Preview Newsletter
ACC AM May 11
-
Hearing to receive testimony on S. 883, the American Mineral Security Act of 2015
May 12, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: Dirksen Senate Office Building, Room 366/ 10:00 AM -
Oversight Hearing on “The Obama Administration’s CEQ Recently Revised Draft Guidance for GHG Emissions and the Effects of Climate Change.”
May 13, 2015 | The House Committee on Natural Resources
Location: 1324 Longworth House Office Building/ 10:00 AM -
The 35th Anniversary of the Staggers Rail Act: Railroad Deregulation Past, Present, and Future
May 13, 2015 | U.S. House of Representatives Committee on Transportation and Infrastructure
Location: 2167 Rayburn House Office Building/ 10:00 AM -
Discussion Drafts Addressing Hydropower Regulatory Modernization and FERC Process Coordination under the Natural Gas Act
May 13, 2015 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM -
Hearing on Energy Infrastructure Legislation
May 14, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: Location not specified/ 10:00 AM -
Legislative Hearing on H.R. 1644
May 14, 2015 | Natural Gas Intelligence
Location: 1334 Longworth House Office Building/ 10:00 AM -
(ACC Mentioned) House, Senate Lawmakers Work to Complete Legislation ‘Modernizing' TSCA by Year's End
May 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
House and Senate lawmakers working to modernize the Toxic Substances Control Act say their goal is to approve a final bill by the end of the year. “I'm very optimistic that we can get TSCA reform legislation through the House this year. Together with all the great work the Senate has done, there's real interest that this is the year we can finish the job,” Rep. John Shimkus -
(ACC Mentioned) California Again to Place Bisphenol A On List for Reproductive Toxicants
May 11, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
A scientific advisory panel for California's Office of Environmental Health Hazard Assessment has decided bisphenol A should be re-listed as a reproductive toxicant under the state's Proposition 65. The decision came at a May 7 meeting in Sacramento after OEHHA's Developmental and Reproductive Toxicant Identification Committee reviewed... -
(ACC Mentioned) Some Enviro-Friendly Items Hurt Recyclers' Bottom Line
May 8, 2015 | The Houston Chronicle
By Sarah Scully
As low commodity prices have left recyclers short on cash to invest in technological upgrades, product manufacturers are coming out with new types of packaging that make business even tougher. These products include lighter-weight plastic bottles, resealable pouch containers and other items that are popular with consumers... -
(ACC Mentioned) California Mulling Over More Stringent Warnings For Products With BPA
May 10, 2015 | Tech Times
By Rhodi Lee
Canned goods and plastic drinking bottles are just among the commonly used items that contain the chemical bisphenol-A, also known as BPA. Soon, these BPA-containing products that are distributed in California might be required to have a label that discloses one of the harmful effects associated with the chemical: reproductive harm... -
(ACC Mentioned) EPA Issues Interim Guidance Concerning Antimicrobial Data Requirements
May 8, 2015 | JD Supra Business Advisor
By Lisa Burchi and Lisa Campbell
On Thursday, April 30, 2015, the U.S. Environmental Protection Agency (EPA) issued interim guidance that it intends to clarify its toxicology data requirements for antimicrobial pesticides used on food contact surfaces. In addition, EPA issued a letter to antimicrobial registrants that EPA states is intended “to summarize how the Agency has been... -
House Panel On Track To Re-Examine Draft TSCA Bill
May 11, 2015 | E&E Daily News
By Sam Pearson
House lawmakers will hold a markup of a discussion draft updating the nation's chemical safety law this week, a spokesman for Rep. John Shimkus (R-Ill.) said Friday. Shimkus has worked on a scaled-down approach to fixing the 39-year-old chemicals law, in an attempt to find a bipartisan consensus that eluded House lawmakers last year. -
UPDATED: Understanding Preemption in the Lautenberg Act
May 8, 2015 | Environmental Defense Fund
By Richard Denison
[*UPDATED 5-8-15: This is a new version of an earlier post that I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.] By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances... -
Draft IRIS Analyses of Ammonia, Sterilizer, Trimethylbenzenes Critiqued by EPA Advisers
May 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Draft analyses and conclusions reached by the Environmental Protection Agency on the human health effects of ammonia; inhaled ethylene oxide, a sterilizer; and trimethylbenzenes, components of gasoline, are generally well founded but could be improved, the agency's Science Advisory Board said. -
DuPont's Teflon Unit Neighbors Worry Chemours Won't Pay Medical Monitoring Bills
May 11, 2015 | BNA Daily Environment Report
By Jack Kaskey
DuPont Co.'s plan to spin off its Teflon unit is spurring concern on the West Virginia-Ohio border that the new company won't cover medical payments for residents sickened by a chemical long used at the production plant. In 2004, as a result of a class action filed three years earlier, DuPont agreed to pay $235 million to monitor residents'... -
