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(ACC Mentioned) Keeping the NPE 2015 Momentum Moving Forward
Apr 14, 2015 | Plastics News
By Gayle S. Putrich
By most accounts, NPE 2015 was a blockbuster. The show — and the plastics industry — are back after some tough economic years, and show organizer, the Society of the Plastics Industry Inc., has released numbers backing up that claim. But now that the parties are over, the booths are broken down and it’s back to business as usual for three... -
(ACC Mentioned) Draft TSCA Update Bill Called Good Start; Changes Planned Before May 14 Markup
Apr 15, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Some Toxic Substances Control Act requirements that have made it difficult for the Environmental Protection Agency to regulate harmful chemicals and led a federal court to overturn a 1989 ban of asbestos would be eliminated under a draft House bill that modernizes TSCA, agency, industry and environmental witnesses told a House subcommittee ... -
(ACC Mentioned) Film Focuses on Chemicals, Health Harms Amid Discussion of Three TSCA Reform Bills
Apr 15, 2015 | BNA Daily Environment Report
By Pat Rizzuto
“The Human Experiment,” a movie narrated by Sean Penn that says chronic exposures to chemicals are key contributors to rising rates of autism, cancer, infertility and health problems, is being released in the midst of congressional debates on three bills that seek to modernize the Toxic Substances Control Act. -
(ACC Mentioned) Simpler Draft TSCA Bill Encouraging But Needs Work to Avoid Regulatory 'Catch-22' -- EPA Official
Apr 15, 2015 | E&E Daily News
By Sam Pearson
A draft bill being circulated in the House Energy and Commerce Committee to reform the nation's primary chemicals law holds promise but needs work to clarify the sponsors' intent, U.S. EPA's top chemicals official told lawmakers yesterday in a hearing that was largely free of the kind of fireworks that Senate policy debates have seen in recent ... -
(ACC Mentioned) Industry, Environmental Groups Petition Court to Review EPA Waste Definition Rule
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
Environmental advocates, industry groups and one of the world's largest copper and gold producers have joined a large field of organizations and companies asking a federal appeals court to review the Environmental Protection Agency's final definition of solid waste rule ... -
(ACC Mentioned) ACC Honors Top Global Chemical Safety Initiatives
Apr 14, 2015 | Hydrocarbon Processing
The American Chemistry Council (ACC) today recognized chemical industry leaders for high accomplishments in chemical management, including environmental, health, safety and security (EHS&S) performance. The ACC gave the awards at the 2015 Responsible Care Conference & Expo in Miami, with winners qualifying based on exemplary... -
AFL-CIO Warns Senate TSCA Bill Needs Changes To Protect Workers
Apr 14, 2015 | E&E News PM
By Sam Pearson
A bipartisan Senate bill under consideration to address procedural barriers that have made it difficult for U.S. EPA to regulate toxic chemicals would improve current law in some ways, but needs changes to better protect workers, a major labor federation said this week. The AFL-CIO, the nation's largest group of labor unions... -
EPA: House Bill Could Delay Review Of Toxic Chemicals 'Indefinitely'
Apr 14, 2015 | The Hill - Regulation
By Lydia Wheeler
The Environmental Protection Agency (EPA) is concerned that a House proposal to reform the nation’s toxic chemical laws could “delay evaluations for some of the most dangerous chemicals indefinitely,” a top official said Tuesday. Jim Jones, the assistant administrator of EPA’s Office of Chemical Safety and Pollution Prevention, said the draft ... -
EPA Seeks Input On Science Backing Proposed TRI Listing For Carcinogen
Apr 14, 2015 | InsideEPA
By Dave Reynolds
EPA is seeking public input on whether sufficient scientific evidence exists to back its proposal to add the chemical 1-bromopropane to the agency's Toxics Release Inventory (TRI) for reporting of chemical releases, a move the agency is justifying based on research suggesting the substance is a carcinogen worthy of tracking on TRI. -
Maryland Lawmakers Approve Bill Banning Microbeads in Certain Products
Apr 15, 2015 | BNA Daily Environment Report
By Kathy Lundy Springuel
Personal care products that contain synthetic plastic microbeads could no longer be manufactured in Maryland starting in 2018, or sold starting in 2019, under legislation (H.B. 216) passed by the General Assembly. The measure, approved April 13, also would apply to over-the-counter drugs that contain synthetic plastic microbeads, banning... -
Former CSB Chairman 'May Have Committed Perjury,' Other Crimes -- IG
Apr 14, 2015 | E&E News PM
By Corbin Hiar
Rafael Moure-Eraso's final day on the Chemical Safety Board was Friday, but the ousted chairman could still face legal troubles stemming from his mismanagement of the EPA division that is in charge of investigating industrial disasters, officials said today. U.S. EPA Inspector General Arthur Elkins Jr. told members of the Senate... -
Utilities Urge EPA, OMB To Expand Use Of Vapor Guide At Petroleum Sites
Apr 14, 2015 | InsideEPA
By Dave Reynolds
Utility industry representatives are urging EPA and White House officials to expand the use of EPA's draft risk-based criteria for assessing vapor intrusion risk at sites contaminated by leaking petroleum underground storage tanks (USTs) to more broadly cover all sites contaminated only by petroleum regardless of the source. -
U.S. May Become Net Exporter Of Natural Gas, Petroleum, EIA Says
Apr 15, 2015 | BNA Daily Environment Report
By Rebecca Kern
For the first time since the 1950s, U.S. energy imports and exports will come into balance due to the growth in exports by the U.S. of crude oil and natural gas, and lower energy demand, the latest EIA Annual Energy Outlook found. Net energy imports and exports will come into balance by 2028, according to projections from the Energy... -
PEER Protests EPA Wastewater Disposal Permits For Wyo. Reservation
Apr 15, 2015 | E&E News PM
By Dylan Brown
U.S. EPA permits allowing oil and gas drillers to dispose of wastewater aboveground on or near a Wyoming Indian reservation are "illegal and should be rescinded," according to an environmental watchdog. Public Employees for Environmental Responsibility filed a petition with EPA's Environmental Appeals Board today, the last administrative... -
Canada Official Backs ‘Continental Approach' to Environment, Energy Issues
Apr 15, 2015 | BNA Daily Environment Report
By Greg Quinn
Canada is eager to expand cooperation with the U.S. on environmental standards for oil and natural gas and to work toward a global climate agreement, Natural Resources Minister Greg Rickford said. “A continental approach is the surest way to improve our environmental performance while enhancing our energy security and economic prosperity,”... -
Tribes Say No to Keystone
Apr 14, 2015 | The Hill - E2 Wire
By Timothy Cama and Megan R. Wilson
Native Americans are pressuring the Obama administration to reject the Keystone XL pipeline, warning the project could infringe on their water rights, harm sacred land and violate America’s treaty obligations. Tribes sent more than 100 pages of letters to the Interior Department earlier this year raising concerns about the project, which would... -
Obama Legacy Gets Second Legal Test Over ‘Goof’ in Climate Rule
Apr 15, 2015 | Bloomberg Business
By Mark Drajem & Andrew Zajac
A congressional drafting error and clunky phrase is putting a second of President Barack Obama’s signature endeavors in jeopardy. This time it’s climate change. Challengers to Obama’s policies are exploiting a law written 25 years ago in a lawsuit to derail Environmental Protection Agency rules designed to curb carbon emissions. -
Obama’s Climate Change Plan Faces Crucial Test
Apr 15, 2015 | The Hill - E2 Wire
By Timothy Cama
Regulations at the center of President Obama’s climate change initiative face a crucial test this week when opponents will attempt to block them before they’re even made final. A federal appeals court in Washington, D.C., will hear oral arguments Thursday in a high-stakes legal challenge to the Environmental Protection Agency’s (EPA)... -
House Lawmakers Squabble With EPA Over Power Plant Bill, Impacts of Carbon Rules
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
House Republicans acknowledge that draft legislation allowing states to opt out of the Environmental Protection Agency's carbon pollution rules for power plants was a forceful response but said such an approach is necessary given the agency's “extreme, radical” approach to redefining the electricity markets in every state. -
Senators Ask States to Reject McConnell Call To ‘Just Say No’ Regarding Power Plant Rule
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
Five senators have asked the nation's governors to reject calls from Senate Majority Leader Mitch McConnell (R-Ky.) to “just say no” and not comply with the Environmental Protection Agency's carbon pollution rules for existing power plants. “Before you take advice about climate change from Senator McConnell please consider first what so many ... -
Dems Hit Back At Mcconnell, Ask States To Follow Climate Rule
Apr 14, 2015 | The Hill - E2 Wire
By Devin Henry
A group of Democrats is dragging Senate Majority Leader Mitch McConnell’s (R-Ky.) home turf into the fight over the Obama administration’s Clean Power Plan. Five Senate Democrats, led by Sen. Sheldon Whitehouse (R.I.), penned a letter to the nation’s governors Tuesday saying that McConnell’s views on climate change are out of line with his ... -
Senate Democrats Say McConnell ‘Staying Behind’ On Climate Rules
Apr 14, 2015 | National Journal
By Jason Plautz
Senate Democrats are fighting back against Majority Leader Mitch McConnell's ploy to get governors to opt out of the EPA's climate rules for power plants, by telling them how his home state of Kentucky is acting to address climate change. In a letter to all 50 governors, the Democrats—including Massachusetts' Elizabeth Warren—say that... -
Quebec Energy Minister Arcand Discusses Province's Role in EPA Power Plan
Apr 15, 2015 | E&E Daily News
Should international renewables be considered as part of Clean Power Plan compliance? Is the Clean Power Plan an avenue for growth for existing international collaborations on emissions reduction and trading? During today's OnPoint, Pierre Arcand, Quebec's minister for energy and natural resources, who is in Washington, D.C., for his first official visit... -
Coal Use Could Increase Without Clean Power Plan -- EIA
Apr 15, 2015 | E&E News PM
By Manuel Quiñones
Overall U.S. coal use could increase slightly by 2040, despite the ongoing market downturn, according to the U.S. Energy Information Administration's latest energy outlook. EIA forecasts roughly 40 gigawatts of coal-fired power plant capacity will retire between 2013 and 2040. And coal's share of power production will drop from 39 percent... -
Panel Gets Tweaked Legislation to Mark Up
Apr 15, 2015 | E&E Daily News
By Manuel Quiñones
The House Energy and Commerce Committee is scheduled to vote on legislation this morning to tweak U.S. EPA's new regulations affecting coal combustion waste. The bill, H.R. 1734, cleared the Environment and the Economy Subcommittee last week. But backers say they made a few changes since then meant to address some EPA... -
ESPS Arguments Expected To Focus On Jurisdiction But Merits May Get Play
Apr 14, 2015 | InsideEPA
By Dawn Reeves
The U.S. Court of Appeals for the District of Columbia Circuit is poised to hear arguments April 16 in a set of cases challenging EPA's plan to limit greenhouse gases (GHGs) from exiting power plants, litigation that will almost certainly be decided on whether the court has jurisdiction to review a proposed rule though the judges are expected ... -
State Regulators Urge EPA to Do More On Emissions From Upwind Polluter States
Apr 15, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
The Environmental Protection Agency needs to do more to curb ozone emissions from heavy polluting states like Pennsylvania that foul the air of neighboring states, regulators from Maryland, New Jersey and Connecticut said April 14 at a public hearing in Trenton, N.J. -
Denham: Nominate Permanent FRA, PHMSA Heads
Apr 15, 2015 | BNA Daily Environment Report
The Obama administration should nominate permanent heads of two Transportation Department offices, Rep. Jeff Denham (R-Calif.) said during a subcommittee hearing April 14. Both the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration are being led by acting administrators, who are allowed... -
Lifting Crude Export Ban Would Exacerbate Climate Change, Double Trains Carrying Oil
Apr 15, 2015 | BNA Daily Environment Report
By Ari Natter
Lifting the 40-year-old ban on the export of crude oil would exacerbate climate change and could double the number of trains transporting crude by rail, a House panel was told April 14. Changing the law, which is a goal of oil producers such as ConocoPhillips, would raise the price drillers receive for their product, resulting in a “hazardous... -
Impact of Cutting Crude-by-Rail Volatility, Fate of Resulting Product Remain Unclear
Apr 15, 2015 | BNA Daily Environment Report
By Rachel Leven
As Congress and others move to address the volatility of crude oil in crude-by-rail safety efforts, the safety impact of these steps has yet to be determined, and other issues have emerged, officials told Bloomberg BNA in a series of interviews. Industry and environmental groups are at opposite ends of the spectrum when... -
Hearing Amounts to Venting Session Over Slow Pace of Rulemakings
Apr 15, 2015 | E&E Daily News
By Sean Reilly
Top Transportation Department regulators faced a bipartisan venting of congressional frustration yesterday over the slow pace of rulemakings both to strengthen pipeline safety and standards for railroad tank cars used to ship crude oil. "Four years," Rep. Jeff Denham (R-Calif.), chairman of the House Transportation and Infrastructure Subcommittee...
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(ACC Mentioned) Keeping the NPE 2015 Momentum Moving Forward
Apr 14, 2015 | Plastics News
By Gayle S. Putrich
By most accounts, NPE 2015 was a blockbuster.
The show — and the plastics industry — are back after some tough economic years, and show organizer, the Society of the Plastics Industry Inc., has released numbers backing up that claim. But now that the parties are over, the booths are broken down and it’s back to business as usual for three years, how can plastics keep that NPE 2015 enthusiasm going? The industry’s top associations hope to do so with a little more togetherness.
Final registration figures for NPE 2015 hit 65,810, up 19 percent from three years ago, according to Washington-based SPI. Some 26 percent of the registrants came from outside the United States, representing 37 countries, with nearly 5,000 from Latin America, SPI said.
SPI counts registrants rather than actual attendees at Orlando, Fla.’s, Orange County Convention Center March 23-17, making comparisons to previous shows difficult. The 2000 NPE show in Chicago holds the record for the most registrations — about 90,000. While observers don’t believe that was an accurate measure of actual attendance, the trade show’s 2000 iteration is remembered as one of the most successful NPEs on record. Through the 2015 show’s run, NPE veterans proclaimed it unofficially on par with the 2000 show.
