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(ACC Mentioned) Phaseout Urged for Compound Used to Resist Stains, Water
May 1, 2015 | E&E - Greenwire
By Sam Pearson
A generation of chemicals meant to replace a class of compounds being phased out over concerns about their harmful properties could cause its own set of problems, according to a statement signed by more than 200 scientists. -
Procter & Gamble Receives an “F” in Chemical Transparency
May 1, 2015 | Center for Effective Government
By Amanda Frank
“Eco-friendly.” “Healthy.” “Responsible.” These are just a few of the labels used on household cleaning products to make them appear safe for consumers. -
Clean Power Plan Challenges May Hinge on State Defiance, not Congressional Action
May 1, 2015 | E&E - Climatewire
By Emily Holden
Legislative strategies to take down U.S. EPA's Clean Power Plan face "significant political obstacles," and efforts to undercut the rule may depend on states refusing to comply, according to a lawyer for a key Republican U.S. senator. -
Six States Appeal Settlement Pact Ordering EPA To Issue SO2 Designations
May 1, 2015 | InsideEPA
By Lee Logan
A group of six states led by North Dakota is appealing to an appellate court an EPA settlement agreement with environmental groups requiring the agency to make long-overdue designations by 2020 on which areas are attaining or exceeding the agency's sulfur dioxide (SO2) air quality standard. -
Advocates, Industry Find New Faults In EPA’s Revised Published Ash Rule
May 1, 2015 | InsideEPA
By David LaRoss
Environmentalists and coal industry officials are criticizing EPA’s final coal ash disposal rule after the agency made changes between issuing the rule in December and publishing it this month, with advocates faulting revisions allowing some ash facilities violating the rule to stay open rather than shutter and industry attacking other “vague” terminology. -
Duke Energy Says State Enforcement Preempts Advocates’ CWA Ash Suits
May 1, 2015 | InsideEPA
By David LaRoss
Duke Energy is asking a federal district court to reject environmentalists’ Clean Water Act (CWA) enforcement suits claiming water harms from the 2014 spill of coal ash from the company’s impoundments into North Carolina’s Dan River, arguing that state regulators pre-empted the advocates by filing their own enforcement cases. -
Countering the Cynical Messaging around the Clean Power Plan
May 1, 2015 | Natural Resources Defense Council
By Katharine McCormick
Low-income people and those on fixed-incomes could benefit hugely from the Clean Power Plan, the U.S. Environmental Protection Agency's proposal to reduce the dangerous carbon pollution from our nation's power plants. -
Everyone has the Right to Breathe Healthy Air
May 1, 2015 | The Hill - Congress Blog
By Harold P. Wimmer
More than 4 in 10 people in the United States live in counties that have air with unhealthy levels of either ozone or particle pollution. -
GOP Senators Question BLM About Need for Fracking Rule
May 1, 2015 | E&E - Energywire
By Ellen M. Gilmer
Republican senators yesterday took aim at the Obama administration for the Bureau of Land Management's newly finalized rules for drilling and hydraulic fracturing on public lands. -
House Passes 2016 Energy Spending Bill
May 1, 2015 | The Hill - Floor Action
By Cristina Marcos
The House passed its second 2016 appropriations bill on Friday, this time to fund the Department of Energy and water infrastructure projects. -
Republican's Bill Would Gut Agency
May 1, 2015 | E&E - Greenwire
By Kevin Bogardus
Rep. Sam Johnson (R-Texas) has proposed legislation that would strip U.S. EPA down to its bare bones. -
E&E Daily's Snider Talks Senate, House Moves to Derail Obama Rule
May 1, 2015 | E&E TV
A bipartisan group of senators this week introduced a bill that would require U.S. EPA and the Army Corps of Engineers to start from scratch on the Obama administration's controversial water rule. -
House Approves Energy and Water Spending Bill
May 1, 2015 | E&E - Greenwire
By Daniel Bush,
The House today passed 240-177 its $34.5 billion energy and water spending bill, following two days of debate that included votes to kill the Obama administration's water rule, block the enforcement of a light bulb efficiency regulation and provide funding to reopen the Yucca Mountain nuclear waste repository site. -
White House Threatens Veto Of 'Waters' Bills
Apr 30, 2015 | InsideEPA
President Obama is threatening to veto two House measures seeking to block the administration’s Clean Water Act (CWA) jurisdiction rule, saying that a bill to require a re-proposal of the policy after extensive consultation would be duplicative and impose unnecessary burdens, even as senators just unveiled similar bipartisan legislation. -
Senators Propose Fee for Use of Older Tank Cars
May 1, 2015 | Progressive Railroading
Seven U.S. senators yesterday introduced legislation that they say would speed up the phasing out of older tank cars used to transport crude oil by rail. -
DOT Issues Final Rules on Flammable Oil Trains
May 1, 2015 | PoliticoPro
By Elana Schor
The Obama administration imposed tougher safety regulations Friday for trains carrying crude oil, responding to growing alarm about a series of fiery derailments that killed dozens of people in a small Canadian town and have rattled U.S. communities from North Dakota to Alabama to Virginia. -
Obama Cracks Down on Oil Trains
May 1, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration on Friday unveiled a sweeping set of reforms to rules regarding the transportation of crude oil by rail in the wake of numerous high-profile disasters. -
Stung By Derailments, U.S. and Canada Overhaul Crude-By-Rail Regs
May 1, 2015 | E&E - Greenwire
By Blake Sobczak
U.S. and Canadian officials unveiled regulations today that would effectively overhaul the entire fleet of U.S. crude oil tank cars in five years.
Industry and Association News - There are no clips to report at this time.
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Energy and Environment News
Transportation News
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(ACC Mentioned) Phaseout Urged for Compound Used to Resist Stains, Water
May 1, 2015 | E&E - Greenwire
By Sam Pearson
A generation of chemicals meant to replace a class of compounds being phased out over concerns about their harmful properties could cause its own set of problems, according to a statement signed by more than 200 scientists.
The document, called the "Madrid Statement on Highly Fluorinated Chemicals" and published today in the journal Environmental Health Perspectives, calls for an international phaseout of the substances, known as poly- and perfluoroalkyl substances, or PFASs, which are used to make products stain and water resistant, among other applications.
The chemicals have been used as a replacement for long-chain PFCs, including perfluorooctanoic acid, PFOA or C8, which was the subject of litigation involving a DuPont Co. plant in Parkersburg, W.Va., when it was found to be contaminating area drinking water.
In a response from the FluoroCouncil -- an arm of the American Chemistry Council that represents manufacturers of perfluorinated chemicals -- that was also published in the journal, the group said the call for action was overbroad and unnecessary.
The FluoroCouncil said it "could support many of the policy recommendations outlined in the Madrid Statement, if they were limited to long-chain PFASs. The Madrid Statement policy recommendations are, however, applied to all PFAS substances, even though there is substantial scientific data supporting the conclusion that short-chain PFASs pose no significant risk and deliver important societal benefits."
U.S. EPA has worked to remove long-chain PFCs, including through an action plan it put forward in 2009. In addition, companies have worked to voluntarily shift away from these chemicals, while EPA has proposed new regulations requiring that firms notify it if they begin new uses of the compounds. The agency is accepting public comments on its proposal until next month. Under the voluntary proposal, the FluoroCouncil expects its member companies to stop using the long-chain substances by the end of the year.
According to EPA, the long-chain PFCs are toxic to humans, wildlife and the environment, and while the chemicals' effects have not been observed in broad human populations, "it can reasonably be anticipated that continued exposure could increase body burdens to levels that would result in adverse outcomes."
Writing in Environmental Health Perspectives, the scientists argued that the chemicals replacing long-chain PFCs are too similar and thus are likely to cause the same harmful effects. The scientists compared the replacement products to the substitution of hydrofluorocarbons, also known as HFCs, for chlorofluorocarbons, or CFCs, after the adoption of the Montreal Protocol to fight ozone depletion. Those chemicals have created their own set of problems, as scientists have learned they are especially potent contributors to global climate change (ClimateWire, May 19, 2014).
Although some of the replacements for long-chain PFCs "seem to be less bioaccumulative, they are still as environmentally persistent as long-chain substances or have persistent degradation products," the researchers wrote. "Thus, a switch to short-chain and other fluorinated alternatives may not reduce the amounts of PFASs in the environment. In addition, because some of the shorter-chain PFASs are less effective, larger quantities may be needed to provide the same performance."
Ultimately, companies needed to consider whether the chemicals were really necessary, Arlene Blum, a lead author of the statement and the executive director of the Green Science Policy Institute, said in a statement.
In an editorial that accompanied the paper, Linda Birnbaum, the director of the National Institute for Environmental Health Sciences and the National Toxicology Program, branches of the National Institutes of Health, and Philippe Grandjean, a professor at Harvard University's School of Public Health, said the document "defines a roadmap for scientists, governments, product manufacturers, purchasing organizations, and consumers to work together to limit the production and use of PFASs globally and to develop safer alternatives."
While the chemical industry has generally supported this effort, the industry does not believe that similar actions are needed for the broader group of perfluorinated chemicals.