Formaldehyde Standards
May 11, 2015 | The New York Times - Op-Ed
By David Fischer
“U.S. to Put Curbs on Formaldehyde” (front page, May 4) highlights the need for a national standard for formaldehyde emissions from composite wood products sold in the United States. Formaldehyde-based resin manufacturers have been on record supporting a national standard based on sound science. Formaldehyde has... -
California May Require Warnings On Products Containing Chemical BPA
May 8, 2015 | Reuters
By Sharon Bernstein
Plastic drinking bottles, canned goods and other items containing the chemical bisphenol-A (BPA) distributed in California might soon be required to carry a label disclosing that the compound can cause reproductive harm to women. Thursday's decision by a board of scientific experts to include BPA on a list of chemicals... -
(ACC Mentioned) Dow and Sustainability Inseparable
May 10, 2015 | Midland Daily News
By Dr. Stacy L. Daniels
I don’t know whether to smile in bemusement, or to take umbrage, over your recent editorial (Our view: Dow presses on with sustainability goals Tuesday, April 21, 2015). It starts out well, “Long-time Midlanders know that Dow has been working on sustainability programs for many years,” yet ends oddly, “Years ago, it would have been strange to talk ... -
Dem Support For Pipeline Compromise Under The Microscope
May 11, 2015 | E&E Daily News
By Hannah Northey
Just how much Democratic support House Republicans can muster for a comprehensive energy bill by compromising on legislative language to fast-track natural gas infrastructure could become clear this week. The House Energy and Commerce Subcommittee on Energy and Power is slated to take up a legislative draft on ... -
Senators To Review Funding Boosts For Sage Grouse, Drilling Fees
May 11, 2015 | E&E Daily News
By Phil Taylor
Senate appropriators on Wednesday will review the Bureau of Land Management's $1.25 billion fiscal 2016 budget request, a proposal that seeks new fees on oil and gas drilling and would roughly quadruple funding for an imperiled Western bird. BLM Director Neil Kornze will defend the budget before the Interior, Environment and Related Agencies... -
Senate Committee Announces More Bills, Hearings as Broad Energy Bill Takes Shape
May 11, 2015 | BNA Daily Environment Report
By Ari Natter
The Senate Energy and Natural Resources Committee announced a series of hearings on dozens of energy bills as a comprehensive energy package being crafted by committee chairman Sen. Lisa Murkowski (R-Alaska) begins to take shape. The hearings, focused on three of the four planned titles for the broad energy bill... -
Senate Panel To Discuss 22 Infrastructure Proposals For Broader Bill
May 11, 2015 | E&E Daily News
By Nick Juliano
The Senate Energy and Natural Resources Committee this week will continue its work on a bipartisan energy bill with a hearing to consider nearly two dozen proposals aimed at promoting natural gas pipelines, rooftop solar panels, "smart grid" technology and related energy infrastructure needs. The agenda for Thursday's infrastructure hearing... -
Dem Senators Fight With Foresters Over Climate Rule
May 8, 2015 | The Hill - E2 Wire
By Devin Henry
Democratic Massachusetts Sens. Elizabeth Warren and Ed Markey have picked a fight with the biomass industry over the role plant-based energy plays in an Obama administration climate change plan. Warren and Markey wrote Environmental Protection Agency Administrator Gina McCarthy on Friday asking her to reconsider the way the... -
EPA Should Impose Moratorium on Role Of Biomass in Power Plan, Senators Say
May 11, 2015 | BNA Daily Environment Report
By Ari Natter
The Environmental Protection Agency should impose a moratorium on the use of biomass as renewable energy in the Clean Power Plan, Sens. Ed Markey (D-Mass.) and Elizabeth Warren (D-Mass.) said May 8, arguing that including the fuel could undermine the plan's intended purpose of reducing carbon dioxide emissions from power plants. -
EPA, FERC Need Reliability Valve Agreement On Clean Power Plan, Electricity Utilities Say
May 11, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency and the Federal Energy Regulatory Commission should consider a formal agreement to guide application of any reliability safety valve included in the Clean Power Plan, energy experts said. A memorandum of understanding between the two agencies should detail how any reliability safety valve would be... -
Window Narrows For FERC To Suggest Reliability Tools
May 11, 2015 | E&E Daily News
By Rod Kuckro and Emily Holden
Time is running short for the Federal Energy Regulatory Commission to weigh in on how to address reliability concerns arising from state compliance with U.S. EPA's Clean Power Plan, although the industry seems to be coalescing around tools that might be needed. One FERC watcher thinks EPA will send the plan to the White House ... -
Growing California Cap-And-Trade Fund Attracts Surge Of Spending Proposals
May 10, 2015 | The Sacramento Bee
By Jeremy B. White
