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(ACC Mentioned) Formaldehyde Industry Beats Back Serious Regulation
May 6, 2015 | All Gov
By Noel Brinkerhoff and Steve Straehley
A five-year effort to develop the first serious federal regulations for formaldehyde has been under assault by manufacturers and their political allies. -
(ACC Mentioned) Industry Protests Calif. Bid to List Styrene as Carcinogen
May 6, 2015 | E&E - Greenwire
By Sam Pearson
California regulators are facing industry criticism over the proposed listing of styrene -- one of the largest volume chemicals produced in the United States -- among materials known to cause cancer or reproductive harm. -
Why this 30-Year Senate Friendship May Have Gone Toxic
May 6, 2015 | The Washington Post
By Al Kamen
Part of a news story Tuesday on the bitter fight over the Toxic Substances Control Act caught our eye: -
US EPA Reports on IRIS Improvements to Congress
May 6, 2015 | Chemical Watch
The US EPA has implemented many of the recommendations made by the National Research Council in 2011 to improve the Integrated Risk Information System (IRIS) programme assessments, the agency has said in a report to Congress. -
EPA Assures Congress Of Progress In Addressing IRIS Recommendations
May 6, 2015 | InsideEPA
By Maria Hegstad
EPA leaders in a new report to Congress are outlining the agency's progress in efforts to better assess evidence regarding chemicals' toxicity and inform the public about their ongoing analyses, actions that are intended to address recommendations from the National Academy of Sciences (NAS) on the agency's influential Integrated Risk Information System (IRIS) program. -
Cosmetics Industry Supports National Microbeads Phase-Out Legislation
May 6, 2015 | Chemical Watch
The cosmetics and personal care products industry supports federal legislation on the phasing out of microbeads in its products that sets “a national uniform standard that provides certainty for both consumers and businesses”, Congress was told. -
Texas AG Vows to 'Challenge' EPA Carbon Plan
May 6, 2015 | E&E - Energywire
By Edward Klump
Count Ken Paxton, Texas' Republican attorney general, among those in the Lone Star State who have major problems with U.S. EPA's proposal to curb carbon dioxide emissions from existing power plants. -
Texas Plans to Sue Over Clean Power Plan, But With a Slower Timeline than Other States
May 6, 2015 | E&E - Climatewire
By Scott Detrow
Texas is joining the legal fight against U.S. EPA's Clean Power Plan. -
Industry Groups Object to EPA's Review of NO2
May 6, 2015 | E&E- Greenwire
By Amanda Peterka
Industry organizations are quietly raising concerns that a U.S. EPA draft science review overstates the negative health impacts of exposure to nitrogen dioxide, a pollutant emitted by vehicles, power plants and other industrial operations. -
As House Eyes Deal, West Virginia Senator Readies Bill Targeting ESPS
May 6, 2015 | InsideEPA
By Doug Obey
Sen. Shelley Moore Capito (R-WV) is poised to introduce legislation next week that appears likely to give states more time to comply with the EPA's greenhouse gas (GHG) rule for existing power plants and could also allow states to opt out -- a provision likely to face opposition from many Senate Democrats who would argue it undercuts the agency. -
EPA Sees 2008 Ozone Implementation Rule As Template For Future NAAQS
May 6, 2015 | InsideEPA
By Stuart Parker
A senior EPA air official says the agency's recent rule setting long-awaited guidance on how states should craft plans for complying with the 2008 ozone national ambient air quality standard (NAAQS) will serve as a template for the flexibilities and limitations EPA will offer states in their plans for meeting a future revised ozone standard. -
SAB Urges EPA To Improve Water CCL Process' Transparency, Efficiency
May 6, 2015 | InsideEPA
By Amanda Palleschi
EPA's Science Advisory Board (SAB) is urging the agency to make its processes for evaluating which contaminants may need regulation under the Safe Drinking Water Act (SDWA) more efficient and transparent by streamlining the timing of various regulatory processes, better explaining the agency's decision-making process and scaling back the number of contaminants it considers for regulation to between 20 and 50. -
Carbon Dioxide Hits New Milestone
May 6, 2015 | The Hill - E2 Wire
By Timothy Cama
Global carbon dioxide levels in the atmosphere surpassed 400 parts per million in March for the first time on record, federal researchers said. -
Oil Train Derails, Catches Fire in North Dakota
May 6, 2015 | PoliticoPro - Whiteboard
By Heather Caygle and Kathryn A. Wolfe
A BNSF train carrying crude oil derailed and caught fire this morning, causing the evacuation of Heimdal, N.D., a small town about two hours out of Bismarck. -
FRA Sends 10-Person Team to North Dakota Derailment
May 6, 2015 | PoliticoPro - Whiteboard
By Heather Caygle
The Federal Railroad Administration has dispatched a 10-person team to the site of a fiery oil train derailment in North Dakota, acting Administrator Sarah Feinberg said in a statement. -
N.D. Town Evacuated Following Oil Train Derailment
May 6, 2015 | E&E - Greenwire
The town of Heimdal, N.D., was evacuated today after an oil train derailed and caught fire. -
Rail Industry Eyes Tank Car Challenge
May 6, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
Norfolk Southern Corp.’s CEO told the Wall Street Journal the railroad industry will “challenge” the administration’s newly-minted tank car rule, though he said just how remains up in the air. -
Dentons' Rubin Talks Oil-By-Rail Politics, Impact of DOT Rule on Railways and Energy Production
May 6, 2015 | E&E - TV
How are lawmakers responding to last week's rollout of the Department of Transportation's final rulemaking on crude-by-rail safety? During today's OnPoint, James Rubin, counsel in Dentons' global energy sector, discusses the politics of the plan and gives his expectations for subsequent rules.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Energy and Environment News
Transportation News
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(ACC Mentioned) Formaldehyde Industry Beats Back Serious Regulation
May 6, 2015 | All Gov
By Noel Brinkerhoff and Steve Straehley
A five-year effort to develop the first serious federal regulations for formaldehyde has been under assault by manufacturers and their political allies.
The U.S. Environmental Protection Agency (EPA) has worked since 2010 on new rules to limit the chemical’s vapors from furniture, flooring and other products. It would also create testing standards to make sure companies are complying with the new limits, according to Eric Lipton and Rachel Abrams of The New York Times.
The regulations don’t go so far as to ban formaldehyde outright. They do, however, represent the agency’s first attempt at regulating formaldehyde that ends up in most American homes.
Opponents of the regulations, including furniture makers in the U.S. and in China (helped by the Chinese government), have lobbied the Obama White House to get the EPA to water down its rules. The opposition has both liberal and conservative backers, ranging from Sen. Barbara Boxer (D-California) to Sen. Roger Wicker (R-Mississippi). The effort has apparently paid off because the EPA “is now preparing to ease key testing requirements before it releases the landmark federal health standard,” Lipton and Abrams reported. The EPA revised its report to lower the monetary amount of damages formaldehyde causes each year, which meant that regulators could lessen the testing burden on companies that make laminated products such as flooring containing the chemical.
Formaldehyde and its effects first gained national attention after Hurricane Katrina, when trailers provided by the Federal Emergency Management Agency to house the storm’s survivors caused a variety of health problems. The source of the symptoms, including respiratory problems, burning eyes and other complaints, were traced to formaldehyde leaching from the hastily constructed trailers. Public health officials tried to get the use of the chemical limited in building materials, but only California took steps to curb its use.