NPE 2015 did officially top the 2000 show with records for exhibit space and number of exhibitors. According to SPI, the OCCC had 2,029 exhibitors with more than 1.128 million net square feet of exhibit space — exceeding the previous records of 2,009 exhibitors and 1.041 million net square feet set in 2000 at Chicago’s McCormick Place.
NPE2018 will be held May 7-11, 2018, at the OCCC in Orlando.
In the meantime, industry leaders are working behind the scenes to keep the NPE momentum going, pulling the plastics industry together to keep growing and improving plastics’ public image.
It’s a challenge because the plastics industry is not monolithic — as those in the business already know, points out Steve Russell, the American Chemistry Council’s vice president of plastics.
“NPE is an amazing event once every three years, and it does give a chance for us to come together. But the purpose of NPE is not to strategize about the future. The purpose of NPE is the business of the plastics industry and to make the wheels work,” Russell said. “What’s happening at the same time and every day in Washington and in the association headquarters is that we are, on a daily basis, working to advance our members interests in advocacy.”
After years of working separately and sometimes butting heads, association leaders have found common ground in recent years, working together in “associations of associations” such as the North American Plastics Alliance (NAPA), the North American Plastics Recycling Association (NAPRA) and the growing Plastics Association Leaders (PAL) group.
“There was no doubt countless dollars were being wasted in what I call cannibalizing each other’s projects,” said Jay Gardiner, president of Gardiner Plastics Inc., president of the Plastics Academy and one of the driving forces behind PAL. “If Association One is going to look at an issue and spend money on it and Association Two is going to look at [the same issue] and spend money on it, there is a synergy in the two associations working together.”
PAL has grown to about 20 organizations from across the plastics business, Gardiner said, “from large ones to small ones,” fostering such synergy. In addition to sharing ideas and pooling resources on advocacy, workforce development and sustainability, at NPE, Gardiner said he worked up a “matrix of issues” for PAL, gathering a list of issues that reach across different sectors of the plastics industry — from bag bans to green building standards to programs for young engineers — and cross-referencing completed studies, ad campaigns and any work that’s already been done by any plastics group.
“Our industry may be the third largest component of the manufacturing sector on the GDP, however to find our industry, you have to pull together a lot of points,” Gardiner said. “But if you know who has been working on what … you become part of the much bigger picture. It will unite everybody so that you can get the best bang for the buck.”
SPI President and CEO Bill Carteaux said getting that bang for the association buck is a big consideration for all the plastics associations, particularly when a message is meant for those outside the industry.
“Associations, that’s typical, we do all this work but we don’t have the budget to tell people about it. And that’s what we’re trying to overcome,” Carteaux said in an interview in Orlando. “[Plastics is] very, very diverse, from still-family-owned businesses to hundred billion dollar corporations. And we touch every part of human life. And I think it’s hard for people to rally around that. But we need to. We are moving the needle; we could move it faster with the general public.”
Sharing ideas, making deals and celebrating the industry as a whole every three years at NPE is an important part of that, Carteaux said, and so is carrying a more monolithic shared vision for the industry beyond the triennial trade show.
“The recognition that has happened recently is that each of us, no matter where we are in the plastics industry, whether it’s an additive supplier or a machine maker or a processor or a resin supplier, we are all impacted when the public is presented with misinformation about plastic because that can lead to loss of confidence, materials specifiers specifying other materials, consumers rejecting or just deciding not to use a particular plastic,” Russell said.
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(ACC Mentioned) Draft TSCA Update Bill Called Good Start; Changes Planned Before May 14 Markup
Apr 15, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Some Toxic Substances Control Act requirements that have made it difficult for the Environmental Protection Agency to regulate harmful chemicals and led a federal court to overturn a 1989 ban of asbestos would be eliminated under a draft House bill that modernizes TSCA, agency, industry and environmental witnesses told a House subcommittee April 14.
“The discussion draft clearly removes TSCA's requirement that the EPA demonstrate it is using the least burdensome requirements needed to provide adequate protection,” Jim Jones, assistant administrator for chemical safety and pollution prevention, told the House Energy and Commerce Subcommittee on Environment and the Economy. TSCA's requirement that the agency select the least burdensome regulation was a key basis for the ruling by the U.S. Court of Appeals for the Fifth Circuit that overturned the agency's 1989 ban of asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
“The bill provides a good starting point,” said Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce committee. But, he added, “We still have a lot of work to do.”
Jones and Pallone spoke during an April 14 hearing on the draft TSCA Modernization Act, which Rep. John Shimkus (R-Ill.), chairman of the subcommittee, released April 7 (68 DEN A-4, 4/9/15).
Shimkus said the draft legislation will be revised, introduced and scheduled for a May 14 markup.
Driving Risk Assessments
The draft bill would provide the EPA more effective authority than it has under current law to compel chemical manufacturers to generate new toxicity or exposure data, Jones said.
The draft bill, however, would not direct fees it authorizes to fund the agency's chemical-management work; it includes an analytic “Catch-22” provision that would make it difficult for the EPA to assess the risks of any chemical with the potential to cause health or environmental harm; and the bill would put chemical manufacturers in charge of deciding which chemicals the EPA would evaluate for safety, Jones said.
The combination of those three provisions “could result in evaluations for the chemicals with the most potential for risk being put off indefinitely, while EPA works on the evaluations requested by industry,” Jones said.
In contrast to two bills introduced in the Senate to comprehensively overhaul TSCA, S. 697 and S. 725, the House draft bill would not require the EPA to evaluate the safety of all chemicals in commerce.
Instead, the bill would lay out two situations under which it would require the EPA to conduct a risk evaluation of a chemical in commerce.
First, if the EPA could show that it has a reasonable basis to conclude a chemical has the potential to pose an unreasonable risk to human health or the environment, then the agency would assess the chemical.
Second, the EPA would be required to conduct risk assessments if the manufacturer of a chemical requested the agency to do so and paid for the evaluation.
Requiring the agency to make an affirmative finding that a chemical has the potential to cause an unreasonable risk before it could start to evaluate the compound's risks, could create an analytical Catch-22, Jones said.
“This would likely lead to EPA focusing the majority of its limited risk evaluation resources on completing evaluations for chemical substances requested by industry,” he said.
Open Door to Litigation
Under the draft TSCA Modernization Act, the EPA would consider health and environmental hazards and exposures solely—not regulatory costs—as it evaluates the safety of a chemical.
The draft bill is not clear, however, on the criteria the agency must use as it selects possible ways to manage risks it identified, Jones said.
“It's important to have a clear understanding of what the risk management standard is,” he said, adding that ambiguity would open the door for litigation.
Other concerns Jones raised during his testimony included deadlines he called unrealistic.
For example, he pointed to a provision in the draft bill that would require the EPA to complete a risk assessment requested by a chemical manufacturer within six months.
Jones also cited a provision of the draft that would require the EPA to publish a final rule on managing unreasonable chemical risks within six months of identifying them.
Shimkus, Pallone to Revise Draft
Shimkus, Pallone and other committee members said they will work with the EPA to address some of the concerns Jones raised.
The intent, Shimkus said, is to enable the EPA to examine the safety of some chemicals already on the market.
“We don't t want to create an unmanageable bar,” Shimkus said.
He also said he was committed to ensuring that fees that the legislation generated would fund the EPA's chemicals work and not go into the federal government's treasury, as they would under the draft bill.
Andy Igrejas, director of Safer Chemicals, Healthy Families, told Bloomberg BNA after the hearing that such assurances are why the coalition of advocacy groups he represents are supporting aspects of the draft bill. Safer Chemicals represents about 450 environmental health organizations, unions and some companies that seek market recognition for making products with what they say are safer chemicals.
“We do not support the draft in its current form, but with revisions we could,” Igrejas testified.
The cautious support is a notable departure from strong objections Safer Chemicals has raised about the Frank R. Lautenberg Chemical Safety for the 21st Century Act that Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10 (47 DEN A-19, 3/11/15).
Igrejas's testimony pointed out many of the same concerns about the House draft that EPA's Jones had raised.
Trade Associations Praise Draft
Before, during and after the hearing, trade associations representing several different manufacturing sectors praised the House draft.
Michael Walls, vice president of regulatory and technical affairs at the American Chemistry Council, detailed 10 reasons the draft would improve oversight of chemicals, including:
• a mandate that the EPA evaluate risks based solely on the basis of health and environmental considerations;
• a requirement that the agency fully consider potentially exposed subpopulations that could face greater risk than the general population, as it evaluates risks and determines, if needed, risk management measures;
• work toward balancing the interests of the state and federal governments by establishing a robust national chemical regulatory program and maintaining the ability of state governments to act when EPA has not.
In a letter to the subcommittee, the American Cleaning Institute, which represents chemical formulators, urged prompt action on the draft.
“This draft legislation, along with the bipartisan legislation in the U.S. Senate, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), are important milestones in the effort to strengthen and modernize our nation's premier chemical management law,” Ernest Rosenberg, president of the cleaning institute, wrote in a letter to Shimkus and Rep. Paul Tonko (D-N.Y.), ranking member of the Environment and the Economy Subcommittee.
The Alliance of Automobile Manufacturers; Consumer Specialty Products Association; International Fragrance Association, North America; and the Society of Chemical Manufacturers & Affiliates either testified in support of the approach the House draft has taken or issued statements supporting it.
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(ACC Mentioned) Film Focuses on Chemicals, Health Harms Amid Discussion of Three TSCA Reform Bills
Apr 15, 2015 | BNA Daily Environment Report
By Pat Rizzuto
“The Human Experiment,” a movie narrated by Sean Penn that says chronic exposures to chemicals are key contributors to rising rates of autism, cancer, infertility and health problems, is being released in the midst of congressional debates on three bills that seek to modernize the Toxic Substances Control Act.
“The power of this film to actually influence decisions is there,” Tony Iallonardo, communications director for Safer Chemicals, Healthy Families, told Bloomberg BNA April 10. “We are going to do everything we can to turn people out. This film has an important message.”
Safer Chemicals, which is advocating for TSCA reform, represents a coalition of more than 450 environmental, health, labor and other organizations with a combined membership of about 15 million people. Safer Chemicals and its members helped the filmmakers with information used in the movie. The coalition is listed on the movie's website as one of its partners.
Scott Jensen, a spokesman for the American Chemistry Council, had not seen the film. Based on the film's trailer and other information that is available, however, Jensen said, “We really don't think this film will have any impact on driving TSCA reform.”
Three Bills Being Considered
Two bills have been introduced in the Senate that would overhaul TSCA for the first time since it became law in 1976. Those bills are the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), which Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) introduced March 10, and the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act (S. 725), which Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.) introduced March 12 (60 DEN B-1, 3/30/15).
Draft legislation that would update sections of TSCA with the goal of eliminating provisions that have thwarted the Environmental Protection Agency's ability to oversee the safety of chemicals in commerce was the subject of an April 14 hearing before the House Energy and Commerce Subcommittee on Environment and the Economy (68 DEN A-4, 4/9/15).
The subcommittee will revise the draft legislation, introduce it and mark it up May 14, subcommittee Chairman John Shimkus (R-Ill.) said during the hearing (see related story).
Will Have Official Release Earth Day
The Human Experiment appeared at film festivals in 2014 but will have its official nationwide release April 17 for Earth Day, Adam Segal, a spokesman for The 2050 Group, which is promoting the movie, told Bloomberg BNA.
The movie will be released in a few major theaters and be available the same day through cable television, the Internet and smartphones as a video-on-demand, he said.
The film focuses on individuals who say their own health or that of their families has been harmed by chemicals. The individuals' short stories are interspersed with comments from:
• regulators, including Jim Jones, assistant administrator for chemical safety and pollution prevention at the Environmental Protection Agency; Geert Dancet, executive director of the European Chemicals Agency;
• Democratic legislators, specifically the late Sen. Frank Lautenberg, who worked for years to modernize TSCA, and California state Sen. Mark Leno, who spent years working toward legislation that eventually led to a law to require manufacturers of new upholstered furniture sold in California to label their products regarding the use or absence of flame retardant chemicals in their products (191 DEN A-13, 10/2/14); and
• chemists, oncologists, reproductive health researchers and other experts and advocates.
Asbestos' ‘Chilling Effect.’
In the film interview, Jones makes points he has made in many other settings. Indeed, with slightly different words, he made the same points during the April 14 subcommittee hearing.
“There is not a requirement that existing chemicals demonstrate safety,” Jones said in the movie.
“The procedural hurdles—once we judge there to be a risk—are very high, so taking action once you know that there is a risk is incredibly difficult,” he said.
“The one time we tried it we actually lost in court,” Jones said. He referred to the agency's 1989 ban on asbestos, which the U.S. Court of Appeals for the Fifth Circuit overturned (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
Court Ban Had ‘Chilling Effect.'
“We did 10 years of analysis and we banned asbestos. We were sued on that, taken to court, and the court overturned the ban, which had a pretty chilling effect on the agency's subsequent efforts,” Jones said.
“People in the United States expect us to be able to say with authority that the products that they are buying are safe, and we are routinely in the position of not being able to provide those assurances, and it's just an awkward position to be in,” he said.
Iallonardo told BNA that hearing a senior EPA official discussing the legal hurdles TSCA imposes on the agency before it can restrict or ban chemicals and saying that existing chemicals don't have to be proven safe will surprise many people.
Iallonardo said he hopes the movie will spur political action.
Spurring Political Activity Depends on Factors
Andrew Maynard, director of the University of Michigan Risk Science Center, had not seen “The Human Experiment” but spoke with Bloomberg BNA about risk communication and advocacy messages generally.
The film is likely to “reenergize the base,” he said, referring to individuals who already are convinced that chemicals and chemical policy are causing harm.
Whether the film will be able to reach out to people who aren't already part of that base will depend on whether it meets several criteria, Maynard said.
The movie's message must resonate with its audience, Maynard said. “It must have emotional impact.”
The message must have validity, he said. That means after time has passed and people think about the issue the film presents, its perspective must ring true, he said.
People Will Seek Validation
“People will go to other sources they trust and see if those perspectives validate what they've seen,” Maynard said.
If, upon reflection, the message seems to have been spun, or rings untrue, it will lose credibility very fast, he said.