With California’s growing cap-and-trade program expected to yield a budgetary bonanza, lawmakers and interest groups have ample ideas for how to spend the money. Floating proposals ahead of a pivotal period for budget negotiations, they say they want to fund port improvements, pay for heavy-duty trucks and ferries, nurture urban... -
EPA Revises 'Tier 3' Fuel Emissions Rule To Resolve Regulatory Ambiguity
May 8, 2015 | InsideEPA
By Stuart Parker
EPA is moving to clarify terms in its Tier 3 fuels and vehicles regulation after industry groups warned that a recent rule intended to make noncontroversial amendments to the program in fact created confusion and potentially expanded regulatory requirements far beyond the existing community of entities covered by the Tier 3 rule. -
State Carbon Pollution Standards Differ
May 8, 2015 | Roll Call
By Lauren Gardner
The Environmental Protection Agency is set to finalize a suite of rules this summer limiting carbon pollution from new, existing and modified power plants. The regulations are all but guaranteed to solidify the country’s wholesale shift away from coal-fired generation to natural gas and renewables, a prospect that causes heartburn for states ... -
House Panel To Weigh NEPA Climate Guidance
May 11, 2015 | E&E Daily News
By Jean Chemnick
The House Natural Resources Committee this week will take aim at the Obama administration's new plan requiring all federal agencies to integrate climate change into their National Environmental Policy Act reviews for projects under their jurisdiction. Wednesday morning's hearing will examine a revised draft guidance the White House Council... -
California Businesses Ask Court to Reject Auction of Greenhouse Gas Emissions Credits
May 11, 2015 | BNA Daily Environment Report
By Laura Mahoney
If a state trial court judge's 2013 ruling upholding the California Air Resources Board's auction of greenhouse gas emissions credits is allowed to stand, state agencies would be free to invoke the need for regulations as a way to skirt constitutional limits on new taxes and raise huge amounts of revenue, the California Chamber of Commerce said... -
3rd Circuit Weighs 'Cumulative' Air Impacts In Suit Over State's Haze Plan
May 8, 2015 | InsideEPA
By Stuart Parker
U.S. Court of Appeals for the 3rd Circuit judges at oral arguments in litigation over Pennsylvania's regional haze air pollution plan pressed EPA on why it did not force the state to consider "cumulative" emissions impacts in approving the plan, in a case that could set an important precedent on the criteria the agency must use in reviewing such plans. -
EPA Approval Of Calif. Pesticide Plan Can Stand, Judges Rule
May 8, 2015 | E&E News PM
By Jeremy P. Jacobs
Federal judges today rejected a challenge from California community groups to U.S. EPA's approval of the state's plan to address air emissions stemming from pesticide use. The 9th U.S. Circuit Court of Appeals deferred to EPA's reasoning in a case that dates back to California's 1994 plan to combat ozone pollution. -
Chris Christie: ‘Global Warming is Real’
May 8, 2015 | The Hill - E2 Wire
By Timothy Cama
New Jersey Gov. Chris Christie broke slightly with many of the announced and potential Republican presidential candidates, saying that climate change is real and that humans contribute to it. “I think global warming is real. I don’t think that’s deniable,” Christie said at a Keene, N.H., event, according to MSNBC. “And I do think human activity... -
(ACC Mentioned) House Panel To Examine Effects Of Deregulation
May 11, 2015 | E&E Daily News
By Sean Reilly
Thirty-five years ago, freight railroads were hurting. Competition from trucks and pipelines was battering their business; tight federal regulation by the Interstate Commerce Commission made it difficult for them to freely set rates or shed unprofitable lines. During the 1970s, most major railroads in the Northeast, including the once-mighty Penn... -
(ACC Mentioned) Rail-Shipper Groups Urge Senate To Return Elliott To STB
May 8, 2015 | Progressive Railroading
Two trade associations representing rail shippers issued statements earlier this week in response to the Senate Committee on Commerce, Science and Transportation's vote to confirm the nomination of Daniel Elliott III to a second term on the Surface Transportation Board (STB). Consumers United for Rail Equity (CURE) and the American... -
FY16 Spending Bill Likely To Get Committee Approval
May 11, 2015 | E&E Daily News
By Sean Reilly
The House Appropriations Committee is set to approve a fiscal 2016 transportation spending bill Wednesday containing stiff cuts that are unlikely to survive once the legislation reaches the Senate. The House bill would trim overall discretionary spending for the Transportation Department by about 5 percent next year to $17.2 billion... -
House Panel To Examine Effects Of Deregulation
May 11, 2015 | E&E Daily News
By Sean Reilly
Thirty-five years ago, freight railroads were hurting. Competition from trucks and pipelines was battering their business; tight federal regulation by the Interstate Commerce Commission made it difficult for them to freely set rates or shed unprofitable lines. During the 1970s, most major railroads in the Northeast, including the once-mighty Penn ...