Formaldehyde is a known carcinogen that can cause respiratory ailments such as asthma and possibly cancers like myeloid leukemia.
Lobbying groups, led by the American Chemistry Council have challenged the link between formaldehyde and cancer. They’ve had a strong ally in Sen. David Vitter (R-Louisiana), a major recipient of chemical industry campaign contributions, who has been nicknamed by some environmental groups as “Senator Formaldehyde.” Coincidentally, it’s many of Vitter’s constituents who were sickened by the chemical in trailers after Katrina hit.
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(ACC Mentioned) Industry Protests Calif. Bid to List Styrene as Carcinogen
May 6, 2015 | E&E - Greenwire
By Sam Pearson
California regulators are facing industry criticism over the proposed listing of styrene -- one of the largest volume chemicals produced in the United States -- among materials known to cause cancer or reproductive harm.
Under the state's Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed designating styrene as a known carcinogen this year, using a mechanism that allows the state to incorporate the findings of other government bodies (E&ENews PM, Feb. 27).
OEHHA's proposal used findings of the National Toxicology Program, part of the federal Department of Health and Human Services.
Styrene is used in the production of polystyrene plastics and resins. About 10.24 billion pounds of styrene was produced in the United States in 2011 by Bayer MaterialScience, Shell Chemical LP, BASF Corp., Dow Chemical Co., Lyondell Chemical Co. and others, according to the most recent data submitted by companies to U.S. EPA.
NTP first classified styrene as "reasonably anticipated to be a human carcinogen" in 2011. A congressionally mandated review by the National Research Council found NTP's decision was supported by "sufficient" evidence from animal studies and "convincing relevant information from mechanistic studies" (Greenwire, July 29, 2014).
Industry groups warned of unintended consequences of a listing and contend that the National Toxicology Program's (NTP) listing was based on faulty science. They argue that state regulators must consider an additional animal study that the Report on Carcinogens did not consider and also need to consider more recent research since NTP completed its work in 2011.
The listing may encourage lawsuits over "art material products containing unintended, and probably very small, concentrations of styrene monomers," the Art and Creative Materials Institute warned. The listing could also affect California's agricultural industry, which uses polystyrene food containers to transport produce.
The American Chemistry Council noted in its comments that government agencies had not found a health risk from polystyrene food containers. However, the group said it agreed with comments filed by the Styrene Information and Research Center that "there is no basis for listing styrene under the authoritative bodies mechanism."
But two nonprofits -- the Center for Environmental Health and the Natural Resources Defense Council -- are backing California regulators, urging the agency "to move expeditiously to complete the Proposition 65 listing of styrene." The public comment period closed April 29, and OEHHA posted the comments on its website yesterday.
Caroline Cox, research director at the Center for Environmental Health, said OEHHA's decision was simple. Under state regulations, she said, it's not relevant at this point for regulators to assess how the listing could affect specific products or industries.
If OEHHA decides to move forward on the listing, the agency would have to develop a safe harbor level of exposure to styrene, and areas where people are likely to be exposed above those levels would need to have warning labels, Cox said. That process could allow, for example, polystyrene manufacturers to argue that their products don't result in styrene exposure at levels high enough to require the labels, Cox said.
Businesses have often complained that Proposition 65 rules would disrupt their operations, Cox said, but she thought companies would not have trouble adapting.
EPA has not classified styrene as a carcinogen, though it has tried to complete an assessment of the chemical since 1998.
Sen. Tom Udall (D-N.M.) has mentioned styrene as among the chemicals he would like to see regulated if a bill aimed at changing how EPA oversees chemicals -- S. 697, the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- becomes law.
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Why this 30-Year Senate Friendship May Have Gone Toxic
May 6, 2015 | The Washington Post
By Al Kamen
Part of a news story Tuesday on the bitter fight over the Toxic Substances Control Act caught our eye:
Seems Sen. Tom Carper (D-Del.) told Bloomberg BNA that his “push for a single national approach had drawn vociferous opposition from Sen. Barbara Boxer (D-Calif.), the committee’s ranking Democrat, who sought to protect the role of California’s regulatory program in the TSCA scheme.”
Carper said his support for the bill meant his and Boxer’s friendship of more than 30 years “basically ended.”
So we checked with Boxer’s office to see if she felt that way. Curiously, we got a call back from Carper’s office, followed by a “nooo” statement from Carper saying: ““I want to be clear, Barbara Boxer has been my friend for 30 years and she’s my friend today.”
How to regulate toxic chemicals is an “emotionally charged issue,” and the process has been “challenging.” Their policy differences “tested our long relationship,” the statement said, but “we came through it as stronger friends and will remain friends for years to come.”
Boxer’s office checked with her and she said, “Tom speaks for me.”
Well, there you have it. Coulda been a bit more effusive, but …
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US EPA Reports on IRIS Improvements to Congress
May 6, 2015 | Chemical Watch
The US EPA has implemented many of the recommendations made by the National Research Council in 2011 to improve the Integrated Risk Information System (IRIS) programme assessments, the agency has said in a report to Congress.
These recommendations were made, after reviewing the agency’s draft IRIS risk assessment of formaldehyde, and were focused on the development of such assessments. A NRC report, released in May last year, credited the agency with making “substantial improvements” to the programme (CW 6 May 2014).
In July 2013, the EPA announced a series of improvements. In its report it said it is “implementing the enhancements for ongoing assessments as practicable, with the goal of improving their scientific integrity, increasing the productivity of the IRIS programme and transparency so issues are identified and discussed earlier in the assessment development process.” “These enhancements incorporate additional opportunities for stakeholder and public engagement at various stages of the IRIS process.”
Recommendations the EPA have carried out include, enhancing the clarity of assessments, describing methods “more fully”, doing “rigorous, independent” peer review, setting up a new standing committee to review IRIS assessments and developing “stopping rules” for new data and scientific issues to help ensure that assessments are not delayed by new research findings.
“Over the past three years, the EPA has worked to strengthen and streamline the IRIS programme, improve transparency and create efficiencies,” it said.
Noting that NRC's acknowledgement of “substantial improvements to the IRIS programme in a short amount of time”, the EPA said it is “committed to evaluating how well our approaches promote constructive public discussion with our stakeholders, as well as reviewing how they can more effectively facilitate subsequent assessment development.”
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EPA Assures Congress Of Progress In Addressing IRIS Recommendations
May 6, 2015 | InsideEPA
By Maria Hegstad
EPA leaders in a new report to Congress are outlining the agency's progress in efforts to better assess evidence regarding chemicals' toxicity and inform the public about their ongoing analyses, actions that are intended to address recommendations from the National Academy of Sciences (NAS) on the agency's influential Integrated Risk Information System (IRIS) program.
The report, "EPA's [IRIS] Program Progress Report and Report to Congress," released publicly May 1, is written in response to a congressional directive included in report language accompanying fiscal year 2014 appropriations for EPA. The agency has also drafted such documents in 2012 and 2013 in response to congressional directives, explaining its progress in responding to a critical 2011 NAS report reviewing a draft IRIS assessment of the human health risks of formaldehyde that outlined broad concerns with the IRIS program as a whole.