To spur political or social action, the movie must deliver a clear message about what action is needed and why it's needed, Maynard said.
“In this case, they would have to leave the movie theater thinking I must do something,” he said, adding that “something” must be clear.
Regulations are complicated, Maynard said. If the film inspires people to get involved politically, within the first 10 pages of the TSCA-reform bills, those same people may be asleep or utterly confused, he said.
In interviews conducted before his death in 2013, Lautenberg calls for TSCA reform.
Yet Safer Chemicals, however, opposes S. 697, which is named after the late senator.
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Apr 15, 2015 | E&E Daily News
By Sam Pearson
A draft bill being circulated in the House Energy and Commerce Committee to reform the nation's primary chemicals law holds promise but needs work to clarify the sponsors' intent, U.S. EPA's top chemicals official told lawmakers yesterday in a hearing that was largely free of the kind of fireworks that Senate policy debates have seen in recent weeks.
The draft bill by Rep. John Shimkus (R-Ill.), called the "TSCA Modernization Act," aims to take a small-bore approach to fixing the parts of the Toxic Substances Control Act of 1976 that lawmakers consider the most unacceptable, while avoiding controversies that have tripped up Senate negotiators. The draft bill also, in an encouraging sign for some chemical safety advocates, allows states to enforce rules identical to federal regulations, in a practice known as co-enforcement, and lets new and existing state chemical regulations remain in place until EPA has taken its own regulatory action on a chemical, not just when the agency is reviewing whether it should.
Shimkus' narrower approach means the House bill is simpler than the more far-reaching bipartisan Senate proposal, S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" (E&E Daily, April 13). And unlike with past proposals, said Shimkus and Rep. Paul Tonko (D-N.Y.), the subcommittee's ranking member, lawmakers and staff from both parties had been working together to find areas of agreement. Shimkus said he planned to hold a markup on the bill on May 14 and planned to make further changes to the proposed legislation before then.
The change in strategy marked "a significant milestone in the TSCA reform debate," Michael Walls, the American Chemistry Council's vice president of regulatory and technical affairs, told the subcommittee. "For the first time, there is now a bipartisan TSCA reform measure before each house of Congress. And while the debate over TSCA reform certainly doesn't end with this hearing, there's a very real opportunity to achieve TSCA reform this year."
The trade group doesn't oppose co-enforcement, but "the degree to which states may depart from the federal approach in enforcing those regulations, if at all, should be clarified," Walls said.
Though the bill largely complied with EPA's principles on TSCA reform that were laid out in a 2009 policy document, Jim Jones, assistant administrator in EPA's Office of Chemical Safety and Pollution Prevention, said that lawmakers needed to clarify confusing portions of the bill. For example, he said, the bill does not specify how EPA may prioritize chemicals for review, which has been a feature of previous proposals.
Jones noted that the bill has two methods by which EPA may evaluate the risk of a chemical -- by determining that "the combination of hazard from and exposure to a particular chemical substance has the potential to create an unreasonable risk of injury to health or the environment" or by receiving a request from a chemical manufacturer that a risk evaluation be conducted for a substance.
Because the law does not give EPA discretion to refuse such a request and does not set a cap on the number of industry requests, "in practice, this would likely lead to EPA focusing the majority of its limited risk evaluation resources on completing evaluations for chemical substances requested by industry, which, once requested, start the clock ticking on a number of deadlines," Jones said.
That has prompted concerns among some chemical safety advocates that by ceding too much control to the chemical industry over what chemicals are reviewed, the industry may gain leeway to manipulate the system by burdening EPA with reviews of chemicals that are not likely to cause harm or which distract the agency from other priorities.
A requirement that EPA complete an industry-requested risk assessment within six months is also "unrealistically optimistic," Jones said.
In addition, by requiring that EPA determine that a substance poses an unreasonable risk before beginning the evaluation, it could create a "Catch-22" for the agency, Jones said, because evaluating the chemical may be necessary to learn whether EPA should be concerned about it. However, once the agency began an evaluation, it would be able to issue orders for companies' testing data, instead of being required to conduct a rulemaking, a more time-consuming step.
Shimkus' draft bill also tries to skirt the controversies that have plagued Senate TSCA negotiators by leaving it up to EPA to decide how many chemicals it should review each year.
Jones said that while EPA shouldn't be forced to meet unrealistic targets, setting clear expectations for the agency in legislation can be helpful.
Still, EPA's ability to meet the targets will be dependent on funding, Jones said. With the agency on track to complete between three to eight reviews of existing chemicals this year, Jones said, EPA would require "at least twice the existing chemical resources we have right now" if Congress expects the agency to complete 20 assessments per year.
Legislative language regarding how EPA may consider costs when conducting a risk evaluation is also unclear, Jones said.
"It's not clear if this discussion draft is maintaining the existing cost-benefit balancing, if it's attempting to exclude costs completely from the risk management, or if it wants costs considered but in some general way, without being explicit," Jones said.
Those ambiguities mean that most public health and environmental groups will not support the draft bill in its current form, Andy Igrejas, director of Safer Chemicals, Healthy Families, testified.
However, the bill could be a "genuine public health achievement" if lawmakers can fix the outstanding issues, Igrejas said.
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(ACC Mentioned) Industry, Environmental Groups Petition Court to Review EPA Waste Definition Rule
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
Environmental advocates, industry groups and one of the world's largest copper and gold producers have joined a large field of organizations and companies asking a federal appeals court to review the Environmental Protection Agency's final definition of solid waste rule (Freeport-McMoran Inc. v. EPA , D.C. Cir., No. 15-1088, 4/13/15; Nat'l Ass'n of Mfrs. v. EPA, D.C. Cir., No. 15-1089, 4/13/15; Calif. Cmtys. Against Toxics v. EPA, D.C. Cir., No. 15-1094, 4/13/15).
In the petitions filed April 13, the National Association of Manufacturers and the American Chemistry Council asked the U.S. Court of Appeals for the District of Columbia Circuit to review the final rule (RIN 2050-AG62), issued under the Resource Conservation and Recovery Act.
The rule enables certain types of byproducts from manufacturing operations to qualify for exemptions from hazardous waste regulations under RCRA, provided they meet specific conditions.
Meanwhile, a coalition of environmental groups—California Communities Against Toxics, the Clean Air Council, the Coalition for a Safe Environment, the Louisiana Environmental Action Network and the Sierra Club—filed its own petition for review. Freeport-McMoRan Inc., one of the world's largest producers of copper and gold, also asked the court to review the regulation.
James Pew, an attorney with Earthjustice representing the environmental petitioners, said the rule left communities of color and low-income communities vulnerable to environmental and human health harms.
“This rule continues EPA's disastrous policy of excluding hazardous wastes from the cradle-to-grave protections that federal law guarantees,” Pew told Bloomberg BNA April 14. “It is disappointing and baffling that EPA would choose to let such harm continue.”
None of the other attorneys from the groups involved responded to request for comment on why they were challenging the EPA rule.
Four associations—the Utility Solid Waste Activities Group, Edison Electric Institute, the National Rural Electric Cooperative Association and the American Gas Association—filed the first petition for review of the regulation April 9 (70 DEN A-7, 4/13/15).
April 13 Petition Deadline
The deadline for filing petitions under the 90-day window prescribed under RCRA was April 13.
The EPA said its final rule, announced in December 2014 and published in early January, would allow for the beneficial reuse of hazardous materials while incorporating additional safeguards to protect human health and the environment. An estimated 5,000 entities, ranging from mining companies to chemical makers, are expected to be subject to the regulation (80 Fed. Reg. 1694).
Environmental groups said the regulation was a missed opportunity for even greater human health and environmental protections, while industry groups said it marked a significant improvement from the 2011 proposed rule.
The rule also provides a greater, up-front role to EPA in verifying the legitimacy of third-party recycling operations by requiring recyclers to submit information about their operations and demonstrating their ability to pay for any cleanups.
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(ACC Mentioned) ACC Honors Top Global Chemical Safety Initiatives
Apr 14, 2015 | Hydrocarbon Processing
The American Chemistry Council (ACC) today recognized chemical industry leaders for high accomplishments in chemical management, including environmental, health, safety and security (EHS&S) performance.
The ACC gave the awards at the 2015 Responsible Care Conference & Expo in Miami, with winners qualifying based on exemplary performance. The winners were selected by a committee made up of internal and external experts.
“Responsible Care is our industry’s commitment to continuous improvement in all aspects of our operations—from employee safety to facility security to protection of the health of the communities in which we operate and the environment as a whole,” said Paul Carrico, chair of ACC’s board committee on Responsible Care and CEO of Axiall. “The companies we are recognizing today represent the best of the best and are leaders to their industry peers.”
The following awards were presented at the 2015 Responsible Care Conference & Expo:
The Responsible Care Employee of the Year Award recognized one member for outstanding leadership in Responsible Care this year. This year’s winner was Jeff Wooster, an internationally recognized value chain sustainability expert at Dow. Wooster is responsible for market-focused sustainable packaging initiatives within Dow’s Performance Plastics business and has led education initiatives on limiting food waste, benefits of flexible packaging and recycling waste for energy recovery. He has published numerous technical papers, spoken at national and international sustainability conferences and engages on important topics in social media.
The Responsible Care Partner Award recognizes the superb performance and safety record of companies involved in the distribution, transportation, storage, use, treatment-disposal and/or sales and marketing of chemicals. This year’s winners were: Miller Transporters, based in Jackson, Mississippi; WTS in Lewiston, New York, and Union Tank Car Company in Chicago, Illinois.
The Responsible Care New Company of the Year Award recognizes member companies who have joined during the most recent certification cycle and fulfilled their Responsible Care obligations ahead of schedule. That award went to Sentinel Transportation, based in Wilmington, Delaware.
The Product Safety Award is new this year. The award recognizes those member companies who have excelled at driving continuous improvement in chemical product safety, according to the ACC. This year’s winners were AkzoNobel, based in Amsterdam, Netherlands; Dow, in Midland, Michigan; and LyondellBasell, in Houston. -
AFL-CIO Warns Senate TSCA Bill Needs Changes To Protect Workers
Apr 14, 2015 | E&E News PM
By Sam Pearson
A bipartisan Senate bill under consideration to address procedural barriers that have made it difficult for U.S. EPA to regulate toxic chemicals would improve current law in some ways, but needs changes to better protect workers, a major labor federation said this week.
The AFL-CIO, the nation's largest group of labor unions, said in a letter to Sens. James Inhofe (R-Okla.) and Barbara Boxer (D-Calif.) that the proposal "has serious flaws and deficiencies that would thwart and undermine future chemical control efforts and fails to adequately protect the public and workers from exposure to toxic chemicals."
The AFL-CIO sent the letter to the committee yesterday, and Boxer's office released it today. Boxer has been a leading opponent of the bill and has pushed her own proposal instead (Greenwire, March 12). However, industry groups consider the Boxer bill unworkable, and no Republicans support it, either.
The labor federation acknowledged that S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," which was introduced by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), has "a number of improvements" over the existing Toxic Substances Control Act of 1976. But it said problems "must be addressed before action on the bill is completed."
Specifically, the group took issue with the bill's effect on state laws, including the timing at which state laws would be overridden. Under the Udall-Vitter bill, future state restrictions of a chemical would not be permitted if EPA has begun a review of the chemical, even though it had not completed the review or taken any action to restrict a chemical as a result of the review.
The AFL-CIO also opposes a provision that would prevent states from enforcing restrictions that are identical to federal limits, a practice known as co-enforcement.
The labor group's complaints echo criticisms raised at a Senate Environment and Public Works Committee hearing last month. Udall and other supporters of the bill have defended it as a solid compromise, though some environment and public health groups have said they're concerned the plan does not contain stricter tools for EPA to address toxic chemicals it determines cause health issues.
Udall spokeswoman Jennifer Talhelm noted the bill has the support of several other labor groups, including the New Mexico Building and Construction Trades Council, International Association of Machinists & Aerospace Workers, and North America's Building Trades Unions.
These and other groups are supporting the legislation "in part because the bill explicitly protects chemical workers as well as infants, the elderly and pregnant women," Talhelm said in a statement. "New Mexico and the vast majority of states have no ability to test and protect their citizens from dangerous chemicals, and if we wait for the perfect piece of legislation, they may never get that protection because the bill won't get bipartisan support."
The bill also has the support of a group of former top U.S. EPA legal officials who served in the past four administrations, who contend it would provide new tools for the agency to review the safety of chemicals (E&E Daily, March 25).
Some lawmakers and advocates have said it's possible that changes may be made to the bill, including some of the provisions sought by the AFL-CIO, although it's not clear what negotiators will be able to agree to in the weeks ahead (E&E Daily, March 24).
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EPA: House Bill Could Delay Review Of Toxic Chemicals 'Indefinitely'
Apr 14, 2015 | The Hill - Regulation
By Lydia Wheeler
The Environmental Protection Agency (EPA) is concerned that a House proposal to reform the nation’s toxic chemical laws could “delay evaluations for some of the most dangerous chemicals indefinitely,” a top official said Tuesday.
Jim Jones, the assistant administrator of EPA’s Office of Chemical Safety and Pollution Prevention, said the draft of the bill introduced by Rep. John Shimkus (R-Ill.) allows industry groups to request chemical risk assessments, immediately starting a six-month clock for the EPA to complete a review.
“We’re concerned with the majority of risk evaluation resources going to completing requests from industry,” Jones said during a hearing of the House Energy and Commerce Subcommittee on Environment and the Economy.
Critics of the House bill argue that the review process could be exploited if businesses force the EPA to assess chemicals that aren’t much of a safety risk, leaving them without the time or resources to look at more dangerous chemicals. Industry would be required to pay for the assessments they request, however.
Unlike the chemical reform bill that Sens. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.) introduced in the Senate, the House bill does not specify which chemicals EPA should prioritize for review.
Rep. Paul Tonko (D-N.Y.), said with a new Congress, lawmakers have a new opportunity to address the shortcomings of the Toxic Substances Control Act (TSCA), which hasn't been updated in decades.
“The discussion draft makes for a great start in completing our goal of drafting a new law,” he said.