Congressional Hearing
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
Full Text of Stories Below
-
Hearing to receive testimony on S. 883, the American Mineral Security Act of 2015
May 12, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: Dirksen Senate Office Building, Room 366/ 10:00 AM
-
May 13, 2015 | The House Committee on Natural Resources
Location: 1324 Longworth House Office Building/ 10:00 AM
-
The 35th Anniversary of the Staggers Rail Act: Railroad Deregulation Past, Present, and Future
May 13, 2015 | U.S. House of Representatives Committee on Transportation and Infrastructure
Location: 2167 Rayburn House Office Building/ 10:00 AM
-
May 13, 2015 | Energy & Commerce Committee
Location: 2123 Rayburn House Office Building/ 10:00 AM
-
Hearing on Energy Infrastructure Legislation
May 14, 2015 | U.S. Senate Committee on Energy & Natural Resources
Location: Location not specified/ 10:00 AM
-
Legislative Hearing on H.R. 1644
May 14, 2015 | Natural Gas Intelligence
Location: 1334 Longworth House Office Building/ 10:00 AM
Note:
H.R. 1644 (Mooney), To amend the Surface Mining Control and Reclamation Act of 1977 to ensure transparency in the development of environmental regulations, and for other purposes. "Supporting Transparent Regulatory and Environmental Actions in Mining Act (STREAM Act)."
-
May 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
House and Senate lawmakers working to modernize the Toxic Substances Control Act say their goal is to approve a final bill by the end of the year.
“I'm very optimistic that we can get TSCA reform legislation through the House this year. Together with all the great work the Senate has done, there's real interest that this is the year we can finish the job,” Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Subcommittee on Environment and the Economy, told Bloomberg BNA in an e-mail.
“A modernized TSCA will be a win-win for consumer safety and our economy,” Shimkus said. “I'm more hopeful than ever that we can reach a compromise that would make Sen. Lautenberg proud.”
“We're moving in tandem with the House,” Sen. Tom Udall (D-N.M.) said during a phone-in “town hall” meeting. “If we can get something done in summer and iron out the differences, my goal is to get this done this year.”
Udall and Sen. David Vitter (R-La.) are the primary sponsors of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S.. 697). More than a third of the Senate's Republicans and Democrats were backing the bill as of May 7 (89 DEN A-1, 5/8/15).
“My goal is to get this done this year.”
Sen. Tom Udall (D-N.M.)
A side-by-side comparison of the Senate bill and House draft prepared by Bloomberg BNA shows similarities and differences between the legislative efforts (see chart in this issue).
Changes made by the Senate Environment and Public Works Committee during its markup of S. 697 were crucial to securing the support of many Democrats, Sen. Tom Carper (D-Del.) and other Democrats said at a May 7 news conference.
Michael Walls, vice president of regulatory and technical affairs at the previous hitAmerican Chemistry Councilnext hit., recently said the two bills would offer legislators two possible ways to accomplish the first major environmental legislative reform in 25 years (86 DEN A-14, 5/5/15).
The Clean Air Act was overhauled in 1990, and substantial amendments were made to the Safe Drinking Water Act in 1996.
A revised version of the draft TSCA Modernization Act, which Shimkus released April 7, will be marked up by the Environment and the Economy Subcommittee May 14, his office confirmed May 8.
Staff declined to answer questions about how the draft to be marked up will differ from the version the subcommittee discussed at an April 14 hearing (72 DEN A-13, 4/15/15).
Regulatory Predictability
During the May 1 town hall, Udall and Lynn Goldman, who from 1993-1998 directed what is now the Office of Chemical Safety and Pollution Prevention at the Environmental Protection Agency, discussed the more predictable regulatory environment they said S. 697 would foster.
“This moves us toward a predictable nationwide set of standards. We don't have that now,” Udall said.