It's not likely that the replacement substances will harm human health or the environment because they "are eliminated more rapidly from the body and are less toxic than long-chain substances," wrote Jessica Bowman of the FluoroCouncil.
Separately, the Environmental Working Group released a report arguing that few chemicals used by DuPont as a substitution for C8 have been tested for safety under the Toxic Substances Control Act of 1976. The group accused DuPont of skirting its obligations under a $10.25 million settlement it reached with EPA in 2005.
The company's actions meant that "families have no way of knowing if they are being exposed to these chemicals in their own homes," Bill Walker, an EWG consultant and a co-author of the report, said in a statement.
DuPont spokeswoman Janet Smith said the Madrid Statement "does not reflect a true consideration of the available data" and said the company had made progress moving away from the chemicals in question.
"DuPont and other industry members have been working for more than a decade, with oversight from regulators, to introduce alternatives to long-chain perfluorinated compounds such as PFOA," Smith said. "Significant data has been developed, indicating that these alternatives have improved health and environmental profiles. DuPont is confident that our alternative chemistries can be used safely -- they are well characterized, and the data has been used to register them with environmental agencies around the world."
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Procter & Gamble Receives an “F” in Chemical Transparency
May 1, 2015 | Center for Effective Government
By Amanda Frank
“Eco-friendly.” “Healthy.” “Responsible.” These are just a few of the labels used on household cleaning products to make them appear safe for consumers. But no one oversees how these terms are used or what they really mean for consumers. This becomes readily apparent when you scrutinize the ingredients on cleaning product labels to try to determine how safe and "green" they really are. One company – Procter & Gamble – is so bad at disclosing useful chemical information to consumers that it recently received an "F" from a national environmental health group.
Companies are failing to disclose ingredients and are potentially putting their customers – especially women – at risk from toxic exposure.
In the average household, women still do more than 70 percent of housework, meaning they face greater exposure to chemicals in cleaning products than their male partners. And women can pass toxic chemicals they are exposed to onto their children during pregnancy and breastfeeding. So we need to be particularly careful of the products we buy and use.
Women’s Voices for the Earth graded four leading manufacturers of household cleaning products based on their disclosure of product ingredients and their processes for assessing chemical safety. Here are the results:
The Clorox Company
SC Johnson & Son, Inc.
RB (formally Reckitt Benckiser)
Procter & Gamble
Sample Brands
Clorox®, Pine-sol®, Formual 409®
Pledge®, Windex®, Shout®
Lysol®, OLD ENGLISH®, EASY-OFF®
Tide®, Mr. Clean®, Febreze®
Overall Grade
B-
B-
C
F
Proctor & Gamble received a failing grade. Three other companies (The Clorox Company, SC Johnson & Son, and RB) received average scores but still have substantial room for improvement. More details on the scoring are available in the group's full report.
Companies that make household cleaning products are not required by federal law to disclose their ingredients.
Most cleaning products lack ingredient labels like those found on food or cosmetics. Ingredient labels are essential for consumers with allergies or those looking to avoid certain harmful chemicals.
Companies are increasingly responding to consumer pressure to make product information available online. But many, including Proctor & Gamble, still don't disclose the identity of chemical fragrances in their products. Furthermore, posting ingredients online (rather than on a product label) poses an unnecessary hurdle to accessing this information when shopping, and it doesn’t help people who lack Internet access.
None of the four companies are transparent about their toxic chemical screening processes.
In the absence of strong federal chemical safeguards, companies are often left to “self-regulate” and do their own chemical safety testing. Unfortunately, the four companies that Women's Voices examined are not being fully transparent about how they test the safety of their products.
None of the companies reveal the criteria used when screening chemicals for potential hazards. Because of this, consumers have no ability to compare screening processes among companies and no way to reward the ones that most stringently evaluate possible risks.
These companies still use chemicals of concern that are hazardous to women’s health.
Women’s Voices found several chemicals in cleaning products that scientific studies have identified as hazardous to women’s health. All four companies have made progress in removing some of these chemicals from their products. For example, none of them currently use phthalates, a class of chemicals that are potentially cancer-causing.
However, each company continues to use other hazardous chemicals, including ammonium quaternary compounds, a disinfectant which poses particular risks to pregnant women and developing fetuses.
Companies can and should take immediate steps to improve public access to information and to safeguard the health of their customers.
To improve disclosure and help their customers make informed choices about the products they use in their homes, companies can list specific ingredients on product labels, including each chemical that goes into product scents and fragrances. Companies can also provide information on their chemical screening processes and use safer chemicals in their products.
According to Women's Voices, annual sales of green cleaning products more than doubled between 2007 and 2011, so companies who do the right thing may also find their market shares increasing. Customers are eager to support companies that use non-toxic ingredients and make products that are better for our health and the environment.
Meaningful progress requires both company leadership and stronger federal chemical safeguards.
Alarmingly, our nation’s primary chemical safety law does not require companies or agencies to screen chemicals before they enter the marketplace. The Toxic Substances Control Act of 1976 gave a free pass to over 60,000 chemicals that were already in wide use when the law was enacted. Today, over 84,000 chemicals are in commercial use yet the U.S. Environmental Protection Agency has required testing for fewer than 300 chemicals and banned or restricted only nine.
Congress is currently working on revisions to the flawed law, but most of the current bills do little to advance chemical safety reform and would end up doing more harm than good by overriding state authority to restrict dangerous chemicals. We can and must do better.
In the meantime, you can take steps to reduce your risk from untested chemicals.
Women’s Voices for the Earth provides useful resources for avoiding toxic chemicals in cleaning supplies. These include results from independent laboratory testing of popular products and lists of companies that disclose all product ingredients. They even have recipes for making cleaning products at home using everyday ingredients.
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Clean Power Plan Challenges May Hinge on State Defiance, not Congressional Action
May 1, 2015 | E&E - Climatewire
By Emily Holden
Legislative strategies to take down U.S. EPA's Clean Power Plan face "significant political obstacles," and efforts to undercut the rule may depend on states refusing to comply, according to a lawyer for a key Republican U.S. senator.
Mandy Gunasekara, counsel for Sen. James Inhofe (R-Okla.) -- chairman of the Environment and Public Works Committee -- said congressional opponents of the draft rule realize they likely don't have the votes to overcome a presidential veto of legislation challenging the regulation.
"We don't necessarily have a veto-proof majority, so any of the legislative responses that we send up will face significant political obstacles," Gunasekara said yesterday during a panel discussion at an American Bar Association conference. "Ultimately, what we'll focus on and seek out is what kind of actions states will take, because that's what we believe it will ultimately come down to."
Earlier this week, Oklahoma Gov. Mary Fallin (R) issued an executive order preventing her state from submitting a plan to reduce power-sector carbon dioxide emissions under the rule (EnergyWire, April 30).
Senate Majority Leader Mitch McConnell (R-Ky.) has been vocally urging state officials to refuse to comply with the regulation, which asks states to submit plans for reducing nationwide power-sector carbon dioxide emissions 30 percent below 2005 levels by 2030.
Fifteen states are involved in an early legal challenge to the Clean Power Plan, and more seem ready to sue after the rule is finalized this summer. But many states have said that although they disagree with the regulation, they are working diligently to prepare a plan because they don't want to get stuck with EPA's federal version (ClimateWire, April 14).A GOP plan where 'everything's on the table'
EPA is developing a draft federal implementation plan to impose on states that refuse to write their own proposals. Gunasekara said after the event that EPA may not have authority to force states to adhere to a federal plan, especially if that plan includes systemwide carbon-cutting measures.
The draft Clean Power Plan calculated state goals by determining how much each state could use four "building blocks": improving coal plant efficiency, increasing natural gas use, developing renewable power and cutting power use. Critics say EPA may only have legal leeway to include plant-specific requirements in a federal implementation plan.
Despite roadblocks, Gunasekara said Republicans in Congress are committed to pursuing several legislative options. One strategy is to allow states to opt out of the regulation if it would cause economic harm or increase electricity prices. Another approach would be to pass legislation to stall the rule's deadlines until the courts decide whether the plan is legal.
"We won't have a clear idea of where EPA is arguably within their delegated authority and where they aren't for many, many years," Gunasekara said.
House Republican Ed Whitfield, of Kentucky, has sponsored a bill that includes both options, and the lawmaker said he hopes it will see floor action next month (E&ENews PM, April 30).
The backup plan, Gunasekara said, is to use the Congressional Review Act to nix the rule.
Gunasekara said while Inhofe supports the "just say no" approach for states, "everything's on the table at this point."
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Six States Appeal Settlement Pact Ordering EPA To Issue SO2 Designations
May 1, 2015 | InsideEPA
By Lee Logan
A group of six states led by North Dakota is appealing to an appellate court an EPA settlement agreement with environmental groups requiring the agency to make long-overdue designations by 2020 on which areas are attaining or exceeding the agency's sulfur dioxide (SO2) air quality standard.