To date, Jones said the EPA has identified 80 chemicals that need to be reviewed. Assessments have been completed for five of those chemicals, with another 20 under review now.
In response to a question from Shimkus, who serves as subcommittee chair, Jones said the agency would need twice the resources it has now to review 20 chemicals a year. EPA is assessing anywhere from three to eight chemicals per year now, he said.
Though Jones said EPA has not taken a position on the House bill, the agency is concerned that the language of the TSCA Modernization Act creates an additional barrier for EPA in reviewing chemicals.
The bill would require the agency to make a finding that exposure to a chemical poses a risk to human health or the environment before it can begin an assessing that chemical, but Jones said the whole point of an assessment is to determine the risk.
The language of the bill, he said, also has EPA questioning whether it will be required to consider costs when regulating a chemical.
“It’s not clear if this discussion draft is maintaining existing cost benefit balancing or if it’s attempting to exclude costs completely,” Jones said.
Shimkus said the committee will revise the bill and issue a new draft before the mark-up, which is scheduled for May 14.
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EPA Seeks Input On Science Backing Proposed TRI Listing For Carcinogen
Apr 14, 2015 | InsideEPA
By Dave Reynolds
EPA is seeking public input on whether sufficient scientific evidence exists to back its proposal to add the chemical 1-bromopropane to the agency's Toxics Release Inventory (TRI) for reporting of chemical releases, a move the agency is justifying based on research suggesting the substance is a carcinogen worthy of tracking on TRI.
In a proposed rule slated for publication in the April 15 Federal Register, EPA says that studies show increased cancer risk in laboratory rodents exposed to the chemical, and that workers likely have been exposed to the substance, which is well absorbed following all types of exposure. Listing on the TRI would trigger requirements for facilities managing the chemical to report annually how much of it was released to the environment or alternatively controlled, such as through recycling.
The proposed listing is based on potential carcinogenicity, a risk EPA says it considered largely through review of the National Toxicology Program's (NTP) in-depth analysis of the substance in advance of classifying the substance as “reasonably anticipated to be” a human carcinogen in its most recent Report on Carcinogens.
In the proposal, EPA says the NTP's review is based on sound scientific principles and “mirrors the review EPA has historically done” before requiring reporting on the basis of carcinogenicity under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), which established TRI.
“EPA has reviewed the NTP assessment for 1-bromopropane and agrees that 1-bromopropane can reasonably be anticipated to cause cancer in humans,” EPA says in the proposed rule, which it first announced in its Action Initiation List of rulemakings launched last November.
NTP's classification of 1-bromopropane as reasonably anticipated to be a human carcinogen is “based on sufficient evidence of carcinogenicity in experimental animals and supporting data on mechanisms of carcinogenesis,” EPA says.
Citing NTP's analysis, EPA notes that studies have shown inhalation of 1-bromopropane causes tumors in two rodent species at several different tissue sites. In male rats, exposure increased risk of skin tumors, while males and females exposed to 1-bromopropane showed increase risk of intestinal tumors, which are rare in rats.
EPA says worker exposure occurs primarily through inhalation and dermal routes, and “unmetabolized 1-bromopropane has been detected in the urine of exposed workers at levels significantly correlated with exposure to 1-bromopropane in air.”
But EPA also acknowledges that the mechanism by which 1-bromopropane causes cancer is not known, and says federal officials did not identify epidemiological studies showing exposure to 1-bromopropane causes cancer in humans.
The agency adds, “Based on a review of the available production and use information, 1-bromopropane is expected to be manufactured, processed, or otherwise used in quantities that would exceed” the thresholds for TRI reporting established in EPCRA section 313, and seeks input on its conclusions. EPA will take comment on the proposed TRI listing for 60 days.
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Maryland Lawmakers Approve Bill Banning Microbeads in Certain Products
Apr 15, 2015 | BNA Daily Environment Report
By Kathy Lundy Springuel
Personal care products that contain synthetic plastic microbeads could no longer be manufactured in Maryland starting in 2018, or sold starting in 2019, under legislation (H.B. 216) passed by the General Assembly.
The measure, approved April 13, also would apply to over-the-counter drugs that contain synthetic plastic microbeads, banning their manufacture in 2019 and sale in 2020.
Erin Montgomery, spokeswoman for Gov. Larry Hogan (R), told Bloomberg BNA in an April 14 e-mail that the governor is reviewing H.B. 216 and hasn't taken a position.
As noted in the bill's preamble, microbeads are synthetic alternatives to such natural materials as ground almonds, oatmeal and pumice and are “found in over 100 personal care products including facial cleansers, shampoos, and toothpastes.”
The bill notes that while many cosmetics manufacturers “have already begun a voluntary process for identifying alternatives,” the General Assembly supported the ban because “existing biodegradable plastics do not currently biodegrade in the cool temperatures of the marine environment.”
Wastewater Treatment Plant Concerns
Preventing environmental harm from microbeads would require “significant and costly improvements to the majority of the state's sewage treatment facilities,” the preamble said.
In addition to the ban, H.B. 216 would instruct the Maryland Department of the Environment to “adopt regulations identifying biodegradable guidelines that are acceptable for use by a wastewater treatment plant.”
MDE also would have to periodically review those guidelines “to ensure that the most scientifically effective methods are being utilized to prevent, to the maximum extent practicable, the entrance of synthetic plastic microbeads in the natural aquatic environment.”
Hogan has announced bill signing ceremonies for April 28 and May 12 and has until June 2 under Maryland law to complete action on bills passed during the 2015 session.
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Former CSB Chairman 'May Have Committed Perjury,' Other Crimes -- IG
Apr 14, 2015 | E&E News PM
By Corbin Hiar
Rafael Moure-Eraso's final day on the Chemical Safety Board was Friday, but the ousted chairman could still face legal troubles stemming from his mismanagement of the EPA division that is in charge of investigating industrial disasters, officials said today.
U.S. EPA Inspector General Arthur Elkins Jr. told members of the Senate Environment and Public Works Committee today that his office "has notified the U.S. attorney that the [former CSB] chair may have committed perjury as well as other crimes."
The IG's claim appears to be largely based on a sworn statement from the CSB's onetime chief information officer. That unnamed CIO alleged that there were "inconsistencies in the chair's communications to me as well as during another oversight hearing last month," Elkins said in his opening statement to the Subcommittee on Superfund, Waste Management and Regulatory Oversight.
Elkins was referring to testimony Moure-Eraso delivered in the course of the IG's investigation of the small agency's email record-keeping practices and in a heated House Oversight and Government Reform Committee hearing, during which lawmakers from both sides of the aisle called for the CSB chairman to resign (Greenwire, March 4).
Elkins did not elaborate on his accusation, and neither subcommittee Chairman Mike Rounds (R-S.D.); ranking member Ed Markey (D-Mass.); nor Sen. James Inhofe (R-Okla.), who is chairman of the full committee, asked any follow-up questions about it. Sen. Mike Crapo (R-Idaho) was the only other lawmaker to attend the 50-minute hearing, but he didn't ask Elkins or Interior Department Deputy Inspector General Mary Kendall, the other witness, any questions.
In Elkin's written testimony, however, he gave one example of the inconsistencies raised by the CIO. The former CSB official disputed Moure-Eraso's "assertions that the CIO had conducted or overseen searches of the private email accounts of General Counsel Richard Loeb or Managing Director Daniel Horowitz," the EPA IG wrote.
Moure-Eraso resigned as chairman of the CSB last month at the request of the White House after Elkin informed the president that "there was evidence to support a conclusion that the Chairman and two of his senior officials had violated the Federal Records Act and implementing regulations by using nongovernmental email systems to conduct official business and not capturing those emails in the CSB records system," the IG testimony said. But the written statement also indicated that the CSB chairman was still serving as a board member until Friday.
Moure-Eraso had wanted to serve out the remainder of his term, which was set to expire in June. His departure leaves the five-member panel with three Senate-confirmed members, one of whom will see his term expire in June (E&E Daily, March 27).
Obama has already nominated Vanessa Allen Sutherland, chief counsel for the Department of Transportation's Pipeline and Hazardous Materials Safety Administration, to become the agency's next chairwoman.
He has also nominated Kristen Kulinowski to join the board. She is currently a research staff member at the Institute for Defense Analyses' Science and Technology Policy Institute, a federally funded, congressionally chartered research-and-development center.
Even without Moure-Eraso, CSB still has "a number of management issues," Elkins told the Senate subcommittee.
As a "good first step," he recommended "reinstating a board order that was rescinded" at the former chairman's request. The rescinded order had allowed Moure-Eraso to briefly consolidate power at the agency.
"Treating the employees with respect is a big issue" as well, Elkins said. He was alluding to claims that Moure-Eraso and other top officials retaliated against whistleblowers and created a toxic work environment that caused experienced staffers to flee CSB.
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Utilities Urge EPA, OMB To Expand Use Of Vapor Guide At Petroleum Sites
Apr 14, 2015 | InsideEPA
By Dave Reynolds
Utility industry representatives are urging EPA and White House officials to expand the use of EPA's draft risk-based criteria for assessing vapor intrusion risk at sites contaminated by leaking petroleum underground storage tanks (USTs) to more broadly cover all sites contaminated only by petroleum regardless of the source.
"There is no science- or risk-based reason to treat [petroleum hydrocarbons] differently in the context of vapor intrusion evaluation/mitigation based on their source," according to a memo that representatives from the Utility Solid Waste Activities Group (USWAG) circulated at a March 30 meeting with administration officials. "This approach will drive unnecessary costs, wasting time and money and prompting regulatory uncertainty" at petroleum-contaminated sites nationwide.
The White House Office of Management & Budget (OMB) is currently reviewing EPA's draft vapor intrusion guide for petroleum-contaminated UST sites, and a related draft guide for assessing and mitigating risks from vapor intrusion from chlorinated solvents, such as trichloroethylene -- both crafted by the agency's waste office.
The draft guidance for assessing vapor intrusion from chlorinated solvents contamination lays out a framework for investigating sites and recommends longer-term sampling of indoor air, while the petroleum vapor intrusion guidance recommends so-called separation distances, or an amount of clean soil between contamination and overlying buildings necessary for petroleum hydrocarbons to dissipate, mitigating the risk of indoor air contamination.
In the meeting with EPA and OMB officials, USWAG said the guidance intended for use at petroleum-contaminated UST sites should be used at other sites contaminated only with petroleum, arguing that document better accounts for recent science on how petroleum dissipates in healthy soil, a key difference from chlorinated solvents.
Industry has long called for EPA to permit use of so-called separation distances, or exclusion criteria, from the guidance for assessing vapor intrusion risk at leaking UST sites at other sites contaminated with petroleum from other non-UST sources, such as pipelines, above-ground storage tanks, or refinery operations.
Exclusion Criteria
The American Petroleum Institute, in October 2012 comments, urged EPA to include the exclusion criteria from the guidance for assessing vapor risk at USTs in the chlorinated solvents guidance, which also covers petroleum contamination.
In the memo to OMB, USWAG argues that petroleum-contaminated sites pose "far lower" risk for vapor intrusion than sites contaminated with chlorinated solvents. The group notes that a January 2013 EPA document finds that petroleum biodegrades, or dissipates, rapidly in healthy biologically-active soil, reducing risk of vapor intrusion, which occurs when below-ground contamination migrates into indoor air.
"Our concern is that we're using the right tool," a source with USWAG tells Inside EPA. The source says that using the chlorinated solvents guidance to assess and mitigate risk of vapor intrusion at sites contaminated only with petroleum would be inappropriate.
The draft guidance for assessing vapor intrusion risk from USTs allows sites to be screened out from further investigation if petroleum contamination is below 15 feet of healthy, biologically-active soil, while the chlorinated solvents draft guide requires investigation of pollution at depths of 100 feet, according to the industry memo.
In October 2012, a key EPA official working on vapor intrusion called non-UST sites contaminated with petroleum "highly varied," and said risk assessors at those sites should not follow the same assumptions they would when assessing petroleum contamination at UST sites. The official, speaking to a group of state regulators, also noted that that some petroleum-contaminated sites, involved products other than gasoline, in some cases pure benzene -- a known carcinogen and the constituent in gasoline that is the primary driver of vapor intrusion assessments at sites contaminated with petroleum.
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U.S. May Become Net Exporter Of Natural Gas, Petroleum, EIA Says
Apr 15, 2015 | BNA Daily Environment Report
By Rebecca Kern
For the first time since the 1950s, U.S. energy imports and exports will come into balance due to the growth in exports by the U.S. of crude oil and natural gas, and lower energy demand, the latest EIA Annual Energy Outlook found.
Net energy imports and exports will come into balance by 2028, according to projections from the Energy Information Administration's 2015 outlook, released April 14, which estimates U.S. energy markets through 2040. But in the case of higher U.S. crude oil and dry natural gas production and lower imports, the U.S. will become a net exporter of energy in 2019. In contrast, in the scenario with low oil prices, the U.S. will remain a net energy importer through 2040.
The U.S. will transition from being a net importer to a net exporter of natural gas by 2017, EIA found. Net exports of natural gas will continue to increase after 2017 to between 3.0 trillion cubic feet (Tcf ) to 13.1 Tcf by 2040. Liquefied natural gas will reach 3.4 Tcf in 2030 and continue at that rate through 2040, and make up 46 percent of total U.S. natural gas exports, EIA estimates.
Crude Oil Exports
Also, strong domestic crude oil production will lead to a decline in net petroleum imports and an increase in product exports through 2020. In the case of high oil prices and the case of high oil and natural gas resources, EIA predicted that the U.S. will become a net petroleum exporter after 2020.
Crude oil production increases to 16.6 million barrels per day (bbl/d) in 2040 in the case of high oil and natural gas resources, whereas the crude oil production in a high oil price scenario will reach a high of 13 million bbl/d in 2026, but decrease to 9.9 million bbl/d in 2040. In the low oil price scenario, crude oil production will reach 7.1 million bbl/d in 2040.
Rise in Electricity Costs
Additionally, the cost of electricity is expected to increase 18 percent from 2013 to 2040 due to rising costs of the electricity power generation, transmission and distribution, and slow growth of electricity sales, according to EIA.