States have been pursuing a multitude of regulatory actions addressing chemicals that are very difficult to predict, Goldman, now dean of George Washington University's School of Public Health, said.
Core problems with TSCA, such as the limits the law puts on the EPA's ability to share information with states, have led to a “scattershot” regulatory approach in which states restrict or ban a chemical without knowing information about the hazards its substitutes may pose, Goldman said.
“With a stronger law and stronger standards, we'll have a federal approach in which states—instead of moving out ahead of EPA—can move ahead as partners as they do with other environmental programs,” Goldman said. “It will provide a more predictable approach.”
Goldman described provisions of the Senate bill that would enable such partnerships.These include provisions in S. 697 that would authorize the EPA to obtain toxicity, exposure and other data on chemicals by order, consent agreement or through a regulation ordering the submission of data.
Under TSCA, the agency may obtain data through what are called Section 4 test rules. The threat of regulation also can spur companies to provide data through consent agreements.
Before the EPA may pursue a Section 4 rule, however, it must make several findings.
First, the agency must find that a chemical substance or chemical mixture presents an unreasonable risk to human health or the environment or that the chemical is produced in substantial quantities, which could result in substantial or significant human exposure or environmental release.
Second, the EPA must find data are insufficient to determine health or environmental risks and that therefore, testing must be conducted to obtain such data.
The challenge of proving a chemical presents an unreasonable risk when there are insufficient data available to determine its risk has made it challenging for the EPA to require data through Section 4 rulemaking.
Under S. 697, the EPA would have to develop a statement explaining why toxicity, exposure or other data are needed, what data are needed and by when. The agency would not have to make the determination that the chemical presents an unreasonable risk.
These provisions should make it easier for the EPA to obtain data, Goldman said.
Other provisions of S. 697 would enable the agency to share information, she said.
State Access to Data
Recalling her years at the EPA, Goldman said states rarely were able to see data the agency had, because so much of it was declared confidential business information.
“Even the names of the chemicals and the locations where they were made were kept secret,” she said. The inability of the EPA to share its information made it difficult for states to assess the risks their communities faced, Goldman said.
The section of S. 697 that addresses confidential business information describes marketing, specific formulation and specific use information that would be presumed to be kept confidential and information, such as the results of health and safety tests required by the agency, that would be publicly available.
S. 697 also would allow the EPA to disclose confidential information to specific parties such as federal or state agencies needing it for a specific enforcement purpose. States would have to safeguard the confidential information using procedures comparable to those the EPA uses, according to the bill.
“I think there would be a new partnership with the states,” Goldman said.
Safer Chemicals
Safer new chemicals and safer uses of new and existing chemicals should result from the bill, Udall and Goldman said.
TSCA requires, as would S. 697, that some basic information about a new chemical—meaning one that isn't on the inventory of chemicals made or sold in the United States—be submitted to the agency before the new chemical is manufactured.
Under TSCA, the new chemical may enter commerce automatically if the agency does nothing after 90 days.
“One of the things I found very frustrating was that if my staff got delayed or couldn't complete its review in 90 days, the chemical would get into commerce,” Goldman said.
Under S. 697, the EPA would be required to evaluate the new chemical and make a determination about its likelihood of being safe for intended uses.
“We [would] have a much tougher standard put into law,” Udall said.
At a separate American Bar Association function on May 4, Richard Denison, a senior scientist with the Environmental Defense Fund, said that provision in S. 697 would address a fundamental flaw in TSCA. He was referring to the provision in the bill that would require the EPA to make an affirmative decision that a new chemical is likely to be safe when used as intended, before allowing the new chemical to be manufactured.
The provision would take a passive system for evaluating new chemicals and make it an active process in which the agency must make specific conclusions, Denison said.
The House bill would not alter the new chemicals requirements of TSCA.
Safer Use of Chemicals
Goldman said the Senate legislation would result in the agency having more data to better protect workers or other members of the public who could be exposed to chemicals in particular ways.
For example, she said, a number of chemicals pose a health risk but only if absorbed through the skin.
S. 697 would more effectively allow the EPA to know whether the chemical has industrial, commercial or household uses in which it would be likely to contact skin, Goldman said
The EPA could then work with manufacturers to make sure workers wear gloves or that consumer products are sold with gloves to prevent dermal absorption, she said.
“Just the right gloves can prevent someone from being exposed to a cancer-causing agent or to something that might be toxic to the unborn fetus,” Goldman said.
“I don't think unfriendly amendments are going to get very far.”
Sen. Sheldon Whitehouse (D-R.I.)