As outlined in the new report, the IRIS program has conducted scientific workshops on issues of concern to the program, such as reviewing formaldehyde hazard evidence and how to implement systematic review approaches into IRIS, and is holding bimonthly meetings to address various assessments, and testing various systematic review approaches.
For example, the document describes its efforts to address NAS recommendations on conducting dose-response analyses and calculating toxicity values as "implemented." The report states program staff "has improved the quality control of the overall dose-response modeling process and increased transparency by documenting the approach for conducting dose-response modeling. Part of this documentation is achieved with the addition of considerations for selecting organ/system-specific and overall toxicity values."
However, the report adds that "EPA is working to address the recommendations on characterizing and communicating uncertainty discussed in the 2014 [NAS] report [o]n IRIS assessments."
The report outlines EPA's ongoing efforts to determine how best to conduct evidence integration, one of the key areas that NAS criticized in the 2011 report. A followup NAS report, published last year, praised the agency for its efforts while pointing to additional improvements the committee felt the agency should make in the program. The NAS reports urged EPA to make its existing guided-expert judgment process more transparent to stakeholders or adopt a more structured approach, such as systematic review.
IRIS Recommendations
EPA's new report indicates that it is still experimenting with various approaches to address these recommendations.
"The IRIS Program recognizes the benefit of adopting a formal weight-of-evidence framework, which may include elements of both structured and guided expert judgment processes, to define standardized classification of causality," the document states, before describing the systematic review workshop EPA hosted in August 2013.
"The Agency is in the process of evaluating the information received during the workshop," as well as the followup 2014 NAS report, "and anticipates making decisions about weight-of-evidence evaluations as we move forward with assessment development in 2015,” according to the report.
Congress also asked EPA to provide a status update on its ongoing effort to assess formaldehyde's human health risks. The agency released a draft for public comment and peer review in 2010, which NAS criticized in its 2011 report. But EPA provides little new information about the assessment in the new report, largely outlining the workshop the agency hosted on formaldehyde data last year. The report adds only, "The revised draft formaldehyde assessment will be released for public comment and rigorous, independent expert peer review by the" Science Advisory Board Chemical Assessment Advisory Committee.
The program has yet to address a key issue raised by the Government Accountability Office (GAO) in a pair of reports in recent years, which have questioned whether the program is relevant, based on the long delay in assessing chemicals and updating the assessments. For example, the program in FY14 failed to finalize any IRIS assessments.
The new report does address another GAO recommendation, that the IRIS program could be better managed if it had a prioritized, multi-year plan for which chemicals would be assessed and when. IRIS leaders have been working for months to finalize and publish this plan. In the new report, EPA indicates this plan should be released in the coming weeks.
"In response to this recommendation, EPA initiated an IRIS multi-year planning effort which prioritizes the chemicals on the 2012 IRIS Agenda," the report states. "This Agency-wide initiative was implemented to ensure that the IRIS Program's chemical assessment agenda is best suited to meet the Agency's regulatory needs. It is anticipated that the results of this multi-year planning effort will be shared with the public in the third quarter FY2015."
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Cosmetics Industry Supports National Microbeads Phase-Out Legislation
May 6, 2015 | Chemical Watch
The cosmetics and personal care products industry supports federal legislation on the phasing out of microbeads in its products that sets “a national uniform standard that provides certainty for both consumers and businesses”, Congress was told.
Testifying before the Energy and Commerce Subcommittee on Health, last week, John Hurson, executive vice president of the Personal Care Products Council, said federal policy can lend such certainty by setting “appropriate and pragmatic phase-out dates, appropriate definitions of synthetic microbeads, and the inclusion of over the counter drugs containing plastic microbeads.”
The committee was holding a hearing on a bill that would ban the sale or distribution of personal care products, containing synthetic plastic microbeads, from 1 January 2018 (CW 12 March 2015).
The Microbeads-Free Waters Act of 2015 was introduced by representatives Fred Upton (R-Michigan), the chairman of the House Energy and Commerce Committee, and Frank Pallone (D-New Jersey).
Mr Hurson stressed the need to “carefully define synthetic plastic microbeads, in the statute, to avoid inadvertently prohibiting the use of natural alternatives and to make sure the prohibition provides clear direction to companies regarding reformulation.”
Dan Wyant, director of the Michigan Department of Environmental Quality, told the subcommittee that it was important to put into place a “thoughtful but diligent phase out of the harmful microbeads”. This should be done, even as industry is allowed “a path forward for new product development and use, if they can demonstrate that their products will not have an adverse impact on the water and its biological life.”
Senator Linda Greenstein of the New Jersey legislature, who recently cosponsored legislation on the issue in her state, said “the New Jersey bill uses a gradual approach to stepping down the production of these synthetic microbeads until they are completely off the market by January 2020.”
The industry is already turning to natural alternatives, using crushed walnut shells, sea salt and pumice stone, for example, to produce the desired effect that the plastic microbead does, she said.
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Texas AG Vows to 'Challenge' EPA Carbon Plan
May 6, 2015 | E&E - Energywire
By Edward Klump
Count Ken Paxton, Texas' Republican attorney general, among those in the Lone Star State who have major problems with U.S. EPA's proposal to curb carbon dioxide emissions from existing power plants.
Paxton's office issued a news release yesterday to say he plans to "challenge" EPA's Clean Power Plan, which is expected to be finalized this summer.
"The Obama Administration's Carbon Rule would result in higher electricity costs and less reliability for Texans, all while doing little to nothing to affect the environment," Paxton said in a statement. "Texas has proven we can improve air quality without damaging our economy or Texans' pocketbooks. I will fight this ill-conceived effort that threatens the livelihood and quality of life of all Texans."
In response to a question about specific action, Paxton's press office indicated via email that litigation was expected.
"We will be filing a lawsuit after the rule is finalized, and will be working with other states to join in our challenge," the office said in a statement.
The Clean Power Plan seeks to cut carbon emissions from power plants 30 percent by 2030 compared with 2005 levels. Targets vary by state, and some interim goals could start in 2020. Under the plan, Texas may be looked at to reduce such carbon emissions in the range of about 39 percent compared with 2012.
EPA said in emailed comments last week -- after Oklahoma leaders criticized the agency -- that the Clean Power Plan was built on a "state-federal partnership" set up by Congress decades ago, citing the Clean Air Act. The agency also talked of giving "states important flexibility to design plans that meet their individual and unique needs."
Yesterday's news release from Paxton said reductions expected from Texas would be out of proportion to other states, saying it could have to account for about 18 percent of a national reduction while generating perhaps 11 percent of power in the country.
Leaders from the Texas Commission on Environmental Quality and the Public Utility Commission of Texas have expressed concern about potential implications of EPA's plan.
Texas lawmakers also have discussed approaches to EPA's carbon proposal during the state's current legislative session. Some parties are seeking to prevent Texas from voluntarily submitting an implementation plan, while others would like to see development of a state plan.
Yesterday, the state Senate Committee on Natural Resources & Economic Development discussed a concurrent resolution -- S.C.R. 27 -- that expresses opposition to EPA's carbon proposal.