EPA has only designated 29 areas in 16 states as either in attainment or nonattainment for the SO2 national ambient air quality standard (NAAQS). This delay prompted advocates and some states to sue, charging that the agency missed a 2012 deadline for the remaining designations.
The settlement, entered March 2 by the U.S. District Court for the Northern District of California, creates a three-stage process for finalizing the remaining designations, with deadlines ranging from July 2016 through December 2020.
But the group of states -- North Dakota, Arizona, Kentucky, Nevada, Louisiana and Texas -- filed an April 30 noticeappealing the settlement to the U.S. Court of Appeals for the 9th Circuit.
The notice of appeal does not elaborate on the reasons why the states seek to overturn the deadline pact. But a successful appeal could potentially benefit the states by requiring quick designations in areas that do not have sufficient monitoring networks to show nonattainment with the SO2 standard, placing them into “unclassifiable” status that would avoid a “nonattainment” designation.
Shortly after the settlement was entered by the district court, EPA moved to implement the court-ordered deadlines. In a March 20 policy memo, an EPA air quality official outlined the agency's policy on the issue. The agency separately notified 28 states informing them of dozens of areas that might not be meeting the 2010 1-hour standard for SO2, which is set at 75 parts per billion.
Despite tightening the standard in 2010, the process of designating areas meeting the standard and those in nonattainment has been severely delayed amid fighting among the states, EPA and environmentalists over the agency's policy regarding air quality modeling and monitoring.
A lack of air quality monitors across the country that could capture violations of the new NAAQS means that EPA initially established a process for designation that relied heavily on air quality modeling. When some states objected that the computer models use inherently conservative assumptions that might produce unwarranted nonattainment designations, EPA revised its policy to allow use of newly established monitoring networks instead.
To allow time for states to set up new monitoring networks, EPA extended the designation process out until 2020 for those areas relying on new monitoring -- far beyond a Clean Air Act-mandated deadline for EPA to complete designations by June 2012. EPA issued designations for the 29 areas in 16 states in August 2013.
Under the court-approved settlement, EPA must issue the next designations by July 2, 2016, to include areas with newly monitored violations of the NAAQS and sources defined as "large."
"We recognize that the timeline for designations by July 2, 2016, does not provide for establishment and use of data from new ambient monitors. Therefore, we anticipate that in many areas the most reliable information for informing these designations will be based on source modeling," EPA writes in the recent policy memo.
EPA must complete the subsequent round of designations by Dec. 31, 2017, for remaining undesignated areas in which, by Jan. 1, 2017, states have not begun operating an appropriate SO2 monitoring network meeting EPA specifications. These specifications are outlined in an upcoming final monitoring and modeling rule. EPA proposed the rule in May last year, but has yet to finalize it. All remaining areas must be designated by December 31, 2020.
Related Litigation
Meanwhile, parties have filed final briefs in separate ongoing litigation that consolidates several challenges to individual area designations under EPA's initial round of SO2 designations.
For example, the Department of Justice argues in its April 24 final brief in Treasure State Resource Industry Association, et al. v. EPA, et al. that EPA's designations for areas in Montana and Michigan should be “reviewed deferentially,” and that the designations at issue were reasonable.
But industry groups in their final opening brief and their final reply brief argue that EPA relied on faulty data when designating Billings, MT, as nonattainment, and that the agency improperly excluded Monroe County, MI, which is home to a major coal-fired power plant, from a nonattainment area.
The litigation is pending before the U.S. Court of Appeals for the District of Columbia Circuit, though oral argument has not yet been scheduled.
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Advocates, Industry Find New Faults In EPA’s Revised Published Ash Rule
May 1, 2015 | InsideEPA
By David LaRoss
Environmentalists and coal industry officials are criticizing EPA’s final coal ash disposal rule after the agency made changes between issuing the rule in December and publishing it this month, with advocates faulting revisions allowing some ash facilities violating the rule to stay open rather than shutter and industry attacking other “vague” terminology.
A memo from EPA waste chief Mathy Stanislaus to agency Administrator Gina McCarthy dated March 18 describes the change, included in the version of the rule published in the April 17 Federal Register, as inserting language “inadvertently omitted” from the rule text released on EPA’s website Dec. 19. The long-delayed publication of the Resource Conservation & Recovery Act (RCRA) rule triggers a 90-day window to sue over the regulation.
Environmentalists had previously suggested that they might file suit because the rule regulates ash disposal as a RCRA subtitle D solid waste, rather than as a subtitle C hazardous waste that they say would have led to more-protective standards. They also fault EPA for not regulating shuttered “legacy” ash ponds at inactive utilities.
Following the final rule’s release late last year, industry groups welcomed the subtitle D designation and said it would be just as protective as a subtitle C rule. But industry officials expressed concern (/node/176971) with parts of the rule at that time, including that the rule could create a confusing dual track of regulation and enforcement.
Both sides now appear to have found fault with changes that the agency made to the rule since its issuance and prior to its publication in the Register, potentially creating further grounds for future litigation.
For example, the published version of EPA’s final coal ash disposal rule explicitly allows facilities that violate its standards to retrofit rather than close down, drawing ire from environmentalists.
The pre-publication rule said facilities that cause groundwater contamination must close, but Stanislaus says in the memo that that was an oversight because “The preamble is clear that such facilities have the option to retrofit or close the unit; however, the regulatory text does not explicitly provide for the retrofit option.”
But an environmentalist attorney called the change “another nod to industry” in a rule that advocates have claimed gives too much leeway to states and disposal facilities.
However, the attorney also praised a change that explicitly requires facilities to post groundwater and other monitoring data on publicly accessible websites as strengthening the rule’s disclosure mandates.
Vague Terms
Environmentalists have said the rule does not do enough to ensure older facilities will come into compliance, and continue to say the ash should be considered a hazardous waste under RCRA subtitle C.
Still, they have argued that the regulation is preferable to a bill House Republicans have floated, H.R. 1734, that would codify much of EPA’s rule but make some significant changes. Among the changes included in the draft bill are provisions giving states primary authority to craft and implement coal waste disposal programs, rather than EPA’s approach setting nationwide standards enforced through citizen suits.
H.R. 1734 cleared the House Energy & Commerce Committee in an April 15 vote with support from just two Democrats, signaling that a similar bill could face opposition in the Senate or a veto threat from the White House.
However, if the bill were to become law, it could potentially moot expected challenges to the rule from both industry and environmentalists. Such suits must be filed by July 16, since RCRA sets a 90-day deadline to sue over a final rule counting from the date of publication in the Register.
Industry attorneys in their commentary on the final revised version of the ash rule published in the Register are charging that EPA should have used the opportunity to define key thresholds for regulation in the disposal rule.
Among the terms that industry says that the agency has left vague are the level of ash “accumulation” that qualifies a facility as a surface impoundment, and what level of groundwater monitoring will satisfy the mandate for operators to “accurately represent” water quality.
The rule defines surface impoundments, in part, as those receiving “an accumulation” of ash without specifying a threshold where that requirement would be met. It also requires facilities to maintain enough groundwater monitoring wells to “accurately represent” background groundwater quality near the facility without detailing a statistical test for accurate representation.
Implementation Uncertainty
An April 17 blog post from the law firm Crowell Moring singles out the monitoring and “accumulation” language while also pointing to terms in enforcement provisions that the firm says are not clearly defined. Facilities that violate technical standards or release coal ash to groundwater are required to correct the failure “as soon as feasible,” while open facilities must “effectively minimize” dust from the waste.
“There is uncertainty over how to then implement the rule, partly because there are very vague standards set forth. . . . All of them are all subject to interpretation, and will likely arise in challenge,” attorney Joshua More said during an April 22 ash rule webinar hosted by Business Intelligence Online.
The Crowell Moring post both echoes More’s concerns over vagueness in the rule and raises the possibility that plaintiffs’ attorneys could cite it to justify “toxic tort” claims in state courts. In those claims, it says, individual plaintiffs could argue that exposure to chemicals from an ash impoundment led to illness or other injuries -- even if EPA or state regulators determined that the facility was in compliance.
“Plaintiffs could then argue that a violation of any of the rule’s provisions is negligence per se. Plaintiffs could also cite the rule as evidence that the disposal of CCR is an ultra-hazardous activity, giving rise to strict liability claims,” even though EPA declined to regulate ash as a “hazardous waste” as defined by RCRA, the post says.
“For example, EPA notes its concern with ‘hazardous’ and ‘toxic’ groundwater and dust discharges from [coal ash] facilities and the risk to human life, health and safety in the event of a ‘catastrophic’ surface impoundment structural failure . . . Violation of the rule thus puts [facility] owners or operators at risk not just of enforcement action and citizen suits, but of future tort claims as well,” the post says.
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Duke Energy Says State Enforcement Preempts Advocates’ CWA Ash Suits
May 1, 2015 | InsideEPA
By David LaRoss
Duke Energy is asking a federal district court to reject environmentalists’ Clean Water Act (CWA) enforcement suits claiming water harms from the 2014 spill of coal ash from the company’s impoundments into North Carolina’s Dan River, arguing that state regulators pre-empted the advocates by filing their own enforcement cases.