Fuel costs accounted for the largest portion of generation costs in electricity bills. In 2013, coal made up 44 percent and natural gas made up 42 percent of the total electricity generation fuel costs. EIA estimates that coal will make up 35 percent and natural gas will make up 55 percent of total fuel costs in 2040, and coal and natural gas prices are projected to continue to rise each year.
EIA notes that there is a lower growth rate in electricity use due to market saturation of electricity-intensive appliances, improvements in household appliance efficiency and an economic shift toward less energy-intensive industries.
Environmental Impact
According to the EIA, energy-related carbon dioxide emissions are projected to change from 5,396 million metric tons (MMmt) in 2013 to between 5,160 (MMmt) and 5,979 in 2040 depending on factors such as economic growth.
In addition, the report said the carbon intensity of the energy supply is expected to decline by 0.2 percent per year over the projection period as utilities continue to substitute natural gas for coal in electricity generation, increases in efficiency, and increased use of renewable energy.
Electricity generation from renewables will increase from 13 percent in 2013 to 18 percent in 2040, according to the report's reference case. At that same time electricity generation from coal and nuclear power is projected to decline, the report said.
Specifically, the EIA said nuclear power generation would fall from 19 percent in 2013 to 16 percent in 2040 because of high nuclear costs and reactor retirements, and that electricity from coal generation would decline from 39 percent from to 34 percent, “as a result of retirements and very few new additions.”
EIA to Address Clean Power Plan In May
The EIA report didn't address the Environmental Protection Agency's Clean Power Plan, which would establish unique carbon dioxide emissions rates for the power sector in each state. The EPA is set to issue a final rule in June (69 DEN A-1, 4/10/15).
EIA plans to issue a report on the EPA's Clean Power Plan in May, said Adam Sieminski, the EIA's administrator, at an April 14 Center for Strategic and International Studies event in Washington.
Sieminski said EIA would issue the report “in time for Congress and policy makers to think about the issues, and for EPA itself in the run-up of its implementation.”
“We're going to try to cover the issues—we'll look at the economics and we'll look at the implications for fuels,” he said.
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PEER Protests EPA Wastewater Disposal Permits For Wyo. Reservation
Apr 15, 2015 | E&E News PM
By Dylan Brown
U.S. EPA permits allowing oil and gas drillers to dispose of wastewater aboveground on or near a Wyoming Indian reservation are "illegal and should be rescinded," according to an environmental watchdog.
Public Employees for Environmental Responsibility filed a petition with EPA's Environmental Appeals Board today, the last administrative step before the group would be forced to sue the agency.
The petition challenges five permits issued last month that allow companies operating hydraulic fracturing wells in roughly a dozen oil fields in central Wyoming to dispose of wastewater on ground in and around the Wind River Indian Reservation.
The permit process has dragged on for several years after NPR reported of raging streams of contaminated water that smelled like rotten eggs flowing across the arid landscape.
Surface disposal is banned across much of the country, as most wastewater from hydraulic fracturing is reinjected back underground. The state of Wyoming does not allow the practice, but because the federal government has regulatory jurisdiction over public lands and the reservation, EPA regulates the areas that are home to the contested permits.
PEER Executive Director Jeff Ruch said, "The chemicals in fracking fluids are so politically charged that EPA dare not speak their names." He added, "Against all reason, EPA is refusing to regulate fracking fluids even after they flow back to the surface and are pumped into streams."
In a news release, PEER blasted the agency for failing to tighten monitoring regulations and allowing rig operators to monitor and report their own chemical usage.
"EPA did not even ask operators to submit the chemical formulation or concentrations of fracking and well maintenance fluids to be injected downhole and then allowed to flow back to the surface," the group stated.
The EPA declined to comment on the appeal other than to say it will review the filing.
The exact cocktails used by oil and gas companies are closely guarded trade secrets, but PEER pointed to one study that found 632 chemicals, a quarter of which were linked with cancer or genetic mutations, used at one shale-gas operation.
According to PEER, surface water disposal is banned in the eastern United States but permitted in the West, so long as discharge is suitable for "agricultural or wildlife propagation."
PEER renewed a separate challenge to EPA last year, calling on the agency to define if fracking fluids violate that federal regulation.
Ruch dismissed industry groups that contend that groundwater contacted by drilling chemicals is safe for wildlife and livestock to consume. He noted a recent EPA proposal to pre-treat "potentially harmful" fracking wastewater bound for municipal water treatment facilities.
"We would invite advocates of feeding fracking fluids to animals to try it themselves," he said.
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Canada Official Backs ‘Continental Approach' to Environment, Energy Issues
Apr 15, 2015 | BNA Daily Environment Report
By Greg Quinn
Canada is eager to expand cooperation with the U.S. on environmental standards for oil and natural gas and to work toward a global climate agreement, Natural Resources Minister Greg Rickford said.
“A continental approach is the surest way to improve our environmental performance while enhancing our energy security and economic prosperity,” Rickford said in the text of a speech to the Bloomberg Future of Energy Summit in New York April 14. “But both our countries understand that real success hinges on global efforts.”
Canada's plans to increase energy exports through projects such as TransCanada Corp.'s proposed Keystone XL pipeline to the U.S. have been slowed in part by questions about Canada's environmental record. Rickford said there has been a long-standing record of cooperation with the U.S. on energy matters and outlined steps Canada has taken to control greenhouse gas emissions, including a ban on new coal plants.
“While some people like to cite our oil sands as a source of GHG emissions, there are no fewer than eight American states whose coal-fired power plants produce more emissions than all of the oil sands combined,” he said.
The per-barrel emissions from bitumen deposits concentrated in Alberta have fallen by 28 percent since 1990, Rickford said.
Pipelines like Keystone XL can ease U.S. reliance on oil from less stable nations, he said.
“Ultimately, what the Keystone XL pipeline will do is ensure U.S. refineries have access to a secure, reliable supply from Canada, North Dakota and Montana,” Rickford said.
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Apr 14, 2015 | The Hill - E2 Wire
By Timothy Cama and Megan R. Wilson
Native Americans are pressuring the Obama administration to reject the Keystone XL pipeline, warning the project could infringe on their water rights, harm sacred land and violate America’s treaty obligations.
Tribes sent more than 100 pages of letters to the Interior Department earlier this year raising concerns about the project, which would carry oil sands from Canada to refineries on the Gulf Coast.
“Literally, thousands of sacred and cultural resources that are important to our life-ways and for our future generations will potentially be destroyed or compromised by the pipeline construction,” wrote the Great Plains Tribal Chairman’s Association, a coalition of 16 tribes in North Dakota, South Dakota and Nebraska.
The Obama administration did not publicize the submissions, which The Hill obtained through a Freedom of Information Act (FOIA) request.
The pleas arrived in the two weeks before the Interior Department was slated to file comments on the proposed pipeline to the State Department, which is currently determining whether Keystone is in the national interest.
While their concerns differed, the tribes were nearly unanimous in opposing the project.
The South Dakota-based Oglala Sioux Tribe wrote that it “continues to fully and completely oppose the approval of the TransCanada Keystone XL pipeline,” citing potential contamination of its water supply.
Other letters of objection came from the Northern Arapaho Tribe, the Ponca Tribe of Nebraska, the Yankton Sioux Tribe, the Blackfeet Tribe and the tribes of the Fort Peck Reservation, among others.
TransCanada said it is aware of the tribes’ concerns and has taken actions in response.
“We share a deep respect for the land and we deal with the concerns expressed by tribes and other landowners respectfully,” said TransCanada spokesman Mark Cooper.
Cooper said TransCanada has worked at every stage of the planning process with tribal representatives and has had thousands of hours of meetings with them.
That consultation led TransCanada to take 59 voluntary measures it said were aimed at protecting land, water and other features that are important to the American Indian tribes.
But those measures haven’t neutralized the tribal opposition, leaving another hurdle for Keystone, which developers have been waiting more than six years to build.
President Obama has expressed skepticism about the project in recent months, and the tribal concerns could give him some ammunition to shoot down the project.
For now, Keystone’s fate is in the hands of the State Department, which is
required under a 2004 executive order to review cross-border pipeline applications with eight other agencies, including Interior. The comments from agencies were due Feb. 2.Interior sent 175 pages of letters from tribes to the State Department, according to documents obtained by The Hill. But the most crucial document sent by the department — Interior’s own view of Keystone — remains secret.
Secretary of State John Kerry has refused to release comments from federal agencies on whether the $8 billion project is in the national interest, outraging congressional Republicans.
“When Secretary Kerry was sworn in, he guaranteed — and he used that word, ‘guaranteed’ — a fair, transparent and accountable review of the Keystone pipeline,” Speaker John Boehner (R-Ohio) said in February.
Interior declined to disclose its comments on Keystone, as well as any correspondence between it and the State Department — the primary focus of The Hill’s FOIA request. The department said those documents are under the jurisdiction of the State Department.
Jessica Kershaw, a spokeswoman for Interior, said that the agency “encouraged the State Department to give appropriate consideration to comments previously submitted during the Keystone XL permit review process as well as concerns expressed by some tribes in Indian Country about the project.”
While TransCanada Corp. is not planning for the pipeline to cross any tribal land, some Native Americans fear the project could infringe on their rights.
Cyril Scott, president of the Rosebud Sioux Tribe, in November declared that approving Keystone would be “an act of war against our people.”
Various executive orders, laws and treaties require federal officials to consult with Native American tribes about decisions that could affect them.
Experts say the comments from the tribes about Keystone are not empty threats and the federal government needs to ensure that it is taking their views into consideration.
“The tribes in the Great Plains are very concerned with what the Keystone XL project could have on their treaties [with the U.S. government] and their water rights,” said John Dossett, the general counsel of the National Congress of American Indians.
Tribes could have legitimate concerns with Keystone over its impacts on aquifers and the potential for oil spills, Dossett said.
TransCanada said it sharply disagrees with the tribes’ concerns about spills.
“Keystone XL is going to be the safest pipeline constructed on American soil,” Cooper said. “The safety redundancy that’s built into this pipeline has never been seen before.”
Maylinn Smith, director of the Indian law clinic at the University of Montana, said federal officials have to listen to the tribes as they consider the permit, but she said their concerns might not stop Keystone.
“There is an executive order that requires consultation, there’s an executive order that requires protection of tribal sacred sites, and those have to be taken into consideration,” Smith said.
Cooper said he could not guess whether whether the tribes’ objections would doom Keystone’s permit.
“All I can say is, we’ve worked very closely to establish these relationships and we’re going to continue to respond to concerns, to work within these communities,” he said.
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Obama Legacy Gets Second Legal Test Over ‘Goof’ in Climate Rule
Apr 15, 2015 | Bloomberg Business
By Mark Drajem & Andrew Zajac
A congressional drafting error and clunky phrase is putting a second of President Barack Obama’s signature endeavors in jeopardy. This time it’s climate change.
Challengers to Obama’s policies are exploiting a law written 25 years ago in a lawsuit to derail Environmental Protection Agency rules designed to curb carbon emissions. The case, using a line of attack similar to one against his massive health-care overhaul, is set for a hearing Thursday in federal court.
If coal-mine operator Murray Energy Corp. and states led by West Virginia convince a panel of judges named by Republican presidents to agree with their reading, the EPA rules could be tossed before they are made final.
“It’s a perfect storm of timing and congressional goofs that leads to these interesting arguments,” said Thomas Lorenzen, a former government lawyer on clean-air cases and who is now a partner at the law firm Dorsey & Whitney. “And Murray Energy drew a good panel for themselves, so there will be some conflicting tendencies there.”
Courts have rejected attempts to challenge rules before they become effective, and the carbon rules would be completed until later this year. EPA Administrator Gina McCarthy said she’s confident Murray’s lawsuit will be dismissed, too.
“There’s been no final action they can challenge,” said David Doniger, director of the climate program at the Natural Resources Defense Council, which filed briefs in support of EPA. “Even with a conservative panel, that will be an issue.” Review Looms
Still, either now or later, a federal court will need to rule on these issues, and they’ve taken on great political importance as Obama has made fighting climate change a top priority in the final years of his presidency.
For the administration, this case has similarities to the challenge over the Affordable Care Act that is awaiting a decision by the Supreme Court. In that case, the fight is over a phrase that says people qualify for tax credits when they buy insurance on an exchange “established by the state.”
Obama opponents say that phrase means subsidies aren’t available in dozens of states that didn’t set up exchanges. Residents of those states instead use the federal healthcare.gov system, with an estimated 7.5 million getting taxpayer-subsidized discounts.
The carbon rule’s effects are primarily on power utilities, but will have broad impacts on citizens and the economy, both supporters and critics say. Health Benefits
Meeting agency standards for reducing carbon dioxide would produce $90 billion in climate and health benefits and cost utilities as much as $8.8 billion, according to the EPA. Obama has also pushed a broader climate plan that would make freezers, microwaves and other appliances more efficient; curb methane from landfills; and cut the use of climate-altering chemicals in air conditioners.
Congressional Republicans are sparing no effort to fight those initiatives. Senate Majority Leader Mitch McConnell wrote state leaders this year, urging them not to implement the EPA rule, much as many states refused to establish state insurance exchanges for Obamacare.
To add legal heft, coal producer Peabody Energy Corp. hired Laurence Tribe, Obama’s law professor and mentor at Harvard University, to help. Tribe, a leading liberal constitutional scholar, has argued 35 cases at the Supreme Court, including the 2000 election case for Democratic presidential candidate Al Gore over Republican George W. Bush. Tribe Role
Tribe, who says the EPA rule is akin to ripping up the Constitution to address climate change, is scheduled to handle part of the oral argument against the government at the U.S. Court of Appeals in Washington.
Murray Energy, the biggest closely held U.S. coal company, challenged the law in June, and was joined in February by Peabody, the largest publicly held coal company.
Fifteen states, all with Republican attorneys general except coal-heavy Kentucky, have sided with coal producers, along with business groups including the National Federation of Independent Business and the U.S. Chamber of Commerce.
At issue is how the EPA used sections of the Clean Air Act to regulate pollution. The companies argue the rules violate an amendment to the Act in 1990, which they say limits regulation of the facilities for pollutants to just one section of the law. Since the EPA in 2011 mandated cuts in mercury and toxic emissions from power plants under section 112, they can’t also be regulated for carbon pollution under section 111(d), which is what the EPA proposed last year. ‘Unambiguously Prohibits’
“The plain text of section 111(d) flatly and unambiguously prohibits EPA’s proposal,” Tribe told a congressional panel last month. “The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a ‘power grab.’”
The EPA’s lawyers counter that a drafting error by lawmakers actually created separate amendments for that part of 111(d); one passed the House and the other by the Senate. When different versions of legislation are blended into a final document, such conflicts are supposed to be resolved. Yet both were in the bill passed by Congress and signed into law.
While the agency argues neither prohibits the carbon regulation it’s pursuing, the Senate amendment doesn’t contain any restrictions on double regulation. The House measure would only prohibit double regulation of specific pollutants, and doesn’t include a general prohibition on regulating power plants in two different areas, the EPA’s supporters say. Disputed Interpretation
“The novelty of this situation does not justify petitioner’s unique approach to statutory interpretation,” Harvard Law School professors Richard Lazarus and Jody Freeman, said in a filing on behalf of the EPA. “EPA’s proposed interpretation is at the very least reasonable.”
And the legal wranglings have one odd twist. Many of the states questioning the carbon rules have also taken a case to the Supreme Court arguing that the EPA failed to account for costs before issuing its mercury rule under section 112. If that rule gets tossed by the highest court, then it would remove the double regulation argument against the carbon plan.
The Supreme Court case was argued last month, and a decision will come in the next few months.
The case is In re: Murray Energy Corp., 14-1112, U.S. Court of Appeals, District of Columbia (Washington). A separate case, West Virginia v. EPA, 14-1146, was consolidated with it.
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Obama’s Climate Change Plan Faces Crucial Test
Apr 15, 2015 | The Hill - E2 Wire
By Timothy Cama
Regulations at the center of President Obama’s climate change initiative face a crucial test this week when opponents will attempt to block them before they’re even made final.
A federal appeals court in Washington, D.C., will hear oral arguments Thursday in a high-stakes legal challenge to the Environmental Protection Agency’s (EPA) proposed emissions limits for existing power plants.
Murray Energy Corp., a major coal mining company, is asking the court to do something that it admits is extraordinary: block the EPA from completing the work on its regulation and making the rule final, which it plans to do this summer.
The company, which is leading the case on behalf of multiple energy companies, expects that the climate rule would harm its business by dramatically reducing the use of coal for power generation.
Murray will likely tell the Court of Appeals for the District of Columbia Circuit that the rule is so blatantly illegal and is causing such a clear harm to the company’s business that the court needs to step in as soon as possible.
“As the stakes are so high, and delay will waste enormous amounts of industry, state, and federal resources and result in increased coal fired power plant retirements that cannot be later remedied, this petition requests an extraordinary writ in aid of this court’s undoubted jurisdiction over EPA’s mandate,” the company wrote in a brief to the court.
The judges will also hear from a coalition of 15 mostly Republican-led states, headed by West Virginia. They say that a 2011 settlement in which the EPA agreed to evaluate whether to write the power plant rules was illegal because the EPA did not have the authority to sign it.
While both cases are seen as facing an uphill battle, the court randomly assigned three of its most conservative judges to the panel hearing the case.
All three — Karen Henderson, Thomas Griffith and Brett Kavanaugh — were appointed by Republican presidents.
Kavanaugh has been especially critical of the EPA, and he and Griffith formed the majority in a 2012 decision overturning the EPA’s rule to limit air pollution across state lines. They criticized the EPA for what they saw as an overly broad interpretation of its authority under the Clean Air Act.
But to proponents of the EPA’s rule, a conservative panel can’t overshadow the longstanding precedent in which a regulation must be made final before it can be overturned.
Supporters and opponents of the regulation fully expect that such a lawsuit will be filed shortly after the EPA finalizes the rule, and that the case will likely be appealed all the way to the Supreme Court.
“I think most people would call it a conservative panel, but it’s not as clear just how conservative on these kinds of issues,” said Jody Freeman, an environmental law professor at Harvard Law School, who supports the regulation.
Even a conservative judge like Kavanaugh could understand the “damage” from prematurely hearing a case like this, she argued.
“The government has a very strong argument that all of the precedent says you’ve got to let the agency finish its process,” she said.
Richard Revesz, director of the Institute for Policy Integrity at New York University and another supporter of the rule, said the question of the timing of the lawsuit is not partisan.
“This is a very standard administrative law issue on whether cases can be heard … and I think for cases of this sort, it shouldn’t matter who the judges are,” Revesz told reporters Tuesday.
Even experts who believe the EPA’s rule is illegal think that it’ll be difficult to overturn in court at this stage.
“I think we all understand that there are hurdles that the petitioners have to get past in terms of suing on a proposed rule,” said Peter Glaser, an attorney at Troutman Sanders who believes the EPA does not have the authority to write the rule.
Murray’s argument on the merits of the regulation centers on 1990s amendments to the Clean Air Act that expressly prohibit the EPA from regulating carbon emissions from a source, like power plants, whose emissions are already limited by another section of the law.
The EPA disagrees. It says that the House and Senate passed two different versions of that provision, and the EPA’s interpretation is justified.
“Since we have not issued a final rule, we believe that lawsuits challenging the rule are premature,” said EPA spokeswoman Liz Purchia. “In response to previous challenges to EPA rules, courts have reaffirmed repeatedly the science, law and reasoning on which our rulemaking has relied.”
The EPA included an extensive legal justification with the regulation it proposed in June.
As for the challenge from West Virginia and the other states, the EPA has argued to the court that the Clean Air Act — not the 2011 settlement — is what obligates it to regulate greenhouse gases from power plants.
Even so, the clock ran out on challenging that settlement years ago, the administration argues.
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House Lawmakers Squabble With EPA Over Power Plant Bill, Impacts of Carbon Rules
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
House Republicans acknowledge that draft legislation allowing states to opt out of the Environmental Protection Agency's carbon pollution rules for power plants was a forceful response but said such an approach is necessary given the agency's “extreme, radical” approach to redefining the electricity markets in every state.
The EPA's top air official, Janet McCabe, said the draft Ratepayer Protection Act—nominally the focus of the House Energy and Commerce subcommittee hearing—would allow “unlimited delay” in implementing the measures to reduce carbon dioxide pollution from power plants and sought to reassure restive lawmakers the EPA would address electricity cost and reliability concerns in its final rule.
“EPA believes the draft is premature, because EPA has not yet finalized the Clean Power Plan, unnecessary, because EPA has the tools and indeed the obligation to address cost and reliability issues in our final rule and ultimately harmful because the bill, if enacted, would delay or prevent climate and air quality benefits,” McCabe said. “We do expect to make some changes in these rules that will address these concerns. When the final rule comes out, you will see we've been very responsive.”
House Republicans weren't impressed.
McCabe Called ‘Delusional.'
Full committee chairman Fred Upton (R-Mich.) pronounced the Clean Power Plan the “Obamacare approach” to state electricity systems, Rep. David McKinley (R-W.Va.) called McCabe “delusional” for asserting the rules would result in lower electricity bills for consumers once fully implemented and former committee chairman Joe Barton (R-Texas) said the approach was nothing more than “politically correct social policy” that would be struck down by courts.
“Anyone familiar with the Clean Air Act should not—in any way—be surprised that Congress would try to stop, slow down or, as Ms. McCabe said interfere with efforts to rush implementation of the rule,” Whitfield said. “We think you're overstepping your authority. We think you're now legislating. Experts in the Clean Air Act have described this proposed rule as extreme, radical and a power grab.”
Whitfield's Energy and Commerce Subcommittee on Energy and Power was examining a discussion draft of the Kentucky Republican's Ratepayer Protection Act, which has yet to be formally introduced. That legislation would offer states two possible paths to indefinitely delay complying with the EPA's Clean Power Plan (RIN 2060-AR33), which the agency proposed under Section 111(d) of the Clean Air Act.
States Could Opt Out of Rule
One provision would allow states to opt out of the rule if it would increase utility rates or jeopardize reliability, and another would allow states to postpone submitting their plans for complying with the emissions reduction goals until after all legal challenges are exhausted.
In her prepared testimony, McCabe said Whitfield's draft bill marked “unprecedented interference” in the EPA's attempts to use its authority under the Clean Air Act and said the final rule would be on firm legal footing (71 DEN A-4, 4/14/15).
‘Groundhog Day' From Republicans
House Democrats took exception to Republican characterizations of the proposed carbon pollution standards for existing power plants and said Whitfield's draft was essentially an amendment to the Clean Air Act that would allow certain states to avoid complying with environmental laws.
Rep. John Yarmuth (D-Ky.), the lone Democrat in Kentucky's congressional delegation, said the repeated concerns from Republicans that EPA air regulations would provide few health benefits while harming the economy and costing jobs reminded him of “Groundhog Day.”
“These doom and gloom scenarios seem not to play out in reality,” Yarmuth said. He added that Kentucky would have a “very workable” plan “with minimal impact on our consumers” once the carbon pollution regulations are finalized.
Would Overturn Cooperative Federalism
Rep. Frank Pallone (D-N.J.), ranking member of the full House Energy and Commerce Committee, said the bill would “overturn the principle of cooperative federalism” and allow “scofflaw states [to] get a free ride to pollute without any consequences.”
“This bill would provide an incentive for polluters to run the clock on litigation so all deadlines in the rule would be extended as long as possible,” Pallone said. “This is an incredibly reckless and dangerous precedent with regard to any law.”
McCabe, again, said the agency intends to incorporate changes into its final Clean Power Plan, due out this summer, in response to feedback gathered from extensive outreach and public comments.
The Clean Power Plan would establish unique carbon dioxide emissions rates for the power sector in each state. States would be required to meet interim targets between 2020 and 2029, with a final emissions rate to be achieved in 2030 but would have flexibility as to how best to meet their individual targets.
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Senators Ask States to Reject McConnell Call To ‘Just Say No’ Regarding Power Plant Rule
Apr 15, 2015 | BNA Daily Environment Report
By Anthony Adragna
Five senators have asked the nation's governors to reject calls from Senate Majority Leader Mitch McConnell (R-Ky.) to “just say no” and not comply with the Environmental Protection Agency's carbon pollution rules for existing power plants.
“Before you take advice about climate change from Senator McConnell please consider first what so many knowledgeable voices from the Bluegrass State are saying about climate change, and second how failing to act gives up your state's right to set its own course of action toward a clean energy future,” the April 14 letter from Sens. Sheldon Whitehouse (D-R.I.), Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Al Franken (D-Minn.) and Barbara Boxer (D-Calif.) said.
On March 19, McConnell urged the nation's governors to “carefully review the consequences before signing up for this deeply misguided plan” and said he had “serious legal and policy concerns” with the proposed Clean Power Plan.
That followed an earlier op-ed in which the Kentucky Republican urged states to “hold back” their implementation plans for the regulation (43 DEN A-1, 3/5/15).
Kentucky ‘Already Crafting Its Plan.'
The senators, though, said McConnell's own state is “already crafting its plan for complying” with EPA's proposed rule and pointed to entities within Kentucky that are actively engaging on the regulation.
The Lexington Herald-Leader, one of the largest newspapers in the state, wrote in an April 13 editorial that McConnell's strategy was “misguided” and accused the Senate majority leader of being “at odds” with most Americans.
“His is not the voice from ahead saying the trail is not safe,” the senators wrote. “His is the voice obstinately staying behind saying, ‘Let's not even try.' ”
McConnell has called the proposed Clean Power Plan (RIN 2060-AR33) “unfair” and “probably illegal,” while warning it would have a negligible impact on the global environment but cost thousands of jobs.
The EPA's proposal would establish unique carbon dioxide emissions rates for each state's power sector, and every jurisdiction would then determine how best to achieve the emissions reductions targets.
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Dems Hit Back At Mcconnell, Ask States To Follow Climate Rule
Apr 14, 2015 | The Hill - E2 Wire
By Devin Henry
A group of Democrats is dragging Senate Majority Leader Mitch McConnell’s (R-Ky.) home turf into the fight over the Obama administration’s Clean Power Plan.
Five Senate Democrats, led by Sen. Sheldon Whitehouse (R.I.), penned a letter to the nation’s governors Tuesday saying that McConnell’s views on climate change are out of line with his own Kentucky constituents, and urging states to comply with the climate rule.
It's an effort to rebuff McConnell’s March op-ed encouraging states to opt out of writing their own regulations under the Environmental Protection Agency's proposed emissions reduction plan.
The letter, first reported by Huffington Post, highlights a litany of Kentucky institutions — from universities to government agencies to a gas company — that either agree on the science behind climate change or support climate-change legislation.
The University of Kentucky, the senators wrote, contends “there is almost no meaningful scientific controversy” over man-made climate change, while the University of Louisville encourages students and staff to “inform, inspire, and educate others about the climate change crisis.”
The letter also highlights Columbia Gas of Kentucky, a company that supports “reasonable policies addressing climate change.”
“Kentucky is already crafting its plan for complying with the Clean Power Plan,” the letter says. “The Commonwealth of Kentucky’s decision to work with the EPA and prepare a plan was based, according to the Kentucky Energy and Environment Cabinet, on what ’the overwhelming majority of our stakeholders are telling us.’”
In additional to Whitehouse, Sens. Barbara Boxer (D-Calif.), Elizabeth Warren (D-Mass.), Al Franken (D-Minn.) and Bernie Sanders (I-Vt.) signed the letter.
The proposed Clean Power Plan aims to reduce greenhouse gas emissions by 30 percent by 2030 by setting reduction targets for states, which then write their own plans for meeting those goals.
McConnell wrote an op-ed in a Kentucky newspaper last month encouraging states to refuse to conform to the plan, which he called “unfair” and “probably illegal." The GOP Senate leader warned the plan was too costly and likely to fall in the face of lawsuits.
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Senate Democrats Say McConnell ‘Staying Behind’ On Climate Rules
Apr 14, 2015 | National Journal
By Jason Plautz
Senate Democrats are fighting back against Majority Leader Mitch McConnell's ploy to get governors to opt out of the EPA's climate rules for power plants, by telling them how his home state of Kentucky is acting to address climate change.
In a letter to all 50 governors, the Democrats—including Massachusetts' Elizabeth Warren—say that states should not listen to the Kentucky Republican, who has called on states to wait for legal challenges to play out before submitting plans to comply with the emissions reduction rules.
The letter quotes from organizations and scientists in McConnell's home state about the threat of climate change, and points out that the state has begun crafting its own compliance plan. It cites language concerning climate change from several state agencies, the University of Kentucky, and Columbia Gas of Kentucky.
"His is not the voice from ahead saying the trail is not safe; his is the voice obstinately staying behind saying, 'Let's not even try,'" the letter says.
Besides Warren, the letter was signed by Rhode Island's Sheldon Whitehouse, California's Barbara Boxer, Minnesota's Al Franken and independent Bernie Sanders of Vermont.
In his own letter to the National Governors Association last month, McConnell said the EPA proposal is "already on shaky legal grounds" and said states wouldn't face legal consequences for not complying.
"Some have recently suggested that failing to comply with the EPA's requirements would be to disregard the law," McConnell wrote. "But the fact is, it is the EPA that is failing to comply with the law here."
The Democrats' letter is part of a larger attack from the left on McConnell. The Natural Resources Defense Council Action Fund on Wednesday will launch an ad targeting McConnell over a GOP agenda that aims to scale back environmental rules.
On Tuesday, several environmental groups held a press call blasting McConnell on his first 100 days as majority leader, with Friends of the Earth president Erich Pica saying the Republican majority was "rewarding big oil, coal, gas, with votes, amendments, bills that attempt to undermine the fundamental bedrock laws that the environmental community has been fighting for the last 45 years."
The EPA this summer will finalize the power plant rule, which requires a 30 percent reduction in carbon emissions from 2005 levels by 2030 from existing power plants. States are required to write their own plans, but EPA can impose a federal plan for a state that does not comply. Opponents have expressed concern that the federal plan could be more severe or less state-specific than what its own regulators would produce.
House Republicans also are getting behind McConnell's strategy—the House Energy and Commerce Committee on Tuesday held a hearing on a proposed bill that would bar the EPA from implementing its power plant rules until all legal challenges were completed. Energy and Power subcommittee chairman Ed Whitfield said the "legal infirmities" in the rule guaranteed a long court battle, but that states would have to "initiate costly and potentially irreversible compliance steps before these legal challenges are concluded."
EPA acting air chief Janet McCabe said the concerns were invalid and blasted the discussion draft as "premature, unnecessary and ultimately harmful."
"To allow governors to opt out is completely inconsistent with the way Congress wrote the Clean Air Act," McCabe said, adding that it would be "disruptive" to have individual states sit out a federal plan.
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Quebec Energy Minister Arcand Discusses Province's Role in EPA Power Plan
Apr 15, 2015 | E&E Daily News
Should international renewables be considered as part of Clean Power Plan compliance? Is the Clean Power Plan an avenue for growth for existing international collaborations on emissions reduction and trading? During today's OnPoint, Pierre Arcand, Quebec's minister for energy and natural resources, who is in Washington, D.C., for his first official visit, discusses his meetings with a wide range of U.S. government officials this week on the power plan and cross-border energy flows. Today's OnPoint will air on E&ETV at 10 a.m. EDT.
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Coal Use Could Increase Without Clean Power Plan -- EIA
Apr 15, 2015 | E&E News PM
By Manuel Quiñones
Overall U.S. coal use could increase slightly by 2040, despite the ongoing market downturn, according to the U.S. Energy Information Administration's latest energy outlook.
EIA forecasts roughly 40 gigawatts of coal-fired power plant capacity will retire between 2013 and 2040. And coal's share of power production will drop from 39 percent to roughly 34 percent. Few, if any, new coal plants will come online.
However, demand from existing plants could help coal use grow from 925 million short tons in 2013 to 988 million short tons in 2040, said EIA.
When it comes to coal production, EIA expects it to increase at an average rate of 0.7 percent every year, from 985 million short tons in 2013 to more than 1 billion short tons in 2040.
Higher natural gas prices, EIA said, could help buttress coal enough to keep it the top fuel in U.S. power generation. High oil prices could also encourage coal-to-liquids production, which has been largely dormant.
But EIA stressed that none of the scenarios it studied include U.S. EPA's Clean Power Plan, a proposal to cut greenhouse gas emissions from existing power plants.
EIA said the Clean Power Plan "if implemented would likely have a substantial impact on coal use for power generation and coal markets more generally."
EIA Administrator Adam Sieminski said today during a Center for Strategic and International Studies event that he expected EIA to release a Clean Power Plan analysis in the coming weeks.
EPA has said coal would remain an important U.S. energy source under the Clean Power Plan but in a diminished capacity (Greenwire, June 2, 2014). Coal companies see the rule as their biggest threat.
But even without the Clean Power Plan, at least some of coal's woes would continue, EIA said. Appalachia, which has led the country in related job losses, would continue to see prices increase and production drop.
Coal production in the interior of the country, including the Illinois Basin, does the best under EIA's outlook. Pollution control technology has allowed plants to burn more of its high sulfur coal.
Coal exports have dropped in recent years, but EIA expects them to increase gradually to 141 million short tons in 2040. Much of that coal would come from Western and interior mines.
Beyond coal, EIA said the United States would likely stop being a net energy importer some time between 2020 and 2030. EIA also said the United States would be a net natural gas exporter by 2017.
The forecast said a list of market and regulatory conditions favored the increased growth of renewables to 18 percent of power production by 2040. Natural gas would go up to 31 percent and nuclear down to 16 percent under the base-case scenario.
EIA said that greenhouse gas emissions, as a result of trends toward low-carbon power sources, would likely remain below 2005 levels through 2040.
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Panel Gets Tweaked Legislation to Mark Up
Apr 15, 2015 | E&E Daily News
By Manuel Quiñones
The House Energy and Commerce Committee is scheduled to vote on legislation this morning to tweak U.S. EPA's new regulations affecting coal combustion waste.
The bill, H.R. 1734, cleared the Environment and the Economy Subcommittee last week. But backers say they made a few changes since then meant to address some EPA concerns.
In general, the legislation incorporates most of the provisions in EPA's rule, which the agency released in December. It would also address some concerns about the agency's regulatory approach by pro-coal lawmakers.
EPA's decision to regulate coal ash as nonhazardous means the agency's new rules are self-implementing -- to be policed by states or citizen lawsuits.
Legislation backers -- including Rep. David McKinley (R-W.Va.) and subpanel Chairman John Shimkus (R-Ill.) -- want to clarify enforcement by creating a state-centered regulatory system with limited EPA oversight.
But yesterday evening, Shimkus said the bill scheduled for markup also included clarified public disclosure requirements, mandating that information regarding ash dumps be put online.
"The bill also clarifies that the implementing agency will require corrective action for every release," said Shimkus during the markup's opening statements.
"[B]ut for releases other than releases to groundwater," he added, "the implementing agency may require corrective action under another applicable state of federal law so long as the level of protection is the same as corrective action under the final rule."
Full panel Chairman Fred Upton (R-Mich.) called the legislation a "model of thoughtful collaboration." Referring to legislative efforts in previous years, before EPA finished its rule, Upton said, "We hope the third time is the charm in getting the job done."
Still, environmental groups oppose the legislation because of other changes to EPA's rule, including provisions for the placement of ash slurry impoundments.
A letter to the panel yesterday from dozens of green and public health groups also outlined concerns about implementation delays and said EPA's rule was better off left alone.
In response, the committee's top Democrat, New Jersey Rep. Frank Pallone, called the bill "unnecessary and dangerous" during remarks yesterday.
Texas Rep. Gene Green, one of its Democratic supporters, said the bill was "not perfect" but saw it as an improvement from EPA's rule.
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ESPS Arguments Expected To Focus On Jurisdiction But Merits May Get Play
Apr 14, 2015 | InsideEPA
By Dawn Reeves
The U.S. Court of Appeals for the District of Columbia Circuit is poised to hear arguments April 16 in a set of cases challenging EPA's plan to limit greenhouse gases (GHGs) from exiting power plants, litigation that will almost certainly be decided on whether the court has jurisdiction to review a proposed rule though the judges are expected to probe the complicated substantive issues that will be re-litigated should the rule be finalized, sources say.
One industry source expects the arguments to touch on the merits claims brought by West Virginia and other state and industry opponents of EPA's proposed existing source performance standards (ESPS), which hinge on the threshold question of whether the agency is prohibited from regulating GHGs at power plants under section 111 of the Clean Air Act because it already regulates their toxic emissions under section 112.
But the suits face procedural hurdles because EPA has not yet finalized the GHG rule, which is typically the point at which courts have jurisdiction to review a regulation.
As a result, the industry source doubts that a ruling will go beyond the jurisdiction issue, especially since the 112 argument depends in part on a pending Supreme Court ruling in a separate set of cases that could result in the toxics rule being vacated.
An environmentalist agrees that the judges are likely to ask questions on the merits but unlikely to rule on them. “I won't be too worried if they do get into the merits some. The court shouldn't reach them in the decision.”
The source also says the reason the court is likely hearing the unusual litigation is because one of the three cases is brought by state plaintiffs and the court “tends to show them more respect.”
One legal expert adds that it is almost unimaginable that the court would find the merits issues to be ripe.
Technically, the court is hearing three cases: In re Murray Energy Corp., where industry is citing the All Writs Act to win a court ruling blocking EPA from proceeding with the ESPS; Murray Energy v. EPA, which argues that the proposed rule is already causing injury so the petitioners have Clean Air Act standing to bring the claim now; and West Virginia, et al. v. EPA, where states are arguing that a lapsed settlement between the agency and states and environmental groups that may have led to the ESPS is unlawful.
Each of the suits say EPA’s proposed rule is barred because the agency cannot regulate power plants’ GHG emissions under section 111(d) when it already regulates the plants’ mercury emissions under section 112.
But the issue is complicated because House and Senate amendments to section 111(d) were never reconciled in a conference committee before the 1990 air act amendments were signed into law. The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section. The House amendment could be read as prohibiting it because the focus of the exclusion is on source categories, not pollutants, though EPA has offered an interpretation that would allow it to proceed even under the House language.
As a result, if the court reaches the merits, it will have to determine whether EPA's interpretation should be granted deference.
Some of EPA's opponents are also offering constitutional arguments. For example, Harvard Law Professor Laurence Tribe, arguing on behalf of Peabody Energy, is expected to argue that the proposed rule coerces states into adopting low-carbon energy policies in violation of the high court's recent holding that the government could not withhold Medicaid funding from a state that refused to expand the program.
GOP Appointees
The judges on the panel -- Karen LeCraft Henderson, Thomas B. Griffith and Brett M. Kavanaugh -- were all appointed by Republican presidents. The industry source expects Kavanaugh and Griffith in particular to ask merits-related questions.
But EPA supporters are downplaying any ideological concerns. Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, told reporters on an April 14 press call that the judges are expected to be strong proponents of long-standing administrative law that holds that courts lack jurisdiction to review rules that are not yet final.
“For cases of this sort, it shouldn't matter who the judge is,” Revesz said.
Also Sean Donahue, who will argue on behalf of Environmental Defense Fund (EDF), noted that the D.C. Circuit is the nation's administrative law court and that the judges assigned to this panel “readily understand the unusual nature” of the lawsuit as well as its implications.
Even West Virginia Attorney General Patrick Morrisey (R) appeared to acknowledge the procedural hurdle his side faces. “We recognize that we're in a 'David versus Goliath' situation,” he told a West Virginia newspaper April 13. “I think we're correct on the law, but we are asking the court for a significant ruling, so it's difficult to predict whether we'll prevail now.”
The environmentalist also notes that the administration has faced a challenging task in the case -- and one that is likely to continue when Department of Justice attorney Amanda Shafer Berman argues on EPA's behalf -- which is to defend its position opposing the challenge without a final rule.
That prompted the agency to put out a menu of objections to petitioner arguments, with some of those being stronger than others, the environmentalist says.
If the rule were final, the administration wouldn't be in the same position and when the case is eventually heard on the merits “they'll be able to present their arguments in a much more robust fashion,” the source says.
Despite the fact that the court is hearing the case and the difficulties the agency faces in making a conclusive argument, EPA and its supporters are projecting confidence that they will prevail.
“I am entirely confident we are in the right side,” EPA Administrator Gina McCarthy told an April 10 event at the University of Chicago. She added that there is “no validity” to the constitutional arguments made by Tribe.
She previously told a March 30 event that the agency has a good legal track record in its GHG air act approach. “We've been having some pretty good success, and the Supreme Court has addressed the issue of carbon pollution three times already, so we want to make sure we get a fourth win under our belt.”
Regulating GHGs
Environmentalists on the April 14 press call also noted that one of the high court cases specifically addressed EPA's authority to regulate GHGs under section 111, at issue here.
EDF's Donahue explained that industry argued in the Supreme Court case American Electric Power v. Connecticut that the proper way for EPA to regulate GHGs is under section 111 rather than common law. There is “a real about-face . . . in the claims before the court now,” he said.
EDF's Vicki Patton noted on the call that courts, including the D.C. Circuit and a federal district judge in Nebraska, have previously rejected on procedural grounds similar challenges to EPA's proposed new source performance standards also under section 111.
Donahue added that there is no example of a case where a court has “tolerated this sort of thing” and is “confident” that will remain “true after this case as well.”
Revesz also sought to dismiss Tribe's arguments, saying none of the professor's claims are “remotely meritorious” and were made “more to mislead the political process than to educate the court.”
Revesz agreed that there would be “enormous mischief” created if the court reaches the merits of the claims and said he is “reasonably confident” that “decades” of administrative law will prevail.
David Doniger of the Natural Resources Defense Council told reporters on a separate April 13 call that it is “black letter law” that proposals cannot be challenged. The court is poised to hear arguments “in cases that are premature. They have jumped the gun,” he said. But the National Mining Association in an April 14 statement appeared to expect a merits ruling, saying the court “will decide whether the Clean Air Act means what it says. EPA's prior actions to regulate different power plant emissions under another provision of the law now preclude sit from burdening these same sources with the weight or more risky and costly mandates that yield no material benefit.”