The measure says, in part, that the Texas Legislature refuses to recognize the attempt by EPA "to enlarge its authority or conscript authority from the states, unless and until the United States Congress enacts legislation to the contrary." It also directs state agencies to avoid submitting a plan or assisting in implementing a state or federal plan until a rule has been resolved through judicial review.
The resolution was left pending in the committee, but it drew several responses.
Leigh Thompson of the Texas Public Policy Foundation told the panel she favored the state Senate's measure.
"The stakes of complying with the Clean Power Plan are not greenhouse gas emissions," she said. "The stakes are rooted in the very concept of federalism and state authority."
Cyrus Reed of the Lone Star Chapter of the Sierra Club countered that the Senate resolution wasn't a good idea, as it could open the door to a federal implementation plan.
"My opinion is that we're a lot better off coming up with our own plan even if we oppose the EPA rule legally, which we as a state can do," Reed said.
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Texas Plans to Sue Over Clean Power Plan, But With a Slower Timeline than Other States
May 6, 2015 | E&E - Climatewire
By Scott Detrow
Texas is joining the legal fight against U.S. EPA's Clean Power Plan.
But unlike the 15 states that have already attempted to block the Obama administration from requiring states to curb their power sectors' carbon footprints a collective 30 percent below 2005 levels over the next 15 years, the Lone Star State will not file its lawsuit until after the regulation is finalized.
Texas Attorney General Ken Paxton's announcement comes about three weeks after a panel of federal judges indicated they were likely to dismiss the existing legal challenge led by West Virginia, because it was filed at a time when the agency had only released draft language.
Appearing before the U.S. Court of Appeals for the District of Columbia Circuit last month, West Virginia's solicitor general argued that the impending rule is already affecting energy producers' long-term planning and causing financial harm. But Republican Judge Brett Kavanaugh called the draft rule "not that extraordinary" and commented that final rules are typically "the dividing line between judicial review and waiting" (Greenwire, April 16).
The wait means that Texas will file its own lawsuit against the Clean Power Plan rather than join the West Virginia challenge or a second intertwined suit led by Murray Energy Corp.
"The Obama Administration's Carbon Rule would result in higher electricity costs and less reliability for Texans, all while doing little to nothing to affect the environment," Paxton, a Republican, said in a statement yesterday. "I will fight this ill-conceived effort that threatens the livelihood and quality of life of all Texans."An 'unlawful intrusion'?
It's no secret that many Texas officials view the Clean Power Plan with suspicion -- even disdain. The state faces a relatively steep carbon reduction goal of 38 percent under the draft rule. As Paxton noted in his announcement, Texas would account for nearly a fifth of the national greenhouse gas emission reductions the rule is trying to achieve.
In the public comments Texas submitted to EPA in December, the state blasted the Clean Power Plan as an "unlawful intrusion" into state-level policymaking, and worried the required carbon reductions "would create significant electric reliability problems." The state also dismissed EPA's proposed implementation timeline as "unworkable and unattainable" in a dense, detailed comment that one official joked resembled a "Russian novel" (EnergyWire, Dec. 3, 2014).
The comments listed more than a dozen legal objections to the regulation, and though the attorney general's office was not a part of that submission, the question of whether Texas would file suit against the rule had generally been viewed as more of a question of "when" than "if."
Texas is the third state to join onto the initial wave of state-level challenges in recent months. Wisconsin Gov. Scott Walker announced his intention to join the West Virginia suit during his State of the State address in January (ClimateWire, March 27). Arkansas, which, like Texas, saw a new attorney general come into office this year, joined in March (ClimateWire, March 11).
It's not clear when Texas will file its lawsuit, because EPA has not said when it will release its final language. The agency has only announced it will publish the language "this summer."
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Industry Groups Object to EPA's Review of NO2
May 6, 2015 | E&E- Greenwire
By Amanda Peterka
Industry organizations are quietly raising concerns that a U.S. EPA draft science review overstates the negative health impacts of exposure to nitrogen dioxide, a pollutant emitted by vehicles, power plants and other industrial operations.
In public comments to the agency, organizations representing the oil and auto sectors said the draft assessment does not provide enough evidence to strengthen the associations between NO2 exposure and health effects such as respiratory diseases.
Under the Clean Air Act, EPA is required to review national ambient air quality standards every five years. When final, the assessment will form the basis for EPA's decision on where to set the standard for NO2.
EPA's review "continues to overstate the consistency, coherence and biological plausibility of NO2 health effects," the Alliance of Automobile Manufacturers wrote in a letter dated April 30. The review "also perpetuates a false impression that NO2 exposures of concern are ubiquitous in urban areas especially near roadways and arise from motor vehicles."
Many of the concerns raised by the industry groups are similar to the arguments that have been made in opposition to EPA's current proposal to tighten the national ozone standard based on public health effects.
EPA, however, is still in the early stages of its review of the nitrogen dioxide standard, and it's yet unclear whether the agency will propose to tighten the NO2 standard based on the scientific assessment.
In 2010, when EPA last reviewed the standard, it retained the annual limit of 53 parts per billion while adding a new one-hour standard of 100 ppb. The agency also issued requirements for an NO2 monitoring network to be established within 50 meters of major roads.
The key issue for EPA in the scientific assessment is whether studies published since 2008 -- the year the last assessment was done -- strengthen the evidence that NO2 is causing harm to human health.
EPA released its second draft of the assessment in January for public comment and for review by its scientific advisers.
In the draft, EPA said the scientific evidence strengthened the linkages between short-term NO2 exposure and respiratory and cardiovascular effects. The agency also said the evidence showed stronger relationships between long-term NO2 exposure and respiratory effects, cardiovascular effects, birth outcomes, total mortality and cancer.
"EPA conducted searches to identify peer-reviewed literature on relevant topics such as health effects, atmospheric chemistry, ambient concentrations and exposure," EPA said.
The agency also noted that NO2 concentrations can be up to 100 percent higher within 10 to 20 meters of a road than at locations farther away, but that peak concentrations are not always near roads -- a finding that indicates other factors are likely at play.
In its comments, the American Petroleum Institute raised several concerns with the agency's analysis. According to API, the agency did not evaluate studies in a systematic manner and was inconsistent in how it modeled the effects of multiple pollutants.
"We find it does not provide enough guidance for studies to be evaluated in a systematic manner using well-specified criteria, and, as such, EPA's analysis cannot be replicated by other investigators," API senior policy adviser Ted Steichen wrote in an April 30 letter.
API also said the associations between NO2 exposure and respiratory effects were "more likely the result of chance," bias and confounding factors.
The Alliance for Automobile Manufacturers also questioned whether the evidence presented by EPA showed stronger relationships between NO2 exposure and health effects, arguing that there were "numerous issues" with the epidemiological studies upon which EPA was relying.
EPA did downgrade some of the relationships from its first draft to the second draft, but the agency "still relies on selected positive associations from the literature and ignores or downplays evidence that is not supportive of the narrative that NO2 is causing health effects at or near current atmospheric levels," the alliance wrote.
The auto manufacturers' group argued that EPA should prominently note in its assessment that NO2 air quality has improved over recent decades and will continue to improve because of Tier III gasoline standards that have been put in place.
The whole country is currently listed as in attainment or unclassifiable under the 2010 NO2 standard.
The American Lung Association did not provide input on the most recent draft, but in a previous comment letter, the public health group defended EPA's assessment as a "thoughtful" approach that clearly indicated how studies were chosen for review and the criteria that were used to assess their quality.