The suits are among several CWA actions that advocates are pursuing against coal ash facility operators, and critics of what they see as industry’s inadequate management of the ash say they will continue to pursue such suits even though EPA finalized a coal ash disposal rule. Environmentalists claim that the rule is too weak because it does not strictly regulate ash as hazardous waste, saying it underscores the need for citizen suits over facilities.
But in April 22 motions, Duke calls on judges in the U.S. District Courts for the Eastern and Middle Districts of North Carolina to either dismiss or stay separate cases filed by environmentalist groups seeking CWA penalties in connection with the Dan River ash spill.
To make its case, the company invokes the water law’s bar on citizen suits over a violation that a state or federal agency is “diligently prosecuting.”
“[W]hile Plaintiffs claim that different provisions of the permits are involved in this action, they point to no differences between the relief they seek in this Court and the relief they seek as parties in the [North Carolina state government] enforcement lawsuit. Thus, Plaintiffs’ action constitutes a misuse of the CWA’s citizen suit provision, is procedurally improper, and is based upon a fundamental misunderstanding of the CWA,” Duke says in its motion to dismiss the Eastern District case, Neuse Riverkeeper Foundation, Inc., et al. v. Duke.
In separate motions to stay the two cases, Duke argues that the court must at minimum wait for the result of the North Carolina Department of Environment and Natural Resources’ (DENR) enforcement case -- now pending in a state court -- before ruling on the environmentalists’ claims.
The company says a stay is proper both because because the remedies sought in the two cases could overlap or conflict, and because the environmentalist groups that brought the federal CWA suits are also participating in the state enforcement cases as intervenors.
To deny a stay “risks inconsistent outcomes, outcomes that could undermine the statutory and regulatory schemes that are being administered by two agencies (DENR and EPA) with significant interest and expertise in closure of these basins and the adjudication of these same issues in state court,” the firm says in its motion to stay the Middle District suit, Cape Fear River Watch, et al., v. Duke.
Mandated Cleanups
Environmentalist plaintiffs in the suits are asking courts to mandate cleanups at ash storage facilities in North Carolina that the environmentalists say were found to be leaking after the high-profile spill of 39,000 tons of coal ash from a fourth site into the state’s Dan River earlier this year.
The groups are hoping to win more stringent requirements for cleanup, including mandatory groundwater remediation, on Duke facilities at Cape Fear, Yadkin River and the Upper Neuse River than DENR would impose under a bill that state lawmakers crafted in response to the spill.
Those suits are in addition to a case filed by Sierra Club and other groups that have been active in the Dan River incident against Dominion Virginia Power March 19 in a Virginia federal district court that alleges CWA violations by Dominion Virginia Power. The groups are hoping to win court rulings in their favor that would set precedents for stricter cleanup mandates at old or failing ash impoundments.
The advocates say the violations at existing facilities highlight inadequate management of the sector by state regulators and make the case for strong federal oversight of any coal ash program.
EPA regulated ash as solid waste under subtitle D of the Resource Conservation & Recovery Act, rather than as hazardous waste under subtitle C as advocates favor.
House lawmakers are currently weighing legislation to revise key parts of the rule, which could include restricting citizen suits to some extent. Under EPA’s rule as finalized in December and recently published in the Federal Register, citizen groups or states can file suits against alleged violators of the rule in federal district court. The pending legislation would change it to a permit regime where states would set requirements and enforce those administratively through inspections and fines, only allowing citizen suits where facilities violate state rules.
Duke in its motions to dismiss the pending CWA citizen suits is arguing that the North Carolina CWA cases are not only procedurally improper but lack a cause of action under the water law, because they deal with alleged contamination of groundwater, which the CWA does not directly regulate.
While the environmentalists are claiming that the contaminated groundwater is being released to surface waters that are protected by the CWA, Duke counters in its motions to dismiss that those releases are not subject to citizen suits.
“Plaintiffs allege that pollutants have contaminated the groundwater . . . and that these pollutants are being released into waters through hydrologic connections. However, discharges from migration of groundwater are considered nonpoint source pollution, and there is no basis for a citizen suit for nonpoint discharges under the CWA,” says the company’s brief filed in the Neuse Riverkeeper Foundation suit.
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Countering the Cynical Messaging around the Clean Power Plan
May 1, 2015 | Natural Resources Defense Council
By Katharine McCormick
Low-income people and those on fixed-incomes could benefit hugely from the Clean Power Plan, the U.S. Environmental Protection Agency's proposal to reduce the dangerous carbon pollution from our nation's power plants. As states develop ways to meet the goals set by EPA, they can help their most vulnerable communities by transitioning to clean energy - energy efficiency and renewable energy like wind and solar - thereby lessening the health impacts of pollution, lowering electricity bills, and cleaning up the water and skies.
For instance, low-income and fixed-income households are unfairly impacted by bothlocal power plant pollution like mercury and sulfur, and by climate change which is being driven in part by those same power plants. By expanding energy efficiency and renewable energy, we can cut down on the need for dirty power generation that contaminates surrounding neighborhoods - usually neighborhoods of lower income. And, we can limit future climate change that leads to the risk of asthma, heart disease, cancer and other health harms.
Clean energy can also lower electricity bills. States committed to smarter energy use, which allows people to use less electricity to get the same or better performance, save their residents money. The areas of the country that experience the most energy poverty, where energy costs make up a greater portion of their income, are also the areas of the country with the fewest energy-saving policies in place.
Source: Kentucky Energy and Environment Cabinet; ACEEE
Energy efficiency and renewable energy save people money on their monthly electricity bills - EPA predicts that the changes wrought by the Clean Power Plan can put about $100 back in the pockets of every household every year - but they also end up reducing electricity bills for everyone on the whole grid by reducing our overall needs for electricity from power plants at the busiest hours of the day. This isn't peanuts: Illinois residents saved $150 million every year from these indirect benefits, in addition to about $1 billion saved directly from efficiency investments.
Let's talk jobs, too: clean energy creates a lot of them. Employment in the clean energy sector ranges from manufacturing to installation to maintenance, and has ripple effects as the savings on electricity are spent in other areas. According to Environmental Entrepreneurs, the clean energy sector created about 236,000 jobs from 2012 through 2014. And, according to an NRDC analysis, we could grow that and create 274,000 efficiency-related jobs in 2020 alone under the Clean Power Plan (and saving $37.4 billion for homes and businesses to divert to other needs and other sectors of the economy). These existing and potential jobs are local, cannot be outsourced, and pay above average yet are accessible to people without a college degree.
All of this means that we can reduce bills for people who can least afford them, all while cleaning up our air and water, limiting the impacts of climate change, making homes and buildings less wasteful and more comfortable, creating jobs, and improving the health of all Americans!
It's too bad that cynical messaging is trying to flip that on its ear to preserve polluter profits. A blog post at the Huffington Post was the latest in a flurry of disingenuous editorials criticizing the Clean Power Plan. That post, like others, posits that the middle class and working poor will be hit the hardest by the pollution limits, when in reality these households stand to benefit the most.
All of these editorials are factually wrong because that they all rely on the same tired, flawed analyses that have been debunked time and again, by our experts at NRDC as well as the fact-checkers at the Washington Post and others. These editorials aremorally wrong because they use seemingly trustworthy voices and pretend to care about the interests of low-income Americans while protecting the profits that come at low-income Americans' expense.
We agree that energy costs take up a lot of a low-income household's income. We agree that electricity is critical to human development. And we agree that people should be protected from rising electricity bills. Where we differ is that we recognize that energy efficiency and renewable energy promise a kind of empowerment, stability, and yes, affordability that would benefit low-income families.
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Everyone has the Right to Breathe Healthy Air
May 1, 2015 | The Hill - Congress Blog
By Harold P. Wimmer
More than 4 in 10 people in the United States live in counties that have air with unhealthy levels of either ozone or particle pollution. That threat to the health of millions of Americans is why, for the past 16 years, the American Lung Association has released our “State of the Air” report. This year’s report shows encouraging progress as well as troubling challenges. Both underscore the urgent need to defend the Clean Air Act, the core protection for the air we all breathe.
According to our 2015 nationwide report card, the best progress showed in the steady improvement in year-round particle pollution, thanks to the transition to cleaner diesel fuel and engines and steps taken to clean up power plants. Those steps also helped many cities reduce their ozone pollution. However, dangerous short-term spikes in particle pollution increased in many cities, with some cities showing their worst problems since the report began. And in some cities, ozone pollution got worse.
Why the spikes in particles and continued high-ozone days? Two words – climate change.
Climate change creates the ideal conditions for both particle and ozone pollution. Warmer weather increases the risk of ozone pollution and makes cleaning it up even more challenging. Rising temperatures also increase droughts, wildfires and other sources of particle pollution. While the report shows steady improvement, it also shows evidence that the changing climate will make it harder to keep up this trend and protect human health.