Many Challenges Ahead
Notwithstanding the support that Goldman and an increasing number of Democrats are offering for the bill, many challenges remain not only to its passage, but to its implementation if it becomes law.
A few issues have dominated the public debates about the Senate bill, but many questions remain about the intent of the legislation's long and complicated text and how the EPA would implement its requirements, the Bergeson & Campbell law firm wrote in a recent analysis.
Despite the years of work already done on the Senate bill and the time spent on the House draft, neither would allow the U.S. to ratify either the Stockholm Convention on Persistent Organic Pollutants (POPS) or the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, often called either the Rotterdam or the PIC Convention.
The American Chemistry Council is among the trade associations that have long supported ratification of those U.N. treaties. The treaties affect international trade, but the U.S. cannot vote on issues before the parties to either convention. This means the U.S. is unable to vote for or against the inclusion of a chemical under either treaty.
Attorneys general have split along party lines in their support or opposition to the Senate bill (67 DEN A-3, 4/8/15).
With the exception of the Environmental Defense Fund, major environmental and health advocacy groups nationwide remain opposed to S. 697.
The Environmental Working Group opposes both the Senate bill and the House draft.
The Environmental Defense Fund also has raised concerns about the House draft, particularly the effect combinations of different sections of the draft would have.
For example, while state regulations are only preempted once the EPA issues a final rule, the House draft would establish a fast-track chemical assessment and regulation process driven by industry-requested-and-paid-for assessments, Denison said at the bar association briefing. That fast track process would result in state regulations being preempted more quickly than they would under the Senate legislation, he said (86 DEN A-14, 5/5/15).
States are beginning to focus on the House bill and have diverse perspectives on S. 697, Alexandra Dapolito Dunn, executive director and general counsel of the Environmental Council of the States, said at the May 4 bar association briefing.
Udall has said a floor debate on S. 697 could take several weeks, as senators seek to add amendments to it.
Sen. Christopher Coons (D-Del.) is expected to try to add the Sustainable Chemistry Research and Development Act, a bill he introduced in the last Congress. That bill, which did not move, would have directed the president to establish an interagency Sustainable Chemistry Program to promote and coordinate research, development, demonstration, technology transfer, commercialization, education and training activities.
During an April 28 markup of S. 697, Sen. Barbara Boxer (D-Calif.), ranking minority member of the Senate Environment and Public Works Committee, said she plans to bring more than a dozen amendments to the floor.
“There will be a lot of amendments,” Sen. Jim Inhofe (R-Okla.) said at a May 7 news conference.
Given the bipartisan support, however, Sen. Sheldon Whitehouse (D-R.I.) said: “I don't think unfriendly amendments are going to get very far.”
-
(ACC Mentioned) California Again to Place Bisphenol A On List for Reproductive Toxicants
May 11, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
A scientific advisory panel for California's Office of Environmental Health Hazard Assessment has decided bisphenol A should be re-listed as a reproductive toxicant under the state's Proposition 65.
The decision came at a May 7 meeting in Sacramento after OEHHA's Developmental and Reproductive Toxicant Identification Committee reviewed new epidemiological and toxicological evidence linking BPA and female reproductive toxicity.
OEHHA initially listed the chemical in April 2013 through an administrative process after the DART-IC had decided against adding the chemical to the list (78 DEN A-17, 4/23/13).
After the American Chemistry Council (ACC) launched a legal challenge to the administrative listing, OEHHA removed the chemical from the Proposition 65 list of chemicals. In December 2014, a state court ruled in favor of OEHHA's listing process, but ACC has since filed an appeal American Chemistry Council v. OEHHA, Cal. Ct. App., No. C079078, 4/21/15.
BPA is widely used to make polycarbonate plastics and epoxy resins. Exposure, which comes largely through food packaging and beverage containers, has been linked to developmental disorders and elevated risks for cancer, heart disease and diabetes.
California, 11 other states and Washington, D.C., have legal restrictions on the use of BPA in consumer goods.
U.S. Production Data
In 2011, the most recent year for which U.S. production volume data are available, 15 domestic facilities made or imported 2.3 billion pounds of BPA, according to information the facilities provided to the Environmental Protection Agency.
BPA also is registered in the European Union for production or importation in volumes ranging from 1 million to 10 million metric tons per year (2.2 billion to 22 billion pounds).
Chemical manufacturers that have made BPA in or imported it into the U.S. and the European Union include Bayer, DuPont, the Dow Chemical Co. and SABIC Innovative Plastics.
Proposition 65 is California's landmark right-to-know law, officially known as the Safe Drinking Water and Toxic Enforcement Act; voters approved it in 1986. Under the law, OEHHA must list chemicals identified as causing reproductive harm, birth defects and cancer.
Manufacturers of products containing listed chemicals may be required to warn consumers of exposure risks.
New Data Available Since 2009
New epidemiological and toxicological data have become available since 2009, when the DART-IC last considered adding BPA to the Proposition 65 list, OEHHA said in February in announcing the panel would reconsider the chemical. The new research examines the negative health effects of BPA at low doses.
“We strongly disagree with the DART-IC decision to list BPA under Proposition 65 as a female reproductive toxicant,” Steven G. Hentges of ACC's Polycarbonate/BPA Global Group said in a written statement. “The decision is not supported by the extensive scientific record presented to the committee and is completely contrary to explicit input provided by the U.S. Food and Drug Administration (FDA). In April, FDA's acting chief scientist submitted a letter to the DART-IC stating that the results of FDA's own comprehensive research ‘do not support BPA as a reproductive toxicant.’ ”
The North American Metal Packaging Alliance Inc. (NAMPA) also was dismayed with the decision to re-list the chemical.
Action Called Contradictory to Leading Findings
“Today's vote is contradictory to the findings of leading regulatory bodies throughout the world that have determined BPA to be safe at the levels used in food contact applications,” NAMPA Chairman John Rost said in a written statement. “The weight of the evidence is on the side of BPA safety.”
“DART-IC is only empaneled to look at hazard and therefore did not and cannot take into account actual exposure levels,” Rost said. “In fact, one member was reminded during discussions that the committee should not consider what human exposures actually are in their deliberation and vote. The hazard assessment decision the panel made was disappointing but not a surprise considering the restrictions placed on the members to completely ignore exposure. Everything is toxic at some level and the panel's vote today proved that too narrow of a focus will lead to erroneous conclusions that misrepresent scientific evidence.”
In a written statement, Oakland, Calif.-based advocacy group the Center for Environmental Health said BPA is a well-studied chemical, and multiple recent peer-reviewed laboratory studies have shown that low levels of exposure during pregnancy cause a variety of important health problems in offspring.
Breast Cancer Group Sought Listing
“We've been working very diligently to get BPA listed under Proposition 65,” Sharima Rasanayagam, director of science at the Breast Cancer Fund, told Bloomberg BNA May 8. “This is going to protect the health of consumers in California.”
Most people in the U.S. are exposed to bisphenol A every day, despite known health risks to children and adults, such as cancer and infertility, she said.
The Natural Resources Defense Council said the panel's decision is based on its review of substantial new research, which evaluated the many studies that found a long list of adverse health effects associated with BPA.
In a May 7 blog posting, NRDC senior attorney Avinash Kar said OEHHA must now decide which products will need warning labels.
“We can be sure that industry will be arguing for as little labeling as possible, and it will require continued engagement from the public health community. In the longer term, California must also do more to ensure the safety of ‘BPA-free' products—to respond to new science which shows that the chemicals used as replacements for BPA may pose similar health risks,” Kar said. “But right now, it's time to appreciate today's decision. It is an important step forward in protecting public health.”
-
(ACC Mentioned) Some Enviro-Friendly Items Hurt Recyclers' Bottom Line
May 8, 2015 | The Houston Chronicle
By Sarah Scully
As low commodity prices have left recyclers short on cash to invest in technological upgrades, product manufacturers are coming out with new types of packaging that make business even tougher.
These products include lighter-weight plastic bottles, resealable pouch containers and other items that are popular with consumers and often better for the environment because they require less energy to produce and transport. Water bottles are made with less plastic now, for example, and thin plastic film is replacing heavier packaging.
But poor consumer education means that items like trash, grocery and dry cleaning bags end up in recyclers' sorting facilities where they don't belong and can jam machines.
"Flexible packaging has a very positive environmental footprint," said Chaz Miller, director of policy and advocacy at the National Waste & Recycling Association. "Very hard to recycle, however, so there's a trade-off there."
Clear plastic pouches also have become popular. In addition to their convenient zip-close tops, they use less material. But in sorting facilities, machines often mistake the flattened pouches for paper and end up placing them in the wrong place. Thinner plastic bottles are now more easily flattened, too.
Lighter material also means that once recyclers bale it up, they have a lighter load that generates less income.
"Plastic is becoming thinner and lighter. So when we pick something up, we pick up based on volume. But when we sell that plastic, we sell it based on weight," said Waste Management's head of recycling Puneet Bhasin. "Therefore, when we are selling it, we are getting less value."
Between 2005 and 2013, recycling of plastic film increased 74 percent to more than a billion pounds, said Keith Christman, managing director of plastics markets for the American Chemistry Council.
Houston-based Avanguard Innovative works with companies to design products so the scraps are recyclable and the company can capture more revenue by recycling them, CEO Rick Perez said.
But for companies like Sealed Air, which invented bubble wrap and produces food packaging, preserving food and keeping it safe is the top priority, said the company's vice president of sustainability Dr. Ron Cotterman.
"We don't design them to be complex on purpose or to be hard to recycle," he said. "We design them so they have very high performance and protect the products that are being shipped or distributed."
For recyclers, the challenge remains in keeping consumers educated about film and other materials that don't belong in recycling bins.
"With more complexity in materials that consumers are purchasing, it makes it a lot harder for customers to know what they can recycle and what they can't, so I think it makes it harder to ensure that we get the right materials in the recycling stream," Susan Robinson, directors of government affairs for Waste Management. "It used to be a lot more simple."
-
(ACC Mentioned) California Mulling Over More Stringent Warnings For Products With BPA
May 10, 2015 | Tech Times
By Rhodi Lee
Canned goods and plastic drinking bottles are just among the commonly used items that contain the chemical bisphenol-A, also known as BPA.
Soon, these BPA-containing products that are distributed in California might be required to have a label that discloses one of the harmful effects associated with the chemical: reproductive harm to women.
A decision made by a board of scientific experts on Thursday will have BPA included in the list of chemicals that can cause harm. The Developmental and Reproductive Toxicant Identification Committee (DART-IC) decided to add BPA to the Proposition 65 list, a move that contradicts the statements from scientists and the U.S. government that the chemical does not pose reproductive threats to humans.
Proposition 65 has set up a system through which chemicals that are found to cause reproductive or development problems need to be disclosed regardless if they are present in the construction of building, in consumer products and used in other means.
The move is the latest in a long-time dispute between the chemical industry, which claims that the substance is safe, and state experts.
Steven Hentges, from the Polycarbonate/BPA Global Group of the American Chemistry Council said that they strongly disagree with the decision to list the chemical as a female reproductive toxicant under Proposition 65.
"The decision is not supported by the extensive scientific record presented to the committee and is completely contrary to explicit input provided by the U.S. Food and Drug Administration," Hentges said in a statement. "In April, FDA's acting chief scientist submitted a letter to the DART-IC stating that the results of FDA's own comprehensive research 'do not support BPA as a reproductive toxicant.'"
Center for Accountability in Science chief science officer Joseph Perrone similarly disagrees with the decision saying that the regulators just stir up unwanted fear about safe products.
The Natural Resources Defense Council, however, welcomed the decision describing it as a crucial step towards the protection of the health of the public.
Disclosure is not required for another year though, said California's Office of Environmental Health Hazard Assessment spokesman Sam Delson. A second state process would also have experts decide the level of chemical that can be considered harmful to the reproductive systems of women. A warming may not even be necessary if the amount of the chemical in bottles or cans is below the threshold.
-
(ACC Mentioned) EPA Issues Interim Guidance Concerning Antimicrobial Data Requirements
May 8, 2015 | JD Supra Business Advisor
By Lisa Burchi and Lisa Campbell
On Thursday, April 30, 2015, the U.S. Environmental Protection Agency (EPA) issued interim guidance that it intends to clarify its toxicology data requirements for antimicrobial pesticides used on food contact surfaces. In addition, EPA issued a letter to antimicrobial registrants that EPA states is intended “to summarize how the Agency has been implementing 158W with respect to existing registered antimicrobial pesticides, as well as new and pending antimicrobial pesticide applications.”
The interim guidance is intended to satisfy a condition of the March 2, 2015, settlement agreement between EPA and the American Chemistry Council (ACC), which followed ACC’s July 2013 initiation of a legal challenge to the antimicrobial data requirements (subpart 158W of Title 40 of the Code of Federal Regulations) in the U.S. Court of Appeals in the District of Columbia. The settlement agreement is discussed here.
In the settlement, EPA agreed to issue, within 60 days of the Agreement becoming final, an interim guidance document explaining EPA’s interpretation of the 200 parts per billion (ppb) residue level above which additional toxicology testing would be required for indirect food uses.
The interim guidance states with regard to the 200 ppb standard:
No later than September 2, 2017, the Agency will propose a correction to 40 CFR Part 158W to make the rule’s language as it pertains to the 200 ppb level established in 40 C.F.R. § 158.