The American Lung Association said it agreed with EPA that the weight of the evidence pointed to stronger relationships between NO2 exposure and negative health effects.
"Science marches forward, and more recent research clarifies old questions and adds new information," the association wrote in the letter last year. "The air quality standards must be periodically reevaluated to determine if they are adequate to protect public health with an adequate margin of safety, in light of the more recent evidence."
EPA is aiming to issued a proposed rulemaking for the NO2 standard by November 2016 and to finalize it by August 2017.
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As House Eyes Deal, West Virginia Senator Readies Bill Targeting ESPS
May 6, 2015 | InsideEPA
By Doug Obey
Sen. Shelley Moore Capito (R-WV) is poised to introduce legislation next week that appears likely to give states more time to comply with the EPA's greenhouse gas (GHG) rule for existing power plants and could also allow states to opt out -- a provision likely to face opposition from many Senate Democrats who would argue it undercuts the agency.
The upcoming legislation comes amid tentative talk of compromise between House GOP and Democratic lawmakers on similar legislation granting states more time to comply with EPA's existing source performance standards (ESPS), though some House and Senate Democrats warn that they regard any opt out language as a nonstarter.
Capito said during a May 5 Senate Environment & Public Works clean air subcommittee hearing on EPA's ESPS that she will introduce legislation next week to preserve the “proper balance” between federal and state authority on GHG policy.
Capito told reporters after the hearing that her bill would have “some similarities” to legislation approved last weekby the House Energy & Commerce Committee -- legislation that would allow state governors to opt out the regulation if they determine it would harm grid reliability or increase utility rates.
While largely avoiding details, she also said the bill would delve into the issue of “timelines” under the rule. Capito also indicated the legislation could address “reasonable technologies” for complying with the rule, but did not elaborate. Capito demurred on whether the bill would address both EPA's ESPS and its companion proposal for new power plants, though a Senate aide suggested the bill would address both rules in some fashion. “We are still writing,” Capito said.
Capito's remarks came after a hearing that showcased familiar arguments between EPA critics -- who claim the ESPS violates the Constitution and the Clean Air Act while giving states an inadequate time to comply -- and rule proponents who say it would preserve reliability and generate both economic and environmental benefits.
For example, Oklahoma's Attorney General Scott Pruitt (R) argued that the rule improperly requires reductions “beyond the fence line” of power plants, expressed concerns about a proposed one-year deadline for states to submit initial compliance plans and criticized the rule as economically burdensome. “States would be . . . forced to alter existing regulatory frameworks, which would threaten energy affordability and reliability for consumers,” he said.
Maryland Public Service Commissioner Kelly Speakes-Backman, however, argued GHG cuts can benefit both the economy and grid reliability. Also, Georgetown University Law Center's Lisa Heinzerling said critics' arguments against the rule's constitutionality and alleged inconsistency with the air act “collapse upon close inspection.”
She also cited prior examples of EPA pursuing beyond the fence line reductions of conventional air pollutants under the air act.
House Bill
The Senate hearing comes shortly after the House energy committee April 29 approved H.R. 2042 on a 28-22 party-line vote, clearing the way for the measure to be debated on the House floor.
The House bill would block implementation of the ESPS pending judicial review and give states the opportunity to opt out of the regulation.
Despite the party-line vote, Rep. Jerry McNerney (D-CA) during the markup offered to work with Republicans to give states additional time to write compliance plans for the regulation, if EPA's critics dropped demands for the state opt out. Rep. Ed Whitfield (R-KY), the bill sponsor and chairman of a House energy subcommittee, expressed some openness to the idea.
Capito in her May 5 remarks to reporters left the door open to including an opt out provision in her bill, though she stopped short of explicitly saying it would include such language. “I think we have to respect the states' ability to make decisions,” she said. In response to a query on whether the legislation could draw support from Senate Democrats, Capito said, “We are looking for it.”
Senators are generally avoiding taking a stance on Capito's measure until they see the details, but the bill could draw fire from many Senate Democrats unless it is substantially different than the House version.
Those likely critics include Sen. Richard Blumenthal (D-CT), who in May 5 remarks to InsideEPA/climate vowed to fight any measure that undercuts EPA's regulation. He added that any legislation allowing states to opt out of the ESPS would fit that description.
“Opting out of the rule will undercut, possibly kill, a very important environmental effect of enforcement,” he said. He added that Senate Democrats to date have supported the EPA regulation, and “I would expect that to continue.”
As such, if Capito's bill includes the opt out language, it could prove difficult to attract 60 votes to overcome any Democratic filibusters, or 67 votes to override a likely veto from President Obama.
Despite expected opposition from much of the Democratic caucus, Capito's bill could attract a handful of Democratic supporters. For example, Sen. Joe Manchin (D-WV) has said the two Mountain State lawmakers have agreed on past legislation, though he declined to comment on the specific bill.
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EPA Sees 2008 Ozone Implementation Rule As Template For Future NAAQS
May 6, 2015 | InsideEPA
By Stuart Parker
A senior EPA air official says the agency's recent rule setting long-awaited guidance on how states should craft plans for complying with the 2008 ozone national ambient air quality standard (NAAQS) will serve as a template for the flexibilities and limitations EPA will offer states in their plans for meeting a future revised ozone standard.
The implementation rule, which the agency signed in January and published in the March 6 Federal Register, is "a good bellwether" for the emissions reduction strategies that the agency would likely include in its eventual similar rule for a potentially stricter ozone NAAQS, said Anna Marie Wood of EPA's Office of Air & Radiation at an recent meeting of the agency's Clean Air Act Advisory Committee (CAAAC) in Arlington, VA.
EPA has proposed tightening the 2008 ozone standard of 75 parts per billion (ppb) to a limit within a range between 65 and 70 ppb, although it took comment on other levels for the standard, which it will issue later this year.
State officials and others have long urged EPA to issue revised NAAQS and updated implementation guidance at the same time, saying the implementation rules offer much-sought regulatory certainty on what air pollution control measures states can include in state implementation plans (SIPs) -- blueprints for attaining NAAQS.
But Wood told CAAAC it will not be possible to issue the new ozone NAAQS and implementation guide at the same time later this year. Issuing an implementation rule alongside a NAAQS standard would be "nearly impossible," Wood said, and EPA instead aims to issue the rule within two years of the new standard.
Although the fact that the agency will not issue the revised ozone limit and implementation guidance simultaneously is a set-back for states, Wood said at the April 22 meeting that the 2008 implementation rule offers a template for what state and local air regulators can expect to see in the guidance EPA will eventually write for the 2015 standard.
The rule provided some additional flexibility for how to craft their SIPs, but backtracked on some options due to concerns they were unlawful under the Clean Air Act. The rule outlines important provisions including deadlines for the plans; allowable emissions control strategies; and various other elements including criteria for states to show "reasonable further progress" (RFP) in reducing ozone-forming emissions.
The new implementation rule makes a number of key changes to previous practice, Wood said. It extends the summertime ozone monitoring season -- the period when ozone is formed by hot conditions -- in 35 states to account for a stricter standard; introduces a new Federal Reference Method -- which is EPA's official air monitoring method -- and revises the existing ozone monitoring network to account for more nonattainment areas under the tougher standard.