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State Regulators Urge EPA to Do More On Emissions From Upwind Polluter States
Apr 15, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
The Environmental Protection Agency needs to do more to curb ozone emissions from heavy polluting states like Pennsylvania that foul the air of neighboring states, regulators from Maryland, New Jersey and Connecticut said April 14 at a public hearing in Trenton, N.J.
“The EPA has not done its job in addressing upwind states that contribute up to half our ozone pollution,” New Jersey Department of Environmental Protection (NJDEP) Commissioner Bob Martin said at the hearing.
The EPA has allowed coal-fired power plants in Pennsylvania to turn off emission controls “despite the fact that those emissions significantly contribute to poor ozone quality in New York, New Jersey, Connecticut and other states,” he said. “The federal government should be stepping in.”
Organized by the New Jersey Clean Air Council, an independent advisory body to the NJDEP, the roundtable discussion focused on regional approaches to ground-level ozone and sought answers to the problem of transport, the movement of pollutants over long distances.
The hearing is the first step in an annual process that culminates with a list of recommendations delivered to the DEP commissioner in July.
Ric Pirolli, director of the planning and standards division of the Connecticut Department of Energy and Environmental Protection, told the group that Connecticut has some of the highest ozone levels in the region, yet the state isn't a high emitter.
Most of the state's pollution comes from New York, New Jersey and Pennsylvania, he said. “Clearly we're not on a level playing field,” Pirolli said. “Connecticut can't do this alone.”
He added, “We need the EPA to take action.”
Maryland, too, has “tiny emissions” yet “the worst ozone in the East,” said Tad Aburn, director of the Maryland Department of Environment's Air & Radiation Management Administration.
‘Ocean' of Ozone Hangs Over East Coast
Research his department has done on the transport of pollutants revealed an “ocean” of ozone hanging aloft over the entire East Coast.
There is also a “river” of nighttime transport moving pollutants south to north from the Ohio River Valley into Maryland and New Jersey. “We didn't even know about this 10 years ago, but now we do,” he said.
Maryland is taking legal action over the heavy pollution from its neighbors, Aburn said. “I am challenging the EPA over their failure to implement good neighbor SIPs [state implementation plans] in upwind states,” he said.
The EPA is continuing to revise preliminarily modeling that shows which states are contributing to transport and will be releasing new modeling information later this summer for use by the states, according to Richard Ruvo, chief of the air programs branch for Region 2 of the EPA.
EPA, States Behind on Addressing Standard
“Admittedly the EPA and some of the states are behind schedule in addressing the 2008 ozone air quality standard as well as the good neighbor provisions that go along with that standard,” Ruvo said at the hearing. “Transport has been a challenge to the EPA and the states for many years and we're not at the point yet where we can say what would be an approvable state implementation plan.”
As part of a regional approach, states also should work harder to find regional solutions to emissions from trains, planes, ships and automobiles, which account for the majority of ozone emissions, the meeting participants said.
Research from Maryland's Air and Radiation Management Administration projects that by 2018, two-thirds of ozone emissions in regions like Baltimore and Connecticut will come from “mobile source vehicles,” and in large cities like Chicago and Atlanta, the proportion could reach as high as 75 percent, Aburn told Bloomberg BNA.
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Denham: Nominate Permanent FRA, PHMSA Heads
Apr 15, 2015 | BNA Daily Environment Report
The Obama administration should nominate permanent heads of two Transportation Department offices, Rep. Jeff Denham (R-Calif.) said during a subcommittee hearing April 14. Both the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration are being led by acting administrators, who are allowed to serve for only 210 days under the Federal Vacancies Reform Act of 1998 (Pub. L. No. 105-277). The deadline is coming up in May for acting PHMSA Administrator Timothy Butters, who began serving in October, and in August for acting FRA Administrator Sarah Feinberg, who began serving in January. Neither has been vetted by the White House for nomination, the acting administrators told the committee. “We need certainty in this leadership,” said Denham, who chairs the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials.
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Lifting Crude Export Ban Would Exacerbate Climate Change, Double Trains Carrying Oil
Apr 15, 2015 | BNA Daily Environment Report
By Ari Natter
Lifting the 40-year-old ban on the export of crude oil would exacerbate climate change and could double the number of trains transporting crude by rail, a House panel was told April 14.
Changing the law, which is a goal of oil producers such as ConocoPhillips, would raise the price drillers receive for their product, resulting in a “hazardous increase in U.S. oil production” of as much as 500,000 barrels a day, Stephen M. Kretzmann, executive director of the Washington-based environmental group Oil Change International, told a House Foreign Affairs subcommittee.
“The crude oil export ban was certainly not designed to play a role in climate change mitigation or to reduce the likelihood of a mile-long freight train full of crude oil destroying a community in America's heart land,” Kretzmann told the Subcommittee on Terrorism, Nonproliferation and Trade. “However, it plays an important role in regulating an industry that currently has few limits placed upon it.”
Ending the trade prohibition also will likely lead to an increase in U.S. greenhouse gas emissions, Kretzmann said in his written testimony. Every additional barrel of oil produced and consumed emits 550 kilograms to 850 kg of carbon dioxide equivalent, depending on the type of oil, he said.
“Any policy change that could result in a net increase in global greenhouse emissions needs to be evaluated in terms of its climate impact,” he said.
Standing Behind Policy
Kretzmann's testimony before the subcommittee came during a hearing on legislation (H.R. 702) by Rep. Joe Barton (R-Texas) that would repeal the ban and bar the federal government from imposing or enforcing any similar restriction.
“By lifting the crude oil export ban we can decrease gas prices, stabilize the global oil market, improve the U.S. economy and strengthen America's relationships abroad,” said Rep. Ted Poe (R-Texas), the subcommittee's chair and a co-sponsor of the bill. “The U.S. has been a longtime advocate of free and open markets and now it is time to stand behind that policy by allowing exports of U.S. crude oil.”
Poe's subcommittee canceled a March 25 subcommittee markup on the bill, which would have taken place before the subcommittee held a legislative hearing on the bill and before the House Energy and Commerce Committee, which also has jurisdiction over the bill, marked up the legislation.
A Poe spokeswoman didn't respond to a request for comment.
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Impact of Cutting Crude-by-Rail Volatility, Fate of Resulting Product Remain Unclear
Apr 15, 2015 | BNA Daily Environment Report
By Rachel Leven
As Congress and others move to address the volatility of crude oil in crude-by-rail safety efforts, the safety impact of these steps has yet to be determined, and other issues have emerged, officials told Bloomberg BNA in a series of interviews.
Industry and environmental groups are at opposite ends of the spectrum when it comes to the safety value of stabilizing oil before shipping it by rail, and federal regulators are still working to determine how volatility plays into the risks of such shipments. At least one federal agency, the National Transportation Safety Board, has come to the conclusion that volatility isn't a key factor in determining the “magnitude of the catastrophe” from a derailment of a train carrying crude oil.
Federal regulators and industry also are looking past a possible stabilization requirement and considering how to manage the volatile hydrocarbons that would be removed from the crude oil. Industry would face challenges in economically and safely managing and transporting the hydrocarbons, an energy and petroleum trade group representative said.
“You don't need the product that's the result of the stabilization up there,” Charlie Drevna, president of the American Fuel & Petrochemical Manufacturers, said. “But then you'll have all of this product and then you have to ship it by pipeline, but there's no pipeline. So you have to ship by rail.”
Increased domestic production of crude oil and lack of pipeline infrastructure have pushed significantly more oil to rail transport. As that practice has increased, so has the frequency of those derailments. These derailments have led to property damage, threatened drinking water supplies and, in some instances, led to human deaths.
Stabilizing crude oil—or stripping the crude of certain light hydrocarbons to lower the Reid vapor pressure—prior to shipping it by rail has recently become a central part of the congressional and nationwide debate regarding improving crude-by-rail safety. Two bills have been introduced that would set or require the Pipeline and Hazardous Materials Safety Administration to set requirements for volatility of crude oil before it can be shipped by rail, and North Dakota has set its own standard that took effect April 1.
Importance of Volatility
Many factors are still being studied regarding the volatility of crude oil, especially from the Bakken region. For one federal safety board, however, volatility of crude isn't a focus at the moment, despite the board's advocacy and interest in the crude-by-rail safety issue.
Volatility isn't one of the “key issues” that determine the scale of an incident resulting from a crude oil train derailment, Christopher Hart, the chairman of the NTSB, told Bloomberg BNA.
The energy of the impact of the derailment—meaning the speed at which a train is moving—and how many cars are ruptured are the issues the board sees as most significantly affecting the size of an incident, Hart said.
PHMSA is considering volatility as a factor in these accidents, Timothy Butters, the acting PHMSA administrator, told Bloomberg BNA. The agency is still working with the Energy Department to better understand how it contributes to risk and to get a “better scientific base for” what any given volatility requirement or number would mean, he said.
“We clearly are looking at volatility issues,” Butters told Bloomberg BNA. “It's all part of this … everything's on the table, and the chemical and physical properties of the product are all part of that conversation.”
Industry, Environment Takes
Meanwhile, Drevna said that a slight reduction in Reid vapor pressure wouldn't be a factor in the fires resulting from the derailments. For example, reducing the Reid vapor pressure from 16.7 pounds per square inch (psi), which was the highest his group identified in a previous AFPM study, to 9.5 psi, the number included in a bill (H.R. 1679) sponsored by Rep. John Garamendi (D-Calif.), would constitute a slight reduction, Drevna said.
“When you have a train carrying crude oil that derails and there's hot metal rubbing against hot metal and there's a breach, then undoubtedly you're going to have a fire,” Drevna said.
However, several members of Congress have emphasized in letters to Butters over the past few months the importance of including volatility requirements in a comprehensive crude-by-rail safety approach. Both Garamendi and Sen. Maria Cantwell (D-Wash.) addressed the issue in their bills, H.R. 1679 and S. 859.
And environmental advocates have said a rule issued by North Dakota, even though it addressed volatility, set the Reid vapor pressure of 13.7 psi too high.
“Any standard that you put in place has got to be low enough that it makes a difference, not something that sort of looks like we've done something,” Kristen Boyles, an attorney for Earthjustice, told Bloomberg BNA. “It has to be strict enough to actually reduce risk.”
Energy Infrastructure
But implementing a volatility requirement for crude oil would be far from the last step, Butters and Drevna said. One has to consider how the product that is stripped from the crude oil would be used.
Drevna said the “light ends” that are stripped from the crude oil have value beyond the Bakken region, a fact that Garamendi agreed with. Garamendi told Bloomberg BNA these products, such as butane and propane, could be captured and sold. They would be transported by rail, he said.
“They're in very strong tank cars that have been modified 20 years ago to transport those materials today,” Garamendi said. “It is being done today.”
However, adding the tank cars carrying these products would increase rail traffic and therefore add risks to shipping by rail, Drevna said. Another option for getting rid of this product is flaring, but that releases greenhouse gases, he said.
Butters said that “in the Texas oil patch” these products—natural gas liquids—are used as a fuel “to operate their processes down there.”
“We've got a different situation up in the Bakken, but all of that has to be looked at,” Butters said, emphasizing the importance of science in these decisions. “The role of volatility we clearly need to look at.”
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Hearing Amounts to Venting Session Over Slow Pace of Rulemakings
Apr 15, 2015 | E&E Daily News
By Sean Reilly
Top Transportation Department regulators faced a bipartisan venting of congressional frustration yesterday over the slow pace of rulemakings both to strengthen pipeline safety and standards for railroad tank cars used to ship crude oil.
"Four years," Rep. Jeff Denham (R-Calif.), chairman of the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials, said near the end of an almost 2½-hour hearing. "Why is it taking four years to come up with a new rule?"
The short answer: It's complicated.
"We're bound by the process that we have to follow," said Timothy Butters, acting head of the Pipeline and Hazardous Materials Safety Administration (PHMSA). The proposed tank car regulations, for example, have drawn 30,000 comments and affect railroad operations and other issues, Butters said. "To put that final rule together is complex."
Under the status quo, "we do not have the freedom to simply conceive of a new safety regulation and allow it to become the law of the land," Sarah Feinberg, acting Federal Railroad Administration chief, said earlier in the hearing. Not only must the agency get feedback from both the public and industry, it has to buttress proposed rules with a "rigorous" economic analysis that weighs both the potential benefits and costs, she said.
Those explanations did not mollify Rep. Michael Capuano (D-Mass.), the subcommittee's ranking member, who said he was amazed at the number of issues on the table and at one point mused whether PHMSA -- which is coming up for reauthorization -- should be replaced with "something new."
The hearing produced no new information on the status of the draft tank car standards, which Feinberg said are still under review by the White House Office of Management and Budget, but should become final in the "coming weeks." Those proposed standards, which date back to a 2011 petition from the railroad industry, are now getting urgent attention following several fiery derailments in the United States and Canada involving freight trains carrying crude oil from North Dakota's Bakken formation.
The hearing also covered a gamut of rulemakings mandated by the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011 and the Moving Ahead for Progress in the 21st Century Act (MAP-21) signed in 2012. Of 72 changes required by the two laws, fewer than half are complete, according to a T&I staff background paper.
Among the rulemakings that are still hanging are those to require automatic and remote-controlled shutoff valves for new transmission pipelines and leak-detection systems for hazardous liquid pipelines.
"It is clear to me that PHMSA is a toothless tiger," Rep. Jackie Speier (D-Calif.) told the subcommittee as she spoke as a witness criticizing the agency for moving slowly to close a loophole affecting older pipelines. Speier's district in the San Francisco Bay Area includes the city of San Bruno, the scene of a 2010 pipeline explosion that killed eight people and demolished more than three dozen homes.
Feinberg has been in her current post for just three months; Butters, since last October. In their testimony, they touted generally improving safety records within their respective industries but agreed that more should be done. Denham praised both for their accessibility, specifying that his complaint is with the Obama administration.
Also testifying was Christopher Hart, chairman of the National Transportation Safety Board. In response to a question from Capuano, Hart said that regulation is needed but suggested that cooperation across government and industry lines is even more important to improving safety.
Based on other industries' experience, Hart said "what we find works best is not just push by the regulator, but everybody collaborating to work together toward a common goal."
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