The challenges to healthy air are growing. In recent years, some members of Congress have made repeated attempts to roll back, weaken and block critically important clean air protections required under the Clean Air Act. The Clean Air Act is one of the most successful public health laws, having saved millions of lives since it was passed by a bipartisan Congress in 1970. Given that legacy, it is hard to understand by members of the current Congress are trying to undermine the very core of this critical public health law.
Most recently, these attacks have been focused on the proposed Clean Power Plan and ozone standards. The nation needs a strong Clean Power Plan to limit carbon pollution from power plants because carbon pollution worsens climate change, and climate change threatens public health. The too-often overlooked news is the Clean Power Plan would also reduce the health burden of air pollution in America, preventing up to 4,000 premature deaths and 100,000 asthma attacks in the first year these strong steps are in place.
The nation also needs an up-to-date ozone limit that follows the latest science in order to protect human health. Our current national standard for ozone pollution is out of date and too weak to protect our health. Strong standards will drive much-needed cleanup of ozone pollution across the nation, and give us accurate information about whether the air outside is safe to breathe.
Everyone has the right to breathe healthy air, especially the nearly 33 million people in the U.S. living with chronic lung diseases, like asthma and COPD. To protect their health as the Clean Air Act requires, the U.S. Environmental Protection Agency must adopt a strong final Clean Power Plan, as well establish a more protective ozone standard.
With such clear evidence that our fight for healthy air is not over, I urge all members of Congress to reject pressure from polluters to block or delay progress. Weakening our clean air protections will only lead to more unhealthy air days, asthma attacks and emergency room visits, or worse. Our communities deserve better.
Wimmer is national president and CEO of the American Lung Association.
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GOP Senators Question BLM About Need for Fracking Rule
May 1, 2015 | E&E - Energywire
By Ellen M. Gilmer
Republican senators yesterday took aim at the Obama administration for the Bureau of Land Management's newly finalized rules for drilling and hydraulic fracturing on public lands.
In a hearing before the Senate Energy and Natural Resources Subcommittee on Public Lands, Forests and Mining, Chairman John Barrasso (R-Wyo.) grilled BLM chief Neil Kornze on the need for the federal fracking rule, which will affect thousands of wells on public and American Indian lands and cost industry an estimated $11,000 per well. The hearing served as a platform for Republican senators to air their grievances about the rule, following a contentious five-year rulemaking process. The rule is set to take effect this summer.
Barrasso and Sen. Mike Lee (R-Utah) repeatedly asked the BLM director to identify states with inadequate fracking regulations. Kornze declined to name specific states but noted that while some have sophisticated regulations, more than half regulated by BLM have not updated their rules to keep up with the changing industry.
"That to me says that the BLM's final rule is redundant and unnecessary," Barrasso replied.
Bruce Baizel, director of Earthworks' energy program, cited studies from the Environmental Defense Fund and Resources for the Future that demonstrate varying standards among states for well casing, chemical disclosure and other aspects of oil production addressed by BLM's rule. The years-in-the-making regulation sets requirements for well construction, wastewater management and chemical disclosure.
"BLM's rule now can join with the more responsible states in moving toward a future where the oil and gas industry develops their resources in ways that reduce threats to public health and the environment and that respect the quality of life in local communities," Baizel said in prepared testimony.
The subpanel also heard from one of the industry organizations that sued BLM within an hour of the rule's unveiling. Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance, told the panel that the rule overlaps with existing state-level regulations and voluntary industry actions while adding significant delays and paperwork.
"Adding more federal regulation and red tape rarely does speed things up," she said. "We just don't see how this rule can be easily implemented ... when you've got additional engineering information that has to be gone through."
Wyoming Oil and Gas Conservation Commission Supervisor Mark Watson agreed, noting in testimony that he expects federal permitting delays and ultimately a slowdown in development of federal minerals in his state. With 4 million acres of oil- and gas-producing federal lands, Wyoming has the most acreage at stake. The state filed a lawsuit against BLM a week after the agency released the rule (EnergyWire, March 27).
BLM is currently in discussions with Wyoming officials concerning the rule's variance process, which allows states to manage regulation of certain aspects of the new rule if their standards are stronger.
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House Passes 2016 Energy Spending Bill
May 1, 2015 | The Hill - Floor Action
By Cristina Marcos
The House passed its second 2016 appropriations bill on Friday, this time to fund the Department of Energy and water infrastructure projects.
Passed 240-177 along party lines, the measure would provide $35.4 billion for the Army Corps of Engineers, Department of Energy and nuclear weapons programs.
The measure provides $1.2 billion more than the current enacted spending level, but $633 million less than what the Obama administration requested.
Friday's vote marked the second passage of a fiscal 2016 appropriations bill in as many days. The House passed its first 2016 spending bill of the year Thursday evening that would provide $77 billion for the Department of Veterans Affairs and military construction projects.
The bill would also support the Yucca Mountain nuclear repository and deny an Obama administration proposal for non-Yucca nuclear waste activities. In total, the measure provides $150 million for the Nuclear Waste Disposal Program. Members rejected by voice vote an amendment from Rep. Joe Heck (R-Nev.) to eliminate all funding in the bill for Yucca Mountain.
President Obama issued a veto threat against the legislation, warning it "drastically underfunds" energy programs.
The Obama administration also objected to a provision in the bill that prohibits the Army Corps of Engineers from enforcing its ban on guns at water resources development projects.
Lawmakers considered the legislation under a freewheeling process that allowed an unlimited number of amendments, with debate continuing past midnight into Friday morning.
The House adopted an amendment from Rep. Michael Burgess (R-Texas) late Thursday night that would prohibit the use of funds to enforce energy efficiency standards for incandescent light bulbs. The Texan likened the energy conservation measure to an issue of individual liberty.
"We should not be forcing these light bulbs on the American public," Burgess said. "The bottom line is the federal government has no business taking away the freedom of Americans to choose what bulbs to put in their homes."
But Democrats said that energy-efficient bulbs cost less in the long run.
"They are the same as the old bulbs, except they last longer, use less electricity and save consumers money," said Rep. Marcy Kaptur (D-Ohio).
The House also adopted, by voice vote, an amendment from Rep. Brian Babin (R-Texas) that would prohibit funds used for nuclear nonproliferation from going to Iran unless the country is required to stop pursuing and developing nuclear weapons.
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Republican's Bill Would Gut Agency
May 1, 2015 | E&E - Greenwire
By Kevin Bogardus
Rep. Sam Johnson (R-Texas) has proposed legislation that would strip U.S. EPA down to its bare bones.
Johnson introduced H.R. 2111, known as the "Wasteful EPA Programs Elimination Act of 2015," this week. The legislation would require EPA to sell or lease its underutilized properties; close all of its field offices; and cease funding for several agency programs, including those dealing with environmental justice, green infrastructure and regulating greenhouse gas emissions from power plants.
"As a fiscal conservative, I believe Washington should be respectful of taxpayers' dollars and live within its means," Johnson said in a statement. "American taxpayers certainly don't need to be paying for the EPA's empty and unused buildings and its wasteful programs. This bill does right by the hardworking folks in my district and across the country and is part of my ongoing effort to get our fiscal house in order."
The congressman cites an estimate from the Heritage Foundation that his bill would save $7.5 billion over 10 years.
EPA is one of congressional Republicans' favorite targets when it comes to budget cuts.
Nevertheless, the House Appropriations Committee's spending plan for the agency is less drastic than Johnson's bill. Announced last month, the committee's proposal would provide $30.17 billion to fund the Interior Department, the Forest Service and EPA, $246 million below current funding levels (E&E Daily, April 23).
House Appropriations Chairman Hal Rogers (R-Ky.) has said his goal is to have all 12 spending bills reach the House floor this year (E&E Daily, April 30).
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E&E Daily's Snider Talks Senate, House Moves to Derail Obama Rule
May 1, 2015 | E&E TV
A bipartisan group of senators this week introduced a bill that would require U.S. EPA and the Army Corps of Engineers to start from scratch on the Obama administration's controversial water rule. Does the upper chamber's legislation have enough traction to reach a veto-proof 67 votes? On today's The Cutting Edge, E&E Daily reporter Annie Snider, discusses prospects for the legislation and gives an update on the House's plans for a vote on its version of a bill on the water rule.Transcript
Monica Trauzzi: Welcome to The Cutting Edge. Things heat up in Congress over the Obama administration's controversial water rule, and E&E Daily's Annie Snider is here with all the details on the Hill's action. Annie, in the Senate this week we saw bipartisan legislation introduced that would require EPA and the Army Corps of Engineers to start from scratch and write a new rule. What're the details of the legislation, and who signed on at this point?
Annie Snider: Well, as you say, it is bipartisan legislation. It was introduced by Senator John Barrasso, Republican of Wyoming, and Senator Joe Donnelly, a Democrat from Indiana. Two other Democrats have signed on already, and there are some important Republicans signed on as well, Jim Inhofe, who's the chairman of the Senate Environment and Public Works Committee, which is the committee that this bill will go through, and Senate Majority Leader Mitch McConnell, who will obviously be key to getting the bill to the floor. The details of the legislation itself are a little bit complicated. Essentially what it does is set some criteria that any new rule that deals with what waters and wetlands get covered by the Clean Water Act would have to meet. So, some of that criteria is about process. It would require that during the development of any rule, state and local leaders get engaged up front, and it would, some of that criteria is about what kinds of waters can actually get covered. But the upshot of it is that the rule that the Obama administration has been working on, that sitting at OMB, going through the final stages of the review before getting finalized wouldn't meet this criteria, so essentially the Obama administration would have to go back and start over again.
Monica Trauzzi: So there's a lot of vote counting happening. Is there enough traction on this to get to 67 votes, which would be veto-proof?
Annie Snider: Yeah, that's the question right now. Before they can get to 67, they have to get to 60, and that's not guaranteed. There was a test vote on this issue during the vote-a-rama a couple months ago. That was an amendment introduced by John Barrasso that a lot of people saw as a referendum on this rule, but, like all amendments that come up during the vote-a-rama, it was kind of clunkily written, so it wasn't a direct parallel to this. But on that vote, they won essentially 60 votes. It was actually only 59, because Ted Cruz wasn't there, but they did get one big flip. That was Amy Klobuchar, but she has not committed to any particular legislation at this point. She said that she's going to look at everything individually. So, question is, will they get to 60? If they do, then it becomes a question of whether they've got 67. President Obama has issued veto threats on similar legislation. This is new, so we don't know about this specific bill, but previous efforts to try and derail the rulemaking have gotten veto threats, and so the question is, do they have a veto-proof majority? A lot of people think that's a heavy lift at this point, but Joe Donnelly yesterday was pretty enthusiastic. He said, "Sure, why not?"
Monica Trauzzi: All right. Well, on the other side of the Hill, we're expecting a vote in the House also on the water rule. What does their legislation look like, and what do we know about the timing of when we could see that vote happening?
Annie Snider: So, there's actually two bills on the House side right now relating to this. There's the Energy and Water Development spending bill that's on the floor right now and getting a vote, which contains a policy rider that would block the rule for a year. That's expected to pass. It's already in there. The other legislation is standalone legislation like the Senate bill is. It's a little bit more clear-cut, but it similarly required the current rule to be withdrawn and send it back through a consultation process with the states and stakeholders. That's expected to pass. Similar legislation passed last year. The question is more, how many votes will it get? So, folks who opposed the rule are hoping to firm up their majority, and folks who support the rule, last year they lost 35 Democrats, and they're hoping to cut those losses this time around.
Monica Trauzzi: So, sportsmen's groups are not happy with what they're seeing happening in the Senate. How much lobby and clout do these groups have with what ultimately happens to the rule?
Annie Snider: Yeah, so conservation groups and environmental groups, a lot of them have been very supportive of the current rulemaking and concerned about any efforts to kind of delay it or change it. They have tried to make sportsmen sort of the face of it. There are a lot of folks who have a stake in this, but the thinking there is that sportsmen's groups might have a little bit more pull with the kinds of moderates that are kind of at play in how the rulemaking moves forward. I mean, at this point the question is really grassroots, how well they can mobilize people to be calling offices, because folks who're sitting in the middle on this one, that means a lot to them.
Monica Trauzzi: And the Obama administration's response to all of this?
Annie Snider: Well, as you imagine, after spending two years on this rulemaking, they're not too happy about anything that could delay it at this point. Gina McCarthy has been making the tours, both talking to groups that are sort of not happy with what they've seen before but they see as winnable, so some of the agricultural groups. She's also been up on the Hill a lot recently, and her message has really been, "Look, we know that the rollout for this proposed rule was rocky, but we've heard your concerns." There was a public comment period, and they've also done a lot of outreach to lots of stakeholder groups, and so she says, "We've heard your concerns," and she's hinted strongly that there's going to be some key changes in the final rule, so she's telling everybody, "Wait. Let the process move forward. See what the final rule looks like before you do anything."
Monica Trauzzi: All right. We'll continue to follow your coverage. Thanks for coming on the show.
Annie Snider: Thank you.
Monica Trauzzi: More Cutting Edge coming next Friday. We'll see you then.
[End of Audio]
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House Approves Energy and Water Spending Bill
May 1, 2015 | E&E - Greenwire
By Daniel Bush,
The House today passed 240-177 its $34.5 billion energy and water spending bill, following two days of debate that included votes to kill the Obama administration's water rule, block the enforcement of a light bulb efficiency regulation and provide funding to reopen the Yucca Mountain nuclear waste repository site.
The fiscal 2016 appropriations measure, H.R. 2028, for the Department of Energy, the Army Corps of Engineers and other agencies won the support of 10 Democrats.
The legislation would provide $10.3 billion for DOE science and energy programs, a slight boost over fiscal 2015 enacted levels, with an increase for nuclear and fossil fuel research and cuts to clean energy programs. It would provide $5.6 billion to the Army Corps, $142 million higher than current spending levels.
Overall energy and water spending under the bill is $1.2 billion more than enacted levels, but still falls $633 million short of President Obama's budget request.
The Senate has yet to move forward with its energy and water spending bill, and the White House has threatened to veto the House measure. Still, House appropriators cheered its passage.
"This is a comprehensive, bipartisan bill that smartly funds our nation's energy programs and water infrastructure. This legislation affects every district, every county, and every state in the country -- facilitating American commerce, encouraging energy independence and innovation, cutting the Administration's red tape, and boosting our national security," House Appropriations Chairman Hal Rogers (R-Ky.) said in a statement after the vote.
Democrats slammed the bill for its cuts to renewable energy programs and increased funding for fossil fuels.
The measure is focused on "extraction and fossil fuels," said Rep. Raúl Grijalva of Arizona, the top Democrat on the House Natural Resources Committee, during a brief interview with Greenwire. "It's a convenient way to keep the dirty energy agenda alive."
Environmental groups also panned the bill, noting that it includes a $34 million boost for fossil fuel programs while slashing funding for renewable energy and efficiency programs by $279 million compared to current spending levels.
"Shoveling more of our tax dollars into the pockets of Exxon Mobil and the Koch brothers while defunding clean energy is climate denial at its worst," said Lukas Ross, an energy and climate campaigner at the advocacy group Friends of the Earth.
The marathon debate on the spending bill featured votes on dozens of amendments as lawmakers sought to kill controversial provisions in the bill, secure money for home-state projects and score political points over energy, water and climate policy.
Late Wednesday night, Rep. Don Beyer (D-Va.) proposed an amendment that would have removed a policy rider from the bill aimed at blocking the Army Corps from using funds to implement the "Waters of the United States" rule, which U.S. EPA is now finalizing to clarify which streams and wetlands fall under the protection of the Clean Water Act.
The amendment failed on a voice vote, giving Republicans momentum as they seek to block the water rule from taking effect. GOP lawmakers have also introduced a stand-alone bill to kill the water rule that is expected to pass the House later this month.
Lawmakers on Wednesday also rejected an amendment by Beyer to strike language from the bill that would bar the Obama administration from changing the definition of fill material under the Clean Water Act, a change that would limit mountaintop-removal mining and hardrock mining activities. The amendment failed by a voice vote.
As the debate dragged on last night, the House rejected an amendment by Rep. Raul Ruiz (D-Calif.) that would have bolstered federal drought relief programs in the West and an amendment by Rep. Eric Swalwell (D-Calif.) that would have increased funding for clean energy and energy efficiency programs. The final bill included $1.7 billion in EERE funding, far less than the $2.7 billion the White House was seeking (Greenwire, Feb. 2). Swalwell's amendment failed 219-202. The House rejected a similar amendment by the California lawmaker attached to last year's energy and water spending bill. Ruiz's amendment failed 249-177.
The House last night approved Rep. Michael Burgess' (R-Texas) perennial "light bulb rider," which would prevent DOE from enforcing efficiency guidelines created under a 2007 energy law. The amendment passed 232-189. The proposal is a source of consternation for energy efficiency advocates, given that Burgess serves as an honorary board member of the Alliance to Save Energy.
Reps. Charles Boustany (R-La.), Bill Huizenga (R-Mich.) and Janice Hahn (D-Calif.) succeed in attaching an amendment that would require the House to meet its target level funding for the Harbor Maintenance Trust Fund under a commitment included in the Water Resources Reform and Development Act of 2014. The amendment passed by a voice vote. Boustany and Rep. Ralph Abraham (R-La.) also pushed through by voice vote an amendment to defund the Federal Flood Risk Management Standard.
The final bill also included $150 million in funding to reopen Yucca Mountain in Nevada, a project opposed by most of the state's lawmakers, including GOP Sen. Dean Heller and Senate Minority Leader Harry Reid, and the White House.
"Today's actions in the House of Representatives, supporting legislation to set aside millions of dollars to fund Yucca Mountain, emphasize complete disregard for the people of Nevada. The federal government has already wasted billions of taxpayer dollars on this ill-conceived and deeply flawed project. It is time Members of Congress realize Yucca is dead," Heller said in a statement.
The 10 Democrats who voted for the bill were: Reps. Brad Ashford of Nebraska; Ami Bera, Jim Costa and Doris Matsui of California; Henry Cuellar, Gene Green and Filemon Vela of Texas; Bill Keating of Massachusetts; Collin Peterson of Minnesota; and Dutch Ruppersberger of Maryland.
The Republicans who voted against the bill were: Justin Amash of Michigan, Mo Brooks of Alabama, Joe Heck of Nevada, Thomas Massie of Kentucky, Jim Sensenbrenner of Wisconsin, Chris Gibson of New York and Walter Jones of North Carolina.
Click here for a full list of the amendments.
Click here for the bill text.
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White House Threatens Veto Of 'Waters' Bills
Apr 30, 2015 | InsideEPA
President Obama is threatening to veto two House measures seeking to block the administration’s Clean Water Act (CWA) jurisdiction rule, saying that a bill to require a re-proposal of the policy after extensive consultation would be duplicative and impose unnecessary burdens, even as senators just unveiled similar bipartisan legislation.
According to an April 29 statement of administration policy (SAP) issued by the Executive Office of the President onH.R. 1732, introduced by Rep. Bill Shuster (R-PA) and slated for a vote May 1, the president would veto the measure. Additionally Obama would veto an appropriations bill, H.R. 2028, that includes a rider seeking to block the jurisdiction rule, according to an April 28 SAP.
H.R. 1732, which the House Transportation & Infrastructure Committee approved April 15, would require an extensive consultation process with states and industry over the scope of the water law and force EPA and the Army Corps of Engineers to withdraw the proposal EPA issued April 21, 2014, within 30 days of enactment. The agencies would then have to craft a new proposal based on comments received on the rule, a related cost-benefit analysis and scientific study on waters' connectivity, and joint consultations with state and local stakeholders.
In the SAP, Obama says that the proposed rule has already undergone an extensive public engagement process and is needed to ensure regulatory certainty.
“It would be imprudent to dismiss the years of work that have already occurred and no value would be added,” the SAP says. “The agencies need to be able to finish their work.”
The veto threat comes as the Senate has introduced similar legislation aimed at forcing a revised proposal with a specific checklist of which waters can and cannot be covered by a new rule -- seeking to provide more specificity than the Shuster bill.
The senators at an April 30 press conference touted the bill's “moderate” language, saying they anticipate receiving enough Democratic support, once the bill is read through, to possibly override a potential presidential veto.
The legislation -- introduced by Sen. James Inhofe (R-OK) with backing from Sens. John Barrasso (R-WY), Joe Donnelly (D-IN), Pat Roberts (R-KS), Joe Manchin (D-WV), and Heidi Heitkamp (D-ND) -- would set a deadline of Dec. 31, 2016, for EPA and the Army Corps of Engineers to issue a revised rule and outlines the types of waters that would be subject to CWA jurisdiction.
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Senators Propose Fee for Use of Older Tank Cars
May 1, 2015 | Progressive Railroading
Editor's note: Later this morning, U.S. Transportation Secretary Anthony Foxx and Canada's Minister of Transport Lisa Raitt will hold a joint press conference to announce standards for new tank cars. ProgressiveRailroading.com will post an update following their announcement.
Seven U.S. senators yesterday introduced legislation that they say would speed up the phasing out of older tank cars used to transport crude oil by rail.
The Hazardous Materials Rail Transportation Safety Improvement Act of 2015 (S. 1175) calls for a $175 per shipment fee on older tank cars, known as DOT-111s, that are used to ship crude and other hazardous materials. The bill also would offer a tax credit to companies that upgrade the newer cars to the highest required safety standard, according to a press release issued by U.S. Sen. Ron Wyden (D-Ore.).
Revenue raised by the fee would establish a dedicated fund for the cleanup costs of oil train accidents, advanced training for first responders and grant money for states and cities to reroute rail tracks that carry large volumes of hazardous materials away from highly populated areas.
Joining Wyden in introducing the bill were Sens. Chuck Schumer (D-N.Y.), Dianne Feinstein (D-Calif.), Bob Casey (D-Pa.), Jeff Merkley (D-Ore.), Sherrod Brown (D-Ohio) and Mark Warner (D-Va.).
"It's time for the Department of Transportation to push faster and more aggressively to make oil-by-rail transportation safer," said Wyden. "This legislation takes a market-based approach to get unsafe cars off the tracks and safer cars on the tracks more quickly."
Added Schumer: "We need an all-of-the-above approach when it comes to phasing out these dangerous and old tank cars." -
DOT Issues Final Rules on Flammable Oil Trains
May 1, 2015 | PoliticoPro
By Elana Schor
The Obama administration imposed tougher safety regulations Friday for trains carrying crude oil, responding to growing alarm about a series of fiery derailments that killed dozens of people in a small Canadian town and have rattled U.S. communities from North Dakota to Alabama to Virginia.
Details of the rules provoked a furious rebuke from the railroad industry’s main lobbying group, which called DOT’s mandate for advanced brakes “a rash rush to judgment,” while oil refiners said its requirements for retrofitting older tank cars by as early as 2018 are “unrealistic” and may disrupt commerce. On the other hand, the rules fall far short of some environmental groups’ call for banning oil train shipments altogether.
Transportation Secretary Anthony Foxx said the long-awaited regulations are meant to absorb the lessons of the oil train accidents of recent years, including the July 2013 derailment and explosion that incinerated 47 people in Lac-Mégantic, Quebec. The rules are also a response to the huge surge in oil production in heartland states like North Dakota, thanks to the shale revolution that has made the U.S. a growing oil and gas superpower.
“Since 2008, we have seen a staggering, staggering 4,000 percent increase in the transport of crude by rail,” said Foxx, who was accompanied by Canadian Transport Minister Lisa Raitt.
“The truth is, 99.9 percent of these shipments reached their destination safety,” Foxx said, citing a statistic that the railroad industry likes to cite. But he added: “The accidents involving crude and ethanol that have occurred, though, have shown us that 99.9 percent isn’t enough. We have to strive for perfection.”
Acting Federal Railroad Administrator Sarah Feinberg dismissed the railroad industry’s objections to the newly required braking systems, which will have to be in place as early as 2021.
“We are not an agency with a goal of making things convenient or inexpensive for industry,” she said. “Our entire goal and mission is safety.”
But Sen. Maria Cantwell (D-Wash.), whose state has seen protests against oil train shipments, said DOT’s action “is just like saying let the oil trains roll. … It does nothing to address explosive volatility, very little to reduce the threat of rail car punctures, and is too slow on the removal of the most dangerous cars.”
Sen. Tammy Baldwin (D-Wis.) agreed. “While I am glad that the administration is finally taking steps to protect our communities, I have serious concerns with these rules,” she said in a statement. “Inadequate tank cars will be allowed to continue carrying volatile crude oil until 2020, and in some cases indefinitely.”
“The good news is that the standards for tank cars are tough and provide certainty, but the phase-out timeline lets the railroads take too long to implement it,” said Democratic Sen. Chuck Schumer of New York.
In a more positive vein, Sen. Susan Collins (R-Maine) said the new tank car standards “appear to move in the right direction and should help prevent future tragedies.” And Rep. Peter DeFazio of Oregon, the top Democrat on the House Transportation Committee, said that “at first glance, this rule will provide certainty to manufacturers, shippers, and railroads and better protect the American public” — though he noted that “the National Transportation Safety Board first recommended replacing and retrofitting these cars more than 20 years ago.”
Besides provisions on tank cars and brakes, the rules also include stiffer construction standards for rail tank cars made after Oct. 1 and permanent versions of the speed limits that DOT had previously announced.
Friday’s announcement came one day after the first anniversary of an oil train derailment and explosion in Lynchburg, Va., that dumped crude into the James River.
Important aspects of the rules go beyond what the oil and railroad industries had suggested — for example, new tank cars designed to transport crude that are made after Oct. 1 will have to have steel walls that are 9/16th-inch thick, compared with the half-inch thickness both industries had jointly called for last fall. And the rule requires trains to use the advanced electronically controlled pneumatic brakes that they had aggressively fought against — within eight years at the most.
While oil refiners have long urged DOT to pay closer attention to track inspections and other mandates that might put more of a compliance burden on railroads, the final rules go easy on oil companies by not requiring them to process their fuel to make it less volatile before shipping it.
The rules also make permanent the provisions of an emergency order DOT issued last month that limits oil trains containing at least one older-model tank car to only 40 mph in “high-threat” urban areas. All crude-by-rail service would be restricted to 50 mph, in line with a voluntary speed limit that railroads adopted in 2013.
The regulations also include provisions affecting ethanol, another flammable liquid frequently shipped by rail.
The rules came well beyond the date that Foxx originally promised lawmakers — he had said repeatedly in hearings last year that it would not be allowed to go into 2015. Friday’s announcement comes amid serious and growing pressure from lawmakers in both chambers to get a handle on the issue, especially against the backdrop of Canada’s own actions on oil trains, which at times seemed faster and more aggressive than DOT’s.
Congress attempted to prod DOT into action last year by setting a Jan. 15 deadline to complete the crude-by-rail regulations, but the administration blew past that deadline. While Democrats pressed DOT for the strongest possible rules, Republicans have amplified concerns from the oil industry and other shippers that an unattainable retrofitting timeline for tank cars could lead to further delays and congestion.
Last May, DOT issued a “safety advisory” asking — but not requiring — shippers of Bakken crude to discontinue using older DOT-111 models of tank cars and instead use newer cars with the model name CPC-1232. But weeks earlier, Canada had announced a series of mandates including the phase-out or retrofitting of DOT-111 tank cars in the next three years, prompting grousing among U.S. regulators.
“When can we expect the U.S. DOT to raise the bar, to up the ante?” asked NTSB member Robert Sumwalt during a safety forum around the time Canada acted.
“Right now in three years, those communities that live alongside railroad tracks that are transporting crude oil in Canada, those communities will ostensibly have a higher level of safety than will those communities here in the U.S.,” he added at the time. “So when is the DOT going to step up to the plate?”
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Obama Cracks Down on Oil Trains
May 1, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration on Friday unveiled a sweeping set of reforms to rules regarding the transportation of crude oil by rail in the wake of numerous high-profile disasters.
The regulations announced by the Department of Transportation (DOT) are a comprehensive suite of standards regarding rail car design, braking ability, speed limits and other provisions.
“Our goal and what we accomplished is to create a comprehensive approach to safety that will prevent accidents from happening, that will mitigate damage if they do and support emergency response,” Transportation Secretary Anthony Foxx told reporters in a Friday news conference.
The set of rules, Foxx said, “significantly improves current regulations and requirements. It will make transporting flammable materials by rail safer than it is today.”
All railcars currently carrying ethanol and crude oil will have to be phased out within seven years or retrofitted, and the new standards will start later this year for newly constructed railcars.
The new standards include thicker steel shells, enhanced braking systems and guards to protect the ends of tank cars and their valves.
The DOT is also mandating new standards for routing oil trains, speed limits and efforts to better prepare emergency responders and communities where oil trains travel.
Canada committed to similar rules under a similar schedule as part of an effort to coordinate safety on the integrated rail system between the countries. Lisa Raitt, Canada’s transport minister, traveled to Washington, D.C., to participate in Foxx’s news conference.
“The schedule we set seeks to strike a balance,” Raitt said. “We have to increase the safety of railcars. But we also must provide tank car owners enough time to comply with the new requirements while railway companies continue to meet the shipping demands.”
Regulators began taking a close look at oil train safety after the July 2013 derailment and explosion of a train in Lac-Megantic, Quebec, that killed 47.
Since then, other high-profile disasters have also received attention from regulators in both countries, including ones in Castleton, N.D., last year and in rural West Virginia earlier this year.
The uptick in wrecks comes amid sharp growth in oil production in areas like North Dakota and Texas. Last year, for example, saw the highest increase in domestic production of any year on record.
That has caused a 4,000 percent increase in oil train shipments since 2008.
“The truth is that 99.9 percent of these shipments reach their destination safely,” Foxx said. “The accidents involving crude and ethanol that have occurred, though, have shown us that 99.9 percent isn’t enough.”
When the proposed rules came out last year, railroads and oil companies were united in calling for a slower schedule for phasing out the oldest railcars, and for regulators to adopt the latest voluntary tank car standards — dubbed 1232 — in the rules.
Foxx said industry input was very important in the regulatory process.
“We could have both been more aggressive, but at some point, the manufacturers aren’t going to be able to produce the tank cars we need,” he said.
The American Petroleum Institute (API) said Friday that it needed more time to review the final rules before passing judgement, but it welcomed the actions.
“As we review these rules, the key question is whether science and data show each change will make a meaningful improvement to safety,” API President Jack Gerard said in a statement.
“A thoughtful, comprehensive and data-driven safety approach is critical to improving on the 99.997 percent safety record of freight rail to reach our goal of zero accidents,” he said.
Rep. Peter DeFazio (Ore.), top Democrat on the House Transportation and Infrastructure Committee, congratulated Foxx for releasing the rules, but said he would review them thoroughly before making substantive comment.
“At first glance, this rule will provide certainty to manufacturers, shippers, and railroads and better protect the American public,” he said.
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Stung By Derailments, U.S. and Canada Overhaul Crude-By-Rail Regs
May 1, 2015 | E&E - Greenwire
By Blake Sobczak
U.S. and Canadian officials unveiled regulations today that would effectively overhaul the entire fleet of U.S. crude oil tank cars in five years.
The crude-by-rail safety rule -- jointly developed by the U.S. Department of Transportation and Transport Canada -- marks the most significant regulatory action since a runaway train hauling oil derailed and exploded killing 47 people two years ago in Lac-Mégantic, Quebec.
"We can never undo the damage that took place in Lac-Mégantic or in any other railway accident, but we can and must learn from those events and improve our system," Canada's Minister of Transport Lisa Raitt said during a press conference yesterday in Washington, D.C.
The final rule creates a new North American tank car standard, dubbed the DOT-117, with thicker steel and redesigned bottom outlet valves, among other improvements over the type that shred open and burst into flames in Lac-Mégantic. U.S. shippers will have until 2018 to scrap or upgrade those older, more puncture-prone type DOT-111 tank cars, while Canada will phase all of those cars out of crude service by May 1, 2017.
The rule would also require companies hauling crude and ethanol to retool or get rid of a newer, industry-developed tank car model by 2020. That so-called CPC-1232 type of tank car -- thousands of which have been manufactured since 2011 -- has been criticized for exploding in a string of other oil train derailments across the United States and Canada in the past year and a half.
A spate of oil train accidents in West Virginia, North Dakota, Virginia and Illinois caught the attention of U.S. lawmakers on both sides of the aisle, who had hounded DOT on the pace of the rulemaking finalized today.
Last year, nearly a half-million tank cars laden with flammable crude oil moved across the United States, up from practically no traffic eight years ago, according to data from the Association of American Railroads.
The AAR, which represents oil-by-rail giants BNSF Railway Co. and Canadian Pacific Railway Ltd., welcomed the rule in a statement yesterday but came out swinging against a provision to add advanced and costly electronically controlled pneumatic (ECP) braking systems to "high-hazard" oil trains.
Ed Hamberger, AAR's president and CEO, called the braking mandate "imprudent."
Regulators "couldn't make a safety case for ECP but forged ahead anyhow," he said.
U.S. Transportation Secretary Anthony Foxx defended his department's attention to ECP brakes, which would be required by 2021 on only the largest crude oil trains carrying 70 or more cars.
ECP brakes engage simultaneously across an entire train and can stop a string of tank cars several seconds faster than conventional braking systems, according to analyses.
"The bottom line is that ECP brakes in this context of transporting flammable liquids can be the difference between a contained fire and a catastrophe," Foxx said.Reactions
The oil and refining industries cautiously welcomed the rule in statements today, even as they criticized the five-year deadline for scrapping or upgrading the vast majority of the U.S. crude oil tank car fleet.
Brendan Williams, executive vice president for the American Fuel and Petrochemical Manufacturers, a leading trade group for refiners, warned that the "aggressive retrofit schedule is unrealistic and may be disruptive to transporting crude oil to markets across the country."
The American Petroleum Institute, which represents major oil producers such as Exxon Mobil Corp. and Chevron Corp., voiced similar concerns.
"The railcar manufacturing industry's own calculations show it does not have the shop capacity to meet the retrofit timeline announced today, which will lead to shortages that impact consumers and the broader economy," API's President and CEO Jack Gerard said.
Politicians gave a warmer reception to the rule, which was nearly two years in the making and attracted heavy interest from lobbyists, environmentalists and the broader public.
Rep. Peter DeFazio (D-Or.), the ranking member for the House Committee on Transportation and Infrastructure, said that "at first glance, this rule will provide certainty to manufacturers, shippers and railroads and better protect the American public."
Environmentalist and public advocacy groups were more skeptical. The rule didn't significantly change the way communities interact with railroads that pass through them and would require individual towns to request information on hazardous materials shipments rather than receive such details automatically.
DOT also fell short of meeting environmentalists' calls to immediately ban the oldest, riskiest model of tank car. Regulators also did not issue any requirement to "strip" light Bakken crude oil of its more volatile gaseous components, a step many have said would make moving it by rail less dangerous.
Tyson Slocum, energy program director for Public Citizen, called the rule a "necessary first step" but noted that it "does little to minimize the magnitude of any explosion that occurs after an oil train derails and explodes."
Foxx and Raitt emphasized that they would continue to consider new crude-by-rail safety actions in the future. DOT recently announced it would team up with the Department of Energy to investigate Bakken Shale crude volatility in what could lay the groundwork for future regulations.
Still, Foxx called today's rule "a big step, and it shouldn't be understated."
His Canadian counterpart sought to pre-empt industry criticism that could see its day in court if the rule is challenged.
"I know that the safety measures that we have outlined today will not be easy, and quite frankly they will not be cheap," Raitt said. "But the financial losses and the costs of cleaning up after such an event like Lac-Mégantic would, in the long run, be far more burdensome."
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