The rule further grandfathers prevention of significant deterioration (PSD) air permits that were being processed at the time new NAAQS were adopted from having to meet the stricter 2008 limit.
It also sets a deadline for "exceptional events" waiver requests that would allow states to rely on the latest available data, covering 2013 through 2016. EPA's exceptional events policy allows states to ask the agency to discount from the NAAQS designations process monitoring data collected during "exceptional" conditions such as sandstorms or wildfires that cause pollution levels to spike, reducing the chances of a "nonattainment" designation.
Nonattainment status can lead to states imposing costly pollution controls on industrial sources of ozone-forming emissions to cut pollution and attain the NAAQS. Critics say this status drives away businesses, and EPA's opponents warn that tightening the ozone limit will create many more nonattainment areas.
SIP Preparation
When EPA issued its proposed version of the 2008 ozone standard implementation rule, it floated several mechanisms for states to ease SIP preparation, a process state regulators frequently complain is onerous and duplicative. EPA is also trying to clear a backlog of hundreds of SIP submissions at its regional offices.
The proposal allowed states to consolidate various SIP submittal deadlines, but EPA in the final rule dropped that approach after warnings from public commenters that it might not be legal.
EPA in the final rule also cited recent precedent from the U.S. Court of Appeals for the District of Columbia Circuit, in which the court ruled unlawful a 2012 ozone NAAQS "classifications" rule that allowed states to take several months longer than previously to come into attainment with an ozone standard.
The agency allowed states until the end of a calendar year to come into attainment so they could rely on the latest air quality monitoring data to show their compliance.
The D.C. Circuit, however, agreed with environmentalists that the approach was unlawful. In the final SIP rule, EPA reacted to that ruling, stating, "EPA believes that the recent ruling by the D.C. Circuit Court on the Classifications Rule impacts the level of flexibility EPA is able to provide regarding SIP due dates."
In the final rule, EPA opted not to include various measures it floated for states in the proposed version of the rule to ease compliance. For instance, EPA had proposed to in certain circumstances allow states to cut emissions of nitrogen oxides (NOx), an ozone precursor, in lieu of mandated cuts of volatile organic compounds (VOCs) -- chemicals that also lead to ozone formation. But the agency did not now allow this in the final rule.
Under the NAAQS program, states are required to submit rate of progress plans showing they are meeting requisite targets to reduce ozone precursors. EPA had proposed that a mandatory 15 percent cut in VOCs could be met instead with NOx reductions in areas where states believe that to be more effective at reducing ozone, given different mixtures of sources and differing atmospheric chemistry. EPA said in the final rule that legal support for modifying its existing guidance on this issue needs to be "further explored" before such a change can be made.
EPA also proposed "alternative" approaches for states to meet the RFP requirement, such as allowing states to win credit toward RFP for reductions in different chemical types, or "species," of VOCs based on their ozone-forming potential. Another option was for states to use an approach to RFP based on percentage reductions in ambient pollutant concentrations, as opposed to more specific, fixed annual reductions in VOCs and NOx.
Regulatory Flexibilities
The agency did not, however, scale back all the flexibilities it proposed. For example, the agency finalized an option for states to use a baseline year other than 2011 from which to measure RFP. States must select a baseline year between 2008 and 2012, and justify it as appropriate. In the event that a pre-2011 baseline year is selected, states must make additional annual 3 percent emission reductions after the initial 6-year period for which RFP must be demonstrated, which EPA says ensures that sufficient progress is made.
Also, EPA finalized a "re-designation substitute" to end "anti-backsliding" measures in areas that have violated the 1997 NAAQS. This would take the place of a formal re-designation to attainment status for the old standard. Environmentalists faulted the measure, but EPA insists that the end result is the same and the concept is legal.
The final rule further revoked for all purposes the prior ozone NAAQS, set in 1997 at 80 ppb but expressed for regulatory purposes as 84 ppb. EPA earlier attempted to partially revoke the old NAAQS for the purposes of "transportation conformity" only, but was again rebuffed by the D.C. Circuit on this issue. Transportation conformity requires that state transportation projects, such as road building, not result in NAAQS violations.
EPA's total revocation of the 1997 ozone standard therefore could set a precedent for revoking the 2008 standard if the agency adopts a new, potentially more-stringent, NAAQS in the fall.
EPA in its 2008 NAAQS implementation rule lists requisite anti-backsliding measures for areas that violated the 1997 NAAQS that aim to ensure air quality cannot worsen as a result of shifting to a new NAAQS. These include "contingency measures" that states must take in case they miss regulatory emissions reduction targets, and "section 185 fees" levied on industry in the event that NAAQS are not attained.
California's San Joaquin Valley air district has already filed suit over the implementation rule. The district separately has floated a draft legislative proposal for Congress that it says would ease implementation of a potentially stricter EPA ozone NAAQS the agency is considering. The plan would give certain areas out of attainment with the standard more time to cut pollution and meet it.
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SAB Urges EPA To Improve Water CCL Process' Transparency, Efficiency
May 6, 2015 | InsideEPA
By Amanda Palleschi
EPA's Science Advisory Board (SAB) is urging the agency to make its processes for evaluating which contaminants may need regulation under the Safe Drinking Water Act (SDWA) more efficient and transparent by streamlining the timing of various regulatory processes, better explaining the agency's decision-making process and scaling back the number of contaminants it considers for regulation to between 20 and 50.
SDWA requires EPA to develop periodically a list of contaminants not currently subject to drinking water standards, and then make determinations for at least five contaminants as to whether they should be regulated.
The agency published Feb. 4 in the Federal Register a draft of its fourth candidate contaminant list (CCL) which included 100 chemicals or chemical groups and 12 microbial contaminants. Forty items on the draft list were carried over from the CCL3 after the agency failed to make a determination on them.
EPA uses its CCL process in concert with its unregulated contaminant monitoring rule (UCMR), also required under SDWA, to gather occurrence data for contaminants. It then takes that data to make determinations about what contaminants might be included on the list.
The agency has asked SAB for recommendations on whether the draft CCL4's support documents are "clear and transparent," whether any additional, peer-reviewed information or data collected should be used in the process, whether any contaminants currently on the draft CCL4 might not merit inclusion in the list and whether there are contaminants not currently included in the draft that should be listed.
Most SAB members speaking at an April 29 meeting found room for improvement in all areas, especially pointing out the need for greater transparency and streamlined actions -- criticisms that drinking water utilities have also raised about the current approach.
For example, Lloyd Wilson, a research scientist with the New York State Department of Health, asked EPA CCL4 team leader Meredith Russell what role the UCMR3 data -- which wraps up its collection period this year -- played in creating the draft CCL4 list.
"It wasn't clear in the documentation, [the UCMR3]'s role and it's not being used for this particular list, but the timing is such that UCMR data will be finalized five to six months from now," he said. "My gut reaction is, it seems a shame we can't use data points from UCMR3 data that already exists and use it to look at the quality of this list. I don't know how to reconcile that based on policy and procedure but it seems a shame there is a larger data set not being used."
Ongoing Monitoring
Russell explained that UCMR 3 data was not used to inform CCL4 because the monitoring is ongoing until December 2015, then laboratories have at least six more months to submit their data and have a chance to review it, meaning EPA won't take a look at the UCMR3 until 2016.
But the Government Accountability Office (GAO) has previously urged the agency to speed up its UCMR process, including a shorter period for contaminant monitoring and contaminant selection.
The agency has previously said it is considering shorter monitoring periods and more selective criteria for choosing contaminants in the fourth iteration of the UCMR.
Kellogg Schwab, a work group member from Johns Hopkins University, pressed EPA to better explain its decision-making process behind which contaminants are included and excluded from the list.
"We can still do better on our list, of what ends up in there, but we have to have a transparent communication about why things are on the list and why they're not, because the explanation is not being carried forward," Schwab said, adding that explanations about why contaminants are not added are almost "more important."
Marylynn Yates, of University of California-Riverside, suggested that EPA could be more transparent in its draft when it comes to decisions made "on the back end" such as sensitivity analyses.
For example, "why give something causing pneumonia a 5 [ranking in terms of public health threat] and something that causes you to go to the hospital a 4? What are the bases for those and the decisions about where those break points are?" she said. "Until we understand that it's just gonna be, 'what's your favorite organism?' I would plead a huge amount of attention to the back end and spending the time it takes to really understand how these calculations are being done and the implications of assumptions driving the calculations."
Kristina Mena, of the University of Texas Health Science Center, echoed prior calls from water utility groups to create a "prioritization" scheme in the CCL process, where EPA would come up with a "top 20 or 50" most important contaminants before making the determination for five of those contaminants. Mena suggests EPA could do so while maintaining its current "master universe" of chemicals for consideration but added it would be good to see which ones EPA thinks are "really important."
The American Water Works Association (AWWA) similarly suggested that future CCLs should contain between 20 to 50 compounds to increase the likelihood that EPA could study most of those, and should not include on that list compounds where monitoring results from the UCMR had zero or few detections nationally.
The group also took issue in its April 3 comments on the draft CCL4with EPA carrying over too many chemicals from the CCL3 into the CCL4. "A CCL process that results in an ever growing list does not help EPA or others studying these compounds focus their efforts, from research or science policy perspectives," the group said in its written comments.
But Mena said she had "no problem with carrying over" so long as EPA puts in place a prioritization process.
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Carbon Dioxide Hits New Milestone
May 6, 2015 | The Hill - E2 Wire
By Timothy Cama
Global carbon dioxide levels in the atmosphere surpassed 400 parts per million in March for the first time on record, federal researchers said.
The National Oceanic and Atmospheric Administration (NOAA) said Wednesday that the global average represents a new milestone in carbon dioxide concentrations from human activities like burning fossil fuels.
The 400-parts-per-million milestone first came to the Arctic in 2012 and to the NOAA’s Mauna Loa Observatory in Hawaii in 2013.
“It was only a matter of time that we would average 400 parts per million globally,” Pieter Tans, lead scientist of NOAA's Global Greenhouse Gas Reference Network, said in a statement, calling the level “a significant milestone.”
“This marks the fact that humans burning fossil fuels have caused global carbon dioxide concentrations to rise more than 120 parts per million since pre-industrial times," he said. “Half of that rise has occurred since 1980.”
Carbon dioxide is the most common greenhouse gas that is believed to warm the planet.
Some scientists and environmentalists have said in recent years that a global carbon level of 350 parts per million is the maximum level to prevent catastrophic global warming. Others put the threshold at 400 or 450 parts per million.
Researchers believe the last time global carbon exceeded 400 parts per million was during the Pliocene Epoch, 3 million to 5 million years ago.
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Oil Train Derails, Catches Fire in North Dakota
May 6, 2015 | PoliticoPro - Whiteboard
By Heather Caygle and Kathryn A. Wolfe
A BNSF train carrying crude oil derailed and caught fire this morning, causing the evacuation of Heimdal, N.D., a small town about two hours out of Bismarck.
News reports say the train derailed around 7:30 this morning, causing six to 10 cars to catch fire.
“It looks a lot like Casselton,” Wells County Emergency Manager Tammy Roehrich told the Grand Forks Herald, referring to the dramatic oil train derailment and explosion that occurred outside that North Dakota town in December 2013. She told local media that about 35 people had left the town.
Acting Federal Railroad Administrator Sarah Feinberg said she was dispatching an investigative team to the crash site.
The accident occurred five days after DOT issued a regulation meant to lessen the risk of crude-by-rail traffic, with measures including tougher construction standards for tank cars, mandated phase-outs for older cars and requirements for advanced braking systems. But some members of Congress want to require even tougher measures. -
FRA Sends 10-Person Team to North Dakota Derailment
May 6, 2015 | PoliticoPro - Whiteboard
By Heather Caygle
The Federal Railroad Administration has dispatched a 10-person team to the site of a fiery oil train derailment in North Dakota, acting Administrator Sarah Feinberg said in a statement.
"A crude oil train has derailed near Heimdal, North Dakota this morning, resulting in a large fire involving several tank cars. The town of Heimdal is being evacuated," Feinberg said. "The FRA has deployed a ten person investigation team to the site and will be conducting a thorough investigation into the cause of the accident."
Feinberg said the latest derailment further underlines the need for tougher tank car standards like DOT unveiled last week.
"Today’s incident is yet another reminder of why we issued a significant, comprehensive rule aimed at improving the safe transport of high hazard flammable liquids," she said. "The FRA will continue to look at all options available to us to improve safety and mitigate risks.”
BNSF said so far there have been no injuries, but it confirmed reports of fire at the scene. There are as yet no official estimates of the number of tank cars involved, but BNSF said the cars are unjacketed CPC-1232s. -
N.D. Town Evacuated Following Oil Train Derailment
May 6, 2015 | E&E - Greenwire
The town of Heimdal, N.D., was evacuated today after an oil train derailed and caught fire.
Ten cars of the Burlington Northern-Santa Fe Railway train went off the tracks in a rural area about 2 miles from Heimdal.
No injuries had been reported, but 35 people have left Heimdal as a precaution, said Wells County Emergency manager Tammy Roehrich.
The Federal Railroad Administration has sent a team to investigate the cause of the derailment.
"Today's incident is yet another reminder of why we issued a significant comprehensive rule aimed at improving the safe transport of high hazard flammable liquids," acting Federal Railroad Administrator Sarah Feinberg said. "The FRA will continue to look at all options available to us to improve safety and mitigate risks" (CBS News, May 6). -- AW
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Rail Industry Eyes Tank Car Challenge
May 6, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
Norfolk Southern Corp.’s CEO told the Wall Street Journal the railroad industry will “challenge” the administration’s newly-minted tank car rule, though he said just how remains up in the air.
Charles W. “Wick” Moorman told the paper in an interview Tuesday — before today’s fiery derailment in North Dakota — that the industry will either petition DOT or challenge the rule outright in court.
“There is a lot of discussion going on in the industry about how to challenge this,” Mr. Moorman said. “I’m sure it will be challenged.”
Freight railroads have been particularly unhappy with a portion of the rule that would mandate ECP braking systems on certain tank cars.
Ed Greenberg, a spokesman for the Association of American Railroads, said "no formal decision" has yet been made and that the industry is continuing to "review the rule."
But the administration is already prepared for a challenge. In announcing the rule, Transportation Secretary Anthony Foxx said the administration believes "strongly that our rule will stand up — all parts of it.” -
Dentons' Rubin Talks Oil-By-Rail Politics, Impact of DOT Rule on Railways and Energy Production
May 6, 2015 | E&E - TV
How are lawmakers responding to last week's rollout of the Department of Transportation's final rulemaking on crude-by-rail safety? During today's OnPoint, James Rubin, counsel in Dentons' global energy sector, discusses the politics of the plan and gives his expectations for subsequent rules. He also weighs in on the rule's legal defensibility.Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Jim Rubin, counsel in Dentons' global energy sector. Jim, thanks for coming back on the show.
James Rubin: Always a pleasure.
Monica Trauzzi: So, Jim, late last week, the Department of Transportation released its highly anticipated final rules for crude by rail. It's a nearly 400-page document. Is it an effective response to the multiple recent derailments we've seen, both in this country and in Canada?
James Rubin: Well, it's a response. Effective will be determined by what happens next in the rule. First of all, it's a comprehensive response to the issues that DOT was looking at. They, you know, broke it down between operational controls, tank car standards and classification, but there are other issues that are out there that DOT still hasn't ruled on. There's securement, which is make sure the trains don't roll down the hill. There is their oil pollution plan, contingency plans. There are other -- and there's certain things that they didn't look at at all, so it is a very positive first step in reacting to ways of dealing with the increased traffic and trying to increase the safety standards. Whether it will be effective or not will -- I guess will determine it, but it's not -- certainly not the end. I think the -- Secretary Foxx said basically expect more.
Monica Trauzzi: So subsequent rulemaking. What are the most significant changes that you see from what we saw in the draft proposal from DOT?
James Rubin: It's interesting. This is a situation where DOT, or PHMSA, the agency that wrote the rule -- it's interesting, it's not their agency that runs the railroad. That's FRA. PHMSA definitely stepped back where it was getting criticism from the industry that it was going too far, that they couldn't build the cars fast enough, they couldn't retrofit fast enough, the cost would be too great. They made -- walked back up at places. For instance, the standards they picked for the new cars, it's not the top option, the most strict option. They made a point why, that it was not cost-effective. They walked back a bit on the retrofits. They actually chose the least of the three standards in terms of strictness, and they also gave it more time. And part of that is to actually coordinate with Canada, which is very interesting because Canada was a bit ahead of things. So they slowed it down a bit because Canada slowed down.
Other changes, they've -- they didn't change the emergency braking system for certain types of trains, which is a big issue for the industry still. They're going to be very, very upset about the cost of that. They try to make a distinction between the types of trains that would get these, but I think the biggest changes were really the walking back and the slowing down. I think that's where you're going to get a lot of flak from the environmental groups.
Monica Trauzzi: Absolutely, and we're already hearing that. One of the key sticking points is the way that they handle the old tank cars. Critics of the rules say these cars should be completely phased out and quickly, and there's legislation in Congress that would do as much.
James Rubin: And some train -- and some companies like BNSF are actually taking action now and trying to phase them out, so there's a lot going on voluntarily.
Monica Trauzzi: Yeah, so is the technology that's available to upgrade the cars rather than phase them out, is that good enough?
James Rubin: Well, again, the -- the retrofit technology, there's -- it's not brand-new technology that has to be out there. There's plenty out there. The question is do you have the capacity to fix that many cars and how quickly. The new standard comes in October, so we're talking about the new technology there because they're expecting people to start building these trains, and to the extent, you know, the industry already moved from the really old 111s, the ones that were leaky, they were concerned about, to another standard, and now this rule just kind of bulks up the industry standard. So it's not -- I think the issue here was there's some folks who just don't think these old train cars should be on the road -- on the tracks at all, and that's -- there was an environmental lawsuit in the 9th Circuit about this. A lot of folks in Congress and the Democrats started pushing against this, but the reality is you can't just take these rail cars off and move the crew. ... So something has to be on the rails. The question is for how long, and this is all about how long to keep those on. It's a pretty aggressive change that we're talking about, two to three years before these old 111s are off and then the next standard is in five years.
Monica Trauzzi: You used the word aggressive. Is it something that industry can meet?
James Rubin: Well, of course, there are plenty of industries saying they can't, but I think DOT's trying to thread the needle here and figure out what the most amount of time they can give is. Canada picked a very similar time, and I think the argument is that industry could meet this. The industry is saying that the shop time, you know, basically not enough companies are able to make these things and the cost, it might be really pushing it. It might -- what it would do is it would, you know, drive down -- it would drive up the price because there would be fewer trains ... out there. But I think the conclusion from DOT is that it's doable.
Monica Trauzzi: What are the impacts of the rule on the railway system and energy production?
James Rubin: That's a really good question. The speed is really the issue because -- and that was a very controversial thing that DOT, again, walked back a little bit on. They kind of adopted the industry standard about how fast these trains could go, and these are only talking about -- it introduces a whole new acronym -- HHFT, which does not roll off the tongue. I can't even think of how to pronounce it, but these trains have to go 50 miles an hour everywhere, and that's based on a kind of voluntary standard and order, but the -- but certain -- at certain areas where there are crowded areas of urbanization, they have to go slower than that, and the question is, if you slow down these trains, what does everybody else? So the big concern about the grain and all the other trains, because this is a very small part of the overall U.S. rail. So there is a very big concern still even these speed limits they picked are going to slow the whole system down, and that could increase the price for everything, including energy. In terms of how this rule affects energy price generally, we're only talking about refined fuel at this point, and it's unclear whether this rule will have a great impact on the price of gas. It's going to be -- it might change how you transport it, but really the price of oil is really determining where it goes and how it goes.
Monica Trauzzi: We're already hearing about a potential court challenge by industry. How --
James Rubin: And the NGOs.
Monica Trauzzi: Everyone wants to sue, but how legally defensible is the rule?
James Rubin: Now, this is, unlike some of the rules that we've been hearing about in the paper where there's questions about authority and whether we should even regulate, this is really much more in the weeds of a regulatory challenge where you've got both sides saying you've gone too far and you've got DOT somewhere in the middle. And they've really worked this issue. I think every issue that's going to be raised, DOT has a defensible claim to. There'll be issues about whether they pick the right cost or not. The RIA isn't even out for this yet, which is strange. Usually it comes with a rule, so we don't know exactly how they pick some of these costs, but because it's more of a technical rule now in a sense than some of the things we've been hearing about, I would think that the DOT's going to have a very decent chance of getting discretion and defending itself.
Monica Trauzzi: All right, and so we shouldn't expect this rule to spark the same level of controversy as some of the other rules that the administration has put out.
James Rubin: Again, you know, this isn't a question of authority. DOT ... has federal authority and it's not a question of whether we should do it. It's clearly a problem out there people are trying to address. Bipartisan support to actually do something to the rule, to try to force the rule faster. I think it'll be controversial, but it'll be controversial because it's a big important, you know, trains running through your neighborhood kind of a thing and it's made into a boogeyman. I think it will be drawn out like other regulations, but I don't expect it to get any kind of -- the acrimony that you've seen in the other rules that are going to be coming out.
Monica Trauzzi: All right. We'll end it there. Thank you for coming on the show.
James Rubin: Thank you. Thank you very much.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
[End of Audio]
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