopped by Saturday, Coast Guard officials said, though cleanup continued yesterday.
Cleveland Public Power has accepted the cleanup responsibility, according to the Coast Guard. No immediate impacts on drinking water or wildlife have been reported (Columbus Dispatch, April 6). -- AW
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The Petrochemical Industry Has Billions in Projects on Tap, But Not Enough Workers to Build Them
Apr 6, 2015 | Fuel Fix
By Rhiannon Meyers
The petrochemical industry’s struggle to find enough welders, pipefitters and skilled laborers to build the billions in new projects slated for the Gulf Coast is a problem of its own making, the head of a construction education foundation said this week.
Craft laborers require years of training to become minimally qualified and up to a decade to acquire the skills that make them top performers, but the industry has failed to consistently invest in developing that workforce, said Don Whyte, president of NCEER, which develops curriculum and assessments for construction and maintenance workers.
“I’ve seen five or six downturns now and it seems like when we hit that downturn we think we can simply slow down or turn off that pipeline and then when the recovery hits, turn that pipeline back on,” he said. “What we’re seeing today in our current labor market is some of the results of trying to constantly turn the pipeline off and turn it back on.”
The industry must stop treating craft laborers as a commodity, said Whyte said in a webinar this week addressing the challenges associated with building multi-billion petrochemical projects on the Gulf Coast.
Related: Petrochemical construction boom fueling demand for Houston workers
After years of stagnation, U.S. petrochemical plants are revving up again and expanding as they scramble to take advantage of the vast supplies of cheap gas unleashed by the shale boom.
At the epicenter of the building spree is the Texas Gulf Coast, where major companies including Chevron Phillips Chemical, LyondellBasell and Exxon Mobil Chemical are spending billions on new ethylene crackers, propylene production units and other expansion projects.
In Freeport, Dow Chemical is investing billions to build a new ethylene cracker and new propane dehydrogenation unit, construction projects that are expected to require thousands of construction workers.
“I remember leaders in Dow saying, ‘We’re never going to be building another cracker on the Gulf Coast,’” Jeff Patterson, who oversees site engineering groups at various manufacturing sites for Dow Chemical, said in the webinar. “That whole dynamic has changed.”
Related: Report: Chemical revenues slip but expansions expected to continue
But because it has been years since petrochemical companies invested in the United States, the recent flurry of activity caught companies flatfooted, struggling to figure out how to manage the massive new projects and find enough workers to complete the construction.
“A lot of these owner companies have not done major projects in quite a while and they really have lost that capability,” said Manuel Junco, vice president of Houston operations for Jacobs Engineering, said in the webinar. “They struggle significantly to get projects off the ground and properly set up and doing even just the basic things you need to do for a project.”
Some companies, including Dow, have looked for project management expertise from workers outside the United States, bringing in international people who previously worked on mega projects overseas, Patterson said.
“If you come to Freeport and listen to some of the Dow leadership, you hear a lot of Dutch spoken,” he said.
But when it comes to hiring craft workers who will actually build the project, the competition is fierce in the United States. Companies are hiking wages and sweetening benefits packages to lure welders, pipefitters and other skilled laborers, which can lead to more expensive projects and high turnover as workers jump from project to project chasing a higher pay, Whyte said.
The same situation played out during the recoveries from Hurricanes Rita and Karina in 2005, when demand for skilled laborers exceeded supply and some projects saw 600 percent turnover, Whyte said.
“I actually think this future market is going to be worse than that one,” he said. “The one good news in that highly competitive market is when the wages go up, typically what we see is our recruiting greatly improves. So if there is a silver lining, that’s a silver lining on a competitive market.”
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Long-Term Development Key to Maintaining Petrochemical Labor Pool
Apr 6, 2015 | E&E - Energywire
To address a shortage of welders, pipefitters and skilled laborers, the petrochemical industry must stop treating those workers as a commodity, said Don Whyte, president of the workforce development group NCCER.
Craft laborers need years of training to meet minimum qualifications and a decade or more to become top performers, but the industry offers few opportunities for development, Whyte said in a webinar last week on the challenges of rebooting petrochemical projects on the Gulf Coast.
"I've seen five or six downturns now, and it seems like when we hit that downturn, we think we can simply slow down or turn off that pipeline, and then when the recovery hits, turn that pipeline back on," he said. "What we're seeing today in our current labor market is some of the results of trying to constantly turn the pipeline off and turn it back on."
In Freeport, Texas, for example, Dow Chemical Co. is building a multibillion-dollar ethylene cracker and propane dehydrogenation unit, which will require thousands of construction workers. But after years of industry stagnation, companies like Dow are struggling to find the laborers they need.
"I remember leaders in Dow saying, 'We're never going to be building another cracker on the Gulf Coast,'" Jeff Patterson, head of on-site engineering groups at various Dow manufacturing facilities, said during the webinar. "That whole dynamic has changed."
Dow has expanded the geographic reach of its recruitment efforts to bring in managers who have handled major overseas projects, Patterson said. But the search for domestic laborers who will actually carry out the work is cutthroat.
To attract workers, companies are offering higher pay and better benefits, which can lead to increased turnover as employees leave in search of a larger paycheck, Whyte said.
"The one good news in that highly competitive market is when the wages go up, typically what we see is our recruiting greatly improves," he said. "So if there is a silver lining, that's a silver lining on a competitive market" (Rhiannon Meyers, Fuel Fix, April 2). -- PK
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EPA Ozone Proposal Spells Doom for San Antonio's Compliance Streak
Apr 6, 2015 | E&E - Greenwire
By Amanda Peterka
San Antonio prides itself on being the only large U.S. city with a perfect record on federal Clean Air Act compliance.
The nation's seventh-largest city, with a population of 1.4 million people, has never been designated as in "nonattainment" of a pollution standard. It's never had to draw up and implement complex and expensive regional blueprints for cracking down on emissions.
But San Antonio's compliance streak will likely end if U.S. EPA ratchets down the national ozone standard.
"It's a real issue for us," said Brenda Williams, interim director of the Alamo Area Council of Governments' Natural Resources Department. "At this point, it looks like it'll be very difficult to meet a lower standard."
Ground-level ozone is a key component of smog brewed when nitrogen oxides react with volatile organic compounds in sunny stagnant air. Smog makes breathing difficult for everyone but poses a serious threat to the elderly and people with respiratory problems.
EPA is considering tightening the ozone standard from 75 parts per billion -- set during the George W. Bush administration in 2008 -- to between 65 and 70 ppb based on reviews of research on public health impacts of smoggy air (Greenwire, Nov. 26, 2014).
EPA's decision is expected by Oct. 1 and will start a two-year countdown for the agency to collect state recommendations and designate nonattainment areas based on monitoring data.
The Clean Air Act record of San Antonio, the second-most populous city in Texas, stands in sharp contrast to Houston and Dallas-Fort Worth, which are consistently ranked as having some of the nation's dirtiest air. San Antonio and its surrounding eight counties have hovered on the brink of ozone noncompliance but have always managed to avoid an official designation from EPA.
A key issue for San Antonio: How would a nonattainment label affect the local economy?
Brenda Williams, interim director of the Alamo Area Council of Governments' Natural Resources Department.Photo courtesy of the Alamo Area Council of Governments.
Under the Clean Air Act, a nonattainment designation triggers a host of actions aimed at clearing the air. States must write and enact pollution control plans to cap emissions and create offset programs for major sources.
San Antonio officials say they've heard stories from other areas about how the requirements have stymied development.
"We've never gone through that before and we hope we don't have to," Williams said, "but certainly that's a concern because it does potentially impact industries, for example, if they have to put more controls on their processes to reduce emissions. All that would cost."
A combination of factors has contributed to San Antonio's good fortune with air quality standards.
For one, San Antonio benefits from not having major industrial polluters. City officials have taken proactive measures to reduce air pollutants. And EPA has refused to go back and redesignate areas that have fallen out of compliance.
Clean Air Act rules are complicated. Consider that air designations for the ozone standard are based on the fourth-highest ozone measurement of an area averaged over a period of three years. In other words, an area could exceed the standard four times a year for three years before it's considered in violation.
In the early 2000s, EPA deferred a nonattainment designation for ozone for the San Antonio area when monitors recorded three-year levels above the standard of 84 parts per billion. Metropolitan officials negotiated a deal to reduce ozone precursors through voluntary means. EPA named the city in full compliance in 2007.
In 2008, EPA lowered the ozone standard to 75 ppb, and San Antonio again faced possible noncompliance. The area ducked the designation, but just barely. A few months after EPA finalized its designations, the city's ozone levels had crept above the limit.
Ozone levels at an air monitor at Camp Bullis, a military training site northwest of San Antonio, logged fourth-highest averages of 80 ppb in 2012, 81 ppb in 2013 and 78 ppb last year -- all above the current standard. A monitor in northwest San Antonio logged averages of 77 ppb in 2012 and 78 ppb in 2013, though it fell to within the standard last year, likely a result of more favorable weather.
EPA denied a petition by environmentalists to go back and redesignate areas, including San Antonio, that are no longer in compliance with the 2008 standard (Greenwire, Aug. 18, 2014).Booming population, shale play?
A booming population is likely a major factor driving the recent upward trends in ozone in San Antonio.
Between April 1, 2010, and July 1, 2011, the population of San Antonio grew by nearly 1 million people. That's the third-largest population increase in any American metro area.
More people mean more cars and trucks on the road spewing nitrogen dioxide into the atmosphere. Historically, cars and trucks have represented the largest source of NO2 in the region.
"San Antonio is transected by a number of major highways and its proximity to multiple land and ocean ports guarantees an abundance of heavy duty vehicle traffic," according to a document on ozone by the Alamo Area County of Governments.
Some ozone is also blowing in from beyond the metro area.
High ozone days in June are caused by pollution blowing in from the southeast, according to Steve Smeltzer, the Alamo Area Council of Governments' environmental manager. During that time, he told the council's Air Improvement Resources Executive Committee, about 25 percent of ozone precursors are generated locally.
In August and September, he said, wind often blows in ozone from cities, power plants and industrial facilities along the Interstate 35 corridor northeast of San Antonio.
What's less certain is the impact that the booming oil and gas industry in the nearby Eagle Ford Shale is having on San Antonio's air quality. Local officials are taking an emissions inventory and are doing photochemical modeling to quantify the shale play's effects.
Environmentalists see the Eagle Ford play as potentially a major contributor to ozone. Elena Craft, a Texas-based senior health scientist at the Environmental Defense Fund, said that San Antonio was in effect being "penalized for the growth of the natural gas industry" if it gets named in nonattainment.
"I think there is ample evidence to suggest that the emissions from that sector are contributing in some way to air quality issues in San Antonio," Craft said. "You are talking about emissions that are on the order of magnitude of equaling all of the emissions from all area sources in San Antonio. We're not talking about an insignificant amount of emissions."
The Alamo Area Council of Governments holds a “Fresh Air Friday” event to promote walking or biking downtown instead of driving for air quality reasons. Photo courtesy of the Alamo Area Council of Governments.
The South Texas Energy & Economic Roundtable (STEER), which represents oil and gas operations, says the industry has cooperated with the city and is "constantly working on innovation" to lower emissions of nitrogen oxides and volatile organic compounds.
"The oil and gas industry is one of many components" playing into ozone levels in the region, said Omar Garcia, STEER's president. He noted that the monitor closest to the Eagle Ford Shale shows lower readings than the monitors located in more populous areas.
"It's a new industry for everybody. It sprung up all of a sudden in 2009. They wanted a better understanding of what does this mean," Garcia said of efforts to measure emissions.
According to Smeltzer, models that consider the Eagle Ford play show that in 2018, two out of three regulatory monitors will log ozone concentrations exceeding 70 ppb. EPA in November also projected that Bexar County -- home to San Antonio -- will be among 358 counties found to be in violation of a 70 ppb standard.
In its comments to EPA on the ozone proposal, the Alamo Area Council of Governments -- which comprises elected city and county officials -- urged EPA to push back the designation deadline to 2018 to allow regions to take into account the reductions in air pollutants that will occur from low-sulfur gasoline regulations and other federal air rules. It also said EPA should allow more flexibility in assigning ozone values to areas and pay more attention to how long-range transport affects a local area's ozone.
In anticipation of a tighter standard, San Antonio is also participating in EPA's "Ozone Advance Program," which allows areas expecting nonattainment designations to voluntarily lower ozone levels.
EDF's Craft applauded local officials for taking proactive steps to lower ozone.
"I think they're sensitive to it in part because there have been facilities that have chosen to locate in San Antonio over Dallas and Houston," Craft said. "San Antonio has always prided itself on being able to offer a business-friendly environment while maintaining the healthy standards. Now that they're in jeopardy of losing that status, I think obviously that is of concern to the local elected officials."'Shared commitment'
Clean Air Act experts predict that EPA will likely miss its two-year deadline to name nonattainment areas, pointing to past delays. EPA made its final decision on nonattainment areas for the 1997 standard in 2003; the designations for the 2008 standard came in 2012.
"On the ground, these schedules are very often plagued by delays," said David Baron, a managing attorney at Earthjustice. "They are plagued by EPA delays and plagued by delays at the state level. EPA is typically lax in enforcing the deadlines."Clean Air purgatory
After U.S. EPA issues a new national ambient air quality standard, the agency has two years to designate areas that are in "attainment," "nonattainment" or "unclassifiable" based on data provided by states. EPA can extend the deadline by a year if it lacks enough information to make a determination.
States have three years to develop state implementation plans, or SIPs, that lay out how they'll lower pollution levels in nonattainment areas by a set date. If a state fails to write a plan or EPA disapproves of the plan, the agency has two years before it can start issuing sanctions. Sometimes, EPA will write a federal plan to clean up pollution.
Since 1990, EPA has put states into nonattainment categories depending on the severity of their air pollution. The attainment dates depend on the category:
• Marginal nonattainment areas have three years to meet the standard.
• Moderate areas have six years.
• Serious areas have nine years.
• Severe areas have 15 years.
• Extreme areas are given 20 years.
If an area misses the deadline, the Clean Air Act requires that it be "bumped up" to more severe levels of nonattainment, intensifying measures that must be taken to reduce pollution from permitted industries and other sources.
EPA has two main sanctions for states that fail to develop SIPs: halting the approval of federal highway funding from the Department of Transportation and requiring greater emission offsets. But the agency rarely uses its authority to follow through with sanctions. The threat of sanctions is usually enough to bring sides together.
A Congressional Research Service study, for example, found that EPA threatened to sanction areas 855 times between 1990 and 1999 but imposed sanctions in just 14 cases. Two involved highway funding: For a short period of time in 1995 and 1996, the agency imposed the sanction on Iron County, Mo., for an incomplete submission under the lead standard; EPA has also withheld funding from East Helena, Mont., beginning in 1996 for failure to submit SIP documents under the public welfare standard for sulfur dioxide.
The Department of Transportation lists no other active highway sanctions.
-- Amanda Peterka
For San Antonio, the impact of nonattainment -- whenever it comes -- would depend on how badly it is violating EPA's chosen standard and how quickly ozone levels drop to within the limit. If placed in "moderate" nonattainment of the new standard, the area would have six years to come into compliance before facing tougher sanctions. Areas with more serious air quality problems are given longer to come into compliance (see sidebar).
EPA predicts that ozone levels in San Antonio will drop to under 70 ppb by 2025. But between now and then, officials are worried about how a nonattainment designation would affect the local economy -- especially given that, in the past, the ability to show compliance with air standards has helped attract business.
In the early 2000s, for example, Toyota Motor Corp. was seeking a site in Texas for a new vehicle assembly facility. The company chose San Antonio at least in part because it was in attainment with air standards.
"The fact that San Antonio was not in nonattainment [status] was important," then-Toyota Motor Manufacturing North America Vice President Jim Wiseman was quoted as saying in a 2003 article in theSan Antonio Business Journal.
Industry and business groups say that even the threat of a nonattainment designation -- and the pollution controls that would follow it -- can halt economic development.
At a recent U.S. House hearing, National Black Chamber of Commerce President and CEO Harry Alford cited the case of Baton Rouge, La., which was previously considered in nonattainment with the 2008 standard but came into compliance in April 2014.
According to Alford, the Baton Rouge Chamber of Commerce last year worked with four chemical manufacturers that were interested in making investments in the area. While two of the companies executed purchase agreements on industrial locations in the Baton Rouge area, all four companies eventually pulled out, citing EPA's proposed new ozone standard and the possibility of the region falling back into nonattainment as having influenced their decisions.
"The four lost projects in Baton Rouge are only the tip of the iceberg," Alford said. "Without a doubt, there have been others, and there will be more."
The Texas Commission on Environmental Quality, which has long sparred with EPA over air regulations, has charged that the agency is using shaky science in its proposal and that there would be little or no benefit to tightening the standard.
EPA has estimated that the cost of installing pollution controls nationwide under its proposed will be up to $13.9 billion, though that figure excludes California. The agency, however, says that health benefits will outweigh costs by up to a 3-to-1 ratio.
Environmentalists and public health groups, which are calling on EPA to set a standard no higher than 65 ppb, say that worries about the economic impact of nonattainment designations are overblown and that industry groups are ignoring the health savings. They point to the fact that the nation's gross domestic product has overall grown as the air has gotten cleaner.
"Certainly many areas of the country suffered in the economic downturn of 2008, but I don't think any credible voice has linked that downturn to any environmental policy," said Paul Billings, senior vice president of advocacy and education at the American Lung Association. "We've seen tremendous growth in many areas of that country that have had nonattainment designations, like Atlanta and Washington, D.C. So I think that that's a claim that is made, but I don't think there's data that supports that claim because we continue to see growth and prosperity."
In its comments to EPA, the Alamo Area Council of Governments noted its efforts in the past to lower ozone levels and said it would cooperate with EPA to come into attainment with the standard.
But the council's Williams said the area would rather make improvements voluntarily.
"I think our main focus here is we want to have clean air," Williams said. "I think we want to do that as expeditiously as we can using voluntary measures that we adopt in order to avoid -- it's not really penalties so much as challenges that you have to address when you go into nonattainment."
Cleaning up the air would require "a shared commitment," she added.
"Although it is nice sometimes to point a finger," Williams said, "the reality is that we all drive vehicles, we all use energy and electricity, we're all contributing to the problem."
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Liberals, Law Profs Rain Fury on 'Sellout' Laurence Tribe
Apr 6, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Laurence Tribe's days as a liberal icon are over for green groups and many environmental law professors.
One of the country's best-known constitutional scholars, the Harvard law professor has made headlines for his two-fisted attack on President Obama's proposed greenhouse gas standards for power plants, a pillar of the administration's effort to combat climate change.
Tribe, working on behalf of one of the world's largest coal producers, called U.S. EPA's Clean Power Plan "fatally flawed" and a "breathtaking example" of regulatory "overreach." He hit the same notes in a Wall Street Journal op-ed. And he testified before Congress that Obama is "burning the Constitution" (Greenwire, March 17).
Tribe's advocacy has sparked a maelstrom of criticism from environmentalists and, notably, law professors who are lambasting Tribe's motives and questioning his legal theories. They have called him a "mercenary," "sellout," "pathetic" and "outlandish." More than one dubbed his arguments "complete bullshit."
"Tribe is, in my view, destroying his reputation as one of the most important and thoughtful constitutional scholars in the country," UCLA environmental law professor Ann Carlson wrote in a blog post.
Harvard Law professor Laurence Tribe, a former mentor to President Obama, has forcefully criticized EPA’s proposed greenhouse gas standards for power plants.Photo courtesy of Massey & Gail.
But to those who have followed his career -- from his work on gay rights to his representation of Al Gore at the Supreme Court in the 2000 presidential election -- Tribe's comments aren't entirely surprising. They say something has gotten lost in the narrative surrounding Tribe's remarks. It's simple, they say: Tribe is not an environmentalist.
Tribe has a history of plowing into high-profile environmental cases, typically on behalf of major industry clients like General Electric Co. He has fought other Clean Air Act regulations, and for about a decade tried to undermine a key provision of the Superfund cleanup law as unconstitutional. In nearly all of those instances, Tribe has been unsuccessful in court.
"He has a record of bringing constitutional challenges to major environmental programs," said Richard Revesz, director of New York University's Institute for Policy Integrity. "And, despite his fame and his great accomplishments, he has taken positions that the Supreme Court has rejected."
Nowadays, Tribe, 73, is just as well-known for his students as his own work. He mentored Supreme Court Justice Elena Kagan and had Chief Justice John Roberts as a student. He has called Obama, another Harvard law grad, the best student he ever had.
Tribe has argued before the Supreme Court on more than 30 occasions, typically seeking to advance progressive ideals. He has worked predominantly on minority and gay rights, and, in 1987, he was among the most vocal opponents of Ronald Reagan's nomination of Judge Robert Bork to the Supreme Court. Senate Democrats ultimately blocked the conservative judge from confirmation.
Early in his career, Tribe won over environmentalists with a 1974 Yale Law Journal article, "Ways Not to Think About Plastic Trees."
Tribe expressed a critical view of environmental policy at the time that he said would lead to the degradation of irreplaceable natural resources. In a radical view, he considered endowing natural objects with legal rights similar to those of humans. He called his theory "part of a structure for approaching a shared agreement about our responsibilities as persons -- responsibilities to one another and to the world."
He also took the "pro-environment" side in a 1983 Supreme Court case, Pacific Gas & Electric Co. v. State Energy Conservation and Development Commission, that challenged California's moratorium on nuclear power plants. Arguing on behalf of the commission, he won a unanimous ruling from the high court.
In an email exchange about the outrage his recent comments have generated, Tribe said "strong criticism comes with the territory if you don't let your lawyering follow the political winds or be influenced by how it might affect your image.
"I've always done what I thought was right and let the chips fall where they may," he added. "I've never let the fact that my opinions might prove unpopular with many, including with some people who are my allies in many a political and legal fight, deter me from speaking my mind.
"As long as I (and those who know me best) don't doubt my integrity or my motives, I'm okay with the situation."Three-headed argument
EPA is scheduled to finalize its first-ever greenhouse gas standards for power plants this summer. The Clean Power Plan will cut carbon pollution 30 percent from 2005 levels by 2030, largely by shifting the country from coal-based power to renewables like wind and solar.
Tribe's constitutional criticism of the plan is threefold.
Hired by Peabody Energy Corp., Tribe first argues on states' rights grounds, saying that the regulations would violate 10th Amendment federalism principles by imposing state emission rate reduction requirements. The rule, he wrote in public comments, "trenches on state agencies currently exercising authority over electricity regulation."
"All of the important decisions have already been made by EPA, depriving the State of its prerogative to set its own policies," Tribe wrote, adding in congressional testimony that it "usurps" state authority.
Second, he contends there is a property rights problem, claiming the proposal amounts to a "taking" of private property without just compensation, a violation of the Fifth Amendment. Takings challenges typically involve the condemnation of physical property, such as the creation of an easement across someone's land, or a regulation that unjustly limits how someone can use their property.
Here, however, Tribe argues that there is a regulatory taking because the regulation would set out rigorous requirements for specific parties -- coal and power companies -- and they would shepherd most of the cost of reducing greenhouse gases without the government compensating them for the system upgrades or coal that would not be burned in the future.
"Forcing a narrowly selected set of victims to make the proposed reductions in [carbon dioxide] emissions would have an imperceptible effect on worldwide greenhouse gas levels but at an inordinate cost to those of whom the most would be demanded," Tribe wrote. "The Proposed Rule thus raises serious constitutional questions under the Fifth Amendment."
Third, Tribe contends that the proposal would violate the so-called non-delegation doctrine. Under this argument, EPA is exercising authority beyond what Congress delegated to it in the Clean Air Act.
Other law professors revel in deconstructing Tribe's arguments, saying they would never stand up in court.
Specifically, they point out that the challenges to the proposal -- already filed in federal appellate court -- barely refer to these constitutional issues.
That litigation focuses largely on a statutory ambiguity regarding the section of the Clean Air Act that EPA is using to issue the rules.
At issue: Two versions of the section were passed into the pollution law -- one from the House and one from the Senate -- and challengers contend EPA is misreading the ambiguous directive. Law professors, even those who support the rule, acknowledge this issue has not previously been resolved in court, and EPA's plan could be vulnerable because of it (Greenwire, March 10). (Tribe also hits on this issue in his comments.)
"These are not plausible arguments," Revesz said of Tribe's constitutional claims. "Those arguments for the most part are not being taken seriously by the parties in the case."
With regard to the federalism claim, Harvard law professors Richard Lazarus and Jody Freeman countered that the principle at issue in the climate rule -- setting targets for states to meet, then leaving it to them to meet them -- is the basis of a host of existing environmental regulations, including most standards under the Clean Air Act.
In an article on the Harvard Laws website, they wrote that EPA has no legal authority to punish a state for not submitting its own plan. In that circumstance, EPA will implement its own plan, they wrote, but it must do so reasonably.
They also summarily dismissed the takings claim.
"[G]overnmental restrictions on such harmful emissions do not amount to takings of private property requiring the government to pay industry to stop polluting," they wrote. "There is no plausible taking here."
Tribe's non-delegation argument also appears to be on shaky ground, his critics say. For one, non-delegation challenges typically don't get far at the Supreme Court. Revesz noted that the high court has only overturned laws or regulations based on a non-delegation challenge in less than three instances, all-stemming from ambitious programs that were part of President Franklin D. Roosevelt's New Deal.
(The Supreme Court heard a non-delegation case this year involving whether Congress gave Amtrak too much authority in negotiating regulations for on-time performance and other standards that affect its business. But the court sidestepped the non-delegation issue in its ruling last month [Greenwire, March 9].)
Tribe has tried the non-delegation argument before. In 2000, he represented General Electric in challenging EPA's standards for ozone, a main component of smog. In a case that reached the Supreme Court, he contended that the standards violated the doctrine by giving EPA too much authority to set the important standards without considering implementation costs.
He didn't win a single vote. In a unanimous decision written by conservative Justice Antonin Scalia, the court deferred to EPA's interpretation and upheld the standards.Common themes
Tribe has challenged EPA in other areas, as well.
For several years, Tribe represented GE in seeking to undermine a key component of the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which created the Superfund cleanup program.
Tribe, in a series of lawsuits, contended that EPA's ability under the law to unilaterally force responsible parties to clean up their pollution violated the Constitution's due process protections -- meaning the responsible parties did not have the opportunity to challenge the requirements in court.
Those efforts were also unsuccessful, but Tribe's environmental work has adhered to a common theme, said Jonathan Adler, an environmental law professor at Case Western Reserve University School of Law.
"He has been interested in the concern that in our efforts to enhance environmental protection, we have sometimes given short shrift to important constitutional values about the way the government operates," he said.
Adler noted that similar concerns were on display in the 2012 Supreme Court case,Sackett v. EPA, which didn't involve Tribe. In that case, the Supreme Court ruled unanimously that EPA Clean Water Act compliance orders could be challenged in court.
Tribe's contentions about the greenhouse gas proposal, Adler said, are "certainly aggressive."
But, he added, "I don't think it's fair to suggest that his position here is just the product of getting a big check."
Others were less forgiving. They noted that Tribe sought to represent various industry groups in a 2011 Supreme Court case of whether state common law could be used to hold power companies liable for greenhouse gas emissions. The court held that the Clean Air Act pre-empts any such claims -- the desired outcome of the Obama administration, as well as Tribe's clients, including the Petroleum Marketers Association of America and Peabody.
Tribe, however, was forced to remove himself from the case because he had served in the Obama administration's Justice Department shortly before joining the litigation, violating the department's conflict-of-interest policy prohibiting private work on matters still before the department within a certain time period of leaving it (Greenwire, Feb. 11, 2011).
More recently, Tribe also filed an amicus brief on behalf of Peabody in this year's Supreme Court case challenging EPA's standards for mercury and other hazardous air toxics (Greenwire, March 25).
And the professor also signed on to represent opponents of Cape Wind, a large proposed wind farm off the coast of Massachusetts.
Some professors found these efforts off-putting.
"It's the pathetic spectacle of the aging scholar," said Robert Percival, a environmental law professor at the University of Maryland's Francis King Carey School of Law. "He's selling out to whomever the highest bidder is."'Sacrificial lamb'
Others noted that Tribe's environmental work underscores a common theme in legal academia: The liberal constitutional scholar who picks one issue on which to be conservative.
"This fits within the tradition of famous constitutional scholars choosing an issue that progressives care about and treating it as a sacrificial lamb," said Justin Pidot, a former DOJ environmental attorney and now a professor at the University of Denver Sturm College of Law.
In essence, Pidot added, Tribe is saying, "I'm true to my principles because I am willing to attack environmental issues."
Other scholars have taken similar steps. John Hart Ely, the late Stanford Law dean and former faculty member at Yale and Harvard, is among the most cited legal scholars in the country's history.
He is particularly cherished among liberals because of his open view of constitutional interpretation that stressed protecting the democratic process itself, such as ensuring minority voting rights and fighting racial discrimination.
And he firmly opposed "textualism" and "originalism," formalist ways of reading the Constitution based solely on its words and the intent of the framers when it was written.
Ely, however, staked out a conservative position in 1973 that criticized the Supreme Court's landmark decision that year in Roe v. Wade that established a woman's right to an abortion.
Ely's criticism of the Roe decision was based in his theories of constitutional interpretation. Pidot, however, had difficulty rationalizing how Tribe's criticism meshed with his legal scholarship.
"What's strange to me about Tribe," Pidot said, "is some of his arguments are just so outlandish when you think of the last century of constitutional law, that it is hard to see it being part of a comprehensive view of the Constitution."
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The Hill Must Do Better on Climate
Apr 6, 2015 | The Hill - Congress Blog
By Sylvie Stein
I recently wrote an op-ed entitled “To the Media: Don’t Help the Merchants of Doubt.” In it, I asked the media to stop publishing factually inaccurate information on climate change, such as those made in a March 20 piece by climate denier William O’Keefe.
How did O’Keefe respond? By taking a classic page out of the “merchants of doubt” playbook. Throughout his piece, he attempts to make his fringe views appear credible by invoking bunk science: he cites discredited scientists like Dr. Willie Soon — who recently described his climate denial as “deliverables” produced in exchange for money from fossil fuel corporations— and his own organization — which, as we previously mentioned, Newsweek describes as a “central cog in the [climate change] denial machine.” Moreover, O’Keefe frames himself as the David to our Goliath — even while he’s bankrolled by the most profitable industry in the world.
But frankly, we don’t expect much better from O’Keefe. He’ll continue to accept fossil fuel money, and to take advantage of the media’s penchant for conflict to amplify what he’s paid to produce: climate denial.
Our argument doesn’t pertain to deniers like O’Keefe, but to the media. We say to the editors of The Hill: We believe you can — and must — do better regarding the subject of climate.
According to O’Keefe, if The Hill fact-checks his contributions, it would amount to a suppression of free speech. Yet while free speech is constitutionally protected, the right to exercise it in The Hill or any other media outlet is not.
Kelly McBride — the vice president of Academic Programs at the Poynter Institute, an organization that promotes responsible journalism — also makes this distinction. “All news organizations have an obligation to fact-check opinions that they may be running in their pages,” says McBride. “That doesn’t mean you have to censor certain points of view — but it does mean that it’s irresponsible to allow advocates to build an argument on false information.”
Like most media outlets, The Hill does fact-check its content on other issues — and should do the same for climate. For example, the science linking smoking tobacco to lung cancer is just as certain as the science linking greenhouse gas emissions to climate change, according to the American Association for the Advancement of Science (AAAS). If a contributor — particularly one funded heavily by the tobacco industry and with a documented history of misleading the public — sought to publish claims disputing the link between smoking tobacco and cancer, would The Hill editors publish it? Certainly not.
There’s no doubt that it’s difficult to ensure factual accuracy on climate change — in large part because deniers like O’Keefe are so adept at confusing fact and fiction. The film “Merchants of Doubt” seeks to lift the veil on this very problem: industry-backed pundits have used the same masterful tactics to successfully distort the facts on issues ranging from chemicals to tobacco to carbon pollution.
But The Hill can look to several prominent media outlets that have already taken up this task. The Washington Postand The Guardianhave both launched initiatives to put climate front and center in the past year. In October 2013, The Los Angeles Times letters editor Paul Thornton announced the newspaper would no longer publish letters to the editor that deny man-made climate change. Why?In Thornton’s words:
Simply put, I do my best to keep errors of fact off the letters page; when one does run, a correction is published. Saying "there's no sign humans have caused climate change" is not stating an opinion, it's asserting a factual inaccuracy.
What’s at stake if The Hill continues to publish factual inaccuracies on climate? The Hill’s credibility as a reliable news source, for one.
But more importantly, The Hill will perpetuate the problem of misinformation — and will do so with grave results. After all, The Hill has the largest circulation of any paper on Capitol Hill, and that means it’s read by the same lawmakers who — time and time again — are failing to pass climate legislation that will protect us and our world.
Stein is a campaigner at Forecast the Facts, a grassroots human rights organization dedicated to ensuring that Americans hear the truth about climate change.
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EPA Sends Controversial Water Rule to White House
Apr 6, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) Monday sent to the White House its controversial regulation to redefine the extent its authority over water pollution control.
In the year since it was proposed, the regulation has been the subject of multiple congressional hearings, sharp criticisms and legislative proposals from Republicans, agriculture groups, developers and others who accuse the Obama administration of a “land grab” and charge that it is trying to exert control over puddles, ditches and dry creek beds.
The EPA and its allies contend that the regulation would not significantly expand the agency’s jurisdiction, and is necessary to provide certainty and clarification following a pair of unclear Supreme Court decisions.
The federal government’s jurisdiction is important, because it could require companies and individuals to get federal permits for any actions that could harm covered waterways.
But EPA head Gina McCarthy has acknowledged that the release of the proposed “waters of the United States” rule was flawed and pledged to be responsive to the concerns raised in thousands of public comments and hundreds of meetings
While the Obama administration is mostly keeping quiet about the final version of the rule, McCarthy outlined some points Monday in a blog post with Jo-Ellen Darcy, who oversees the Army Corps of Engineers, which is developing the rule with the EPA.
“In the final rule, people will see that we made changes based on those comments, consistent with the law and the science,” they wrote. “We’ve worked hard to reach a final version that works for everyone — while protecting clean water.”
Specifically, McCarthy and Darcy said the new rule will better define which bodies of water, tributaries, wetlands and other features are covered, while better ensuring that ditches, agricultural practices and municipal storm sewer systems are not covered.
“The public will see that the agencies listened carefully and made changes based on their input,” the said. “That’s how an open and collaborative process works — so we can ensure everyone’s voices are heard, in a way that follows the law and the latest science. Our mission is to uphold that commitment to the American people.”
Review by the White House Office of Management and Budget is the final step before the rule can be unveiled and made final in the coming months.
Later this week, McCarthy will travel to the Twin Cities in Minnesota and to Dallas for a pair of events aimed at promoting the EPA’s water pollution control efforts and the “waters of the United States” rule specifically, an EPA spokeswoman said.
She’ll tour the St. Paul Regional Water Services Treatment Plant with the mayors of St. Paul and Minneapolis.
In Dallas, McCarthy will celebrate Dallas’ win last year of the National Mayor's Challenge for Water Conservation by helping break ground on an educational facility centered around efficient use of water.
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Senate Republicans Seek To Advance House-Passed EPA Cyanotoxins Bill
Apr 6, 2015 | InsideEPA
By Amanda Palleschi
Senate Republicans are pushing to quickly approve a bipartisan bill that would require EPA to quickly develop a strategy for managing the risks of cyanotoxins in drinking water, hoping to gain enough Democratic support to approve the legislation through unanimous consent.
Senate Environment & Public Works Committee (EPW) Chief Counsel Susan Bodine urged members of the Association of Metropolitan Water Agencies (AMWA) at the group's annual spring meeting in Washington, D.C., March 24 to ask Senate Democrats to "hotline" the bill, or agree to approve the legislation, which passed the House in February, by unanimous consent.
"What that means is that every [Senate Republican] office has been emailed saying, 'any objections?'," Bodine told AMWA members. "It has not been hotlined on the Democratic side, so if you are doing your Hill visits, you may want to ask."
The House approved H.R. 212 in a 375-37 vote Feb. 24. It would require EPA to develop and submit to Congress within 90 days of enactment a strategic plan to "assessing and managing the risk associated with cyanotoxins in drinking water; to establish a list of cyanotoxins that are harmful to human health when present in drinking water -- including the known adverse effects of those cyanotoxins and the factors that caused them to proliferate, and to develop health advisories for those on the list as well as technical guidance and assistance for states in monitoring the cyanotoxins."
Though EPA has not yet taken a position on the bill, it plans to finalize this spring health advisories to assist drinking water utilities in protecting customers from the toxins that can be produced by nutrient-fueled harmful algal blooms.
Addressing cyanotoxins in drinking water has taken on a heightened urgency in both the administration and Congress after high levels of cyanotoxins in Lake Erie prompted Toledo, OH, officials last year to issue a drinking water advisory that left 500,000 residents without clean drinking water for three days. EPA drinking water chief Peter Grevatt has previously stressed the need to address the issue before algal bloom season begins in Lake Erie and elsewhere, and EPA Administrator Gina McCarthy and other officials have emphasized the issue extends far beyond the Lake Erie region.
Companion Bill
Ohio Sens. Sherrod Brown (D) and Rob Portman (R) had been working on a companion bill to H.R. 212, as well as legislation that would require EPA to establish a specific advisory for microcystin, a type of toxin produced by freshwater cyanobacteria.
But Bodine stressed that the Senate was planning to adopt the House bill as-is to more promptly pass the measure. "Our intent is not to try and pick up the Senate bill and move it separately and then try to do a conference bill. There's no need in this instance," she told AMWA members, adding that the Senate would need 60 votes to prevent a filibuster "so you hotline to make sure no one is going to object."
Although many House Democrats voted for the measure and are generally supportive of its provisions, many have expressed concerns during committee hearings on the bill that it did not go far enough to fully tackle cyanotoxin contamination in drinking water or to prevent the growth of future harmful algal blooms.
Many House Democrats attempted to include amendments to address these broader issues but were forced to withdraw them during full committee markup after Chairman Fred Upton (R-MI) said they were not germane. Upton and Environment and Economy Subcommittee Chairman John Shimkus (R-IL) urged the Democratic lawmakers to work with the Senate to incorporate funding and other considerations in other legislation.
Rep. Lois Capps (D-CA) said during a February subcommittee hearing that the House measure "does nothing to help local communities actually implement it. They know what needs to be done, but if you don't have the wherewithal you can't do it."
Capps did ultimately re-introduce her proposed amendment to H.R. 212 as a standalone bill March 4, which would mandate the creation of a new grant program to provide funds to local drinking water utilities to implement "resiliency and mitigation" strategies. Sens. Barbara Boxer (D-CA), Harry Reid (D-CA) and Ben Cardin (D-MD) introduced companion legislation the same week.
The House also failed to include an amendment from Rep. Paul Tonko (D-NY) that would have increased the Drinking Water State Revolving Loan Funds by $10 million each fiscal year from fiscal year 2016 to FY18 to help implement H.R. 212. The amendment failed by a voice vote during subcommittee markup, and Tonko withdrew the amendment during the full committee markup. Tonko argued that although the Obama administration's FY16 budget request includes a $279 million boost for drinking water funding over current levels, it would not be adequate to meet all drinking water needs.
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EPA Sends Final CWA Rule For OMB Review Ahead Of Potential April Release
Apr 6, 2015 | InsideEPA
By Bridget DiCosmo
EPA has sent its final Clean Water Act (CWA) jurisdiction rule for White House Office of Management & Budget (OMB) pre-publication ahead of what they agency says is a target April release date, the last major regulatory step before EPA can issue the rule that its top water official says is vital to provide certainty on the law's reach.
OMB's website says that it received the rule for review April 6 and that it is planned for release sometime this month. Similarly, EPA's “Rulemaking Gateway” of pending regulations says the rule is slated for issuance in April. Agency officials have also suggested a potentially later date of issuing the rule sometime during spring.
While the rule is undergoing White House review -- which typically takes 90 days but can take far more or far less time depending on the policy -- outside groups including industry organizations, environmentalists and others will likely seek to meet with EPA and OMB officials to pitch them on how they think the final rule should be crafted. Once OMB completes its review, the agency will then be able to formally publish it in the Federal Register.
“I still think spring is the best way to characterize” the time frame for a final rule, EPA's de facto water chief Ken Kopocis said during a March 31 interview with Inside EPA.
State officials said earlier this year that the White House was pushing to finish pre-publication review of EPA's long-awaited final rule for how states should craft water quality standards (WQS) before it began review of the jurisdiction final rule, fearing a lack of resources to process two highly controversial water rules at the same time. OMB received the WQS rule Jan. 8 and its website lists a projected issuance in May.
EPA's decision to send the final CWA jurisdiction rule for review late last week underscores the agency's oppositionto calls from some GOP lawmakers to re-propose the regulation to address a host of concerns raised over it.
Critics of the rule say that it would vastly expand the CWA's reach beyond what Congress intended when it crafted the law, and have said the agency did not allow for enough time to adequately assess the more than one million comments it received on the rule -- a potential violation of the Administrative Procedure Act.
Downplaying the APA concerns, Kopocis in the interview said that “yes, there were a lot of comments,” but the agency “devoted significant resources to reviewing the comments,” enlisting resources from the Army Corps of Engineers, with whom EPA jointly crafted the proposed version of the rule released last April, and staff from EPA's regional offices around the country, and had completed reviewing the comments.
Lawmakers opposed to the draft rule are floating the potential for legislation to either force EPA to scrap or overhaul the regulation. But Kopocis said the heightened scrutiny from Congress instead shows the urgent need for the agency to issue a final version of the rule to provide long-sought clarity on CWA jurisdiction.
Jurisdictional Tests
EPA and the Corps are issuing the rule following competing Supreme Court tests for determining when smaller waters and isolated wetlands are considered subject to the water law.
EPA in its statement of need for the regulation listed on the OMB website highlights three high court decisions:United States v. Riverside Bayview Homes, Inc., in 1985, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, in 2001 and Rapanos v. United States, a 2006 ruling.
In SWANNC, the high court found that non-adjacent, isolated waters fall outside of CWA jurisdiction when an ecological connection such as migratory birds is the sole basis for arguing jurisdiction, saying the language in the draft report could lead to a "pernicious misunderstanding of existing law.”
In Rapanos, Justice Anthony Kennedy said in a concurring opinion that wetlands, whether “alone or in combination with similarly situated lands in the region,” pose a significant nexus and are therefore jurisdictional when they “significantly affect the chemical, physical, and biological integrity” downstream, traditionally navigable waters.
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to traditional navigable waters and wetlands that have a "continuous surface connection" to such relatively permanent water bodies, are jurisdictional under the water law.
The CWA rule, which the agencies took comment on through Nov. 14, would establish a significant nexus finding to all tributaries as well as wetlands and waters located in floodplains and riparian areas, making them automatically jurisdictional under the CWA.
Non-floodplain waters and wetlands outside of riparian areas would have to be assessed on a case-by-case basis to determine whether they share a significant nexus to downstream waters.
EPA also took comment on a number of alternate approaches, outlined in the OMB website description of the rule, including how to define “neighboring” and how to determine which waters are excluded from jurisdiction. And agency officials have suggested the final rule could revise the proposal's provisions regarding ditches and its definition of “tributary,” which critics of the rulemaking said would capture more ditches than EPA indicated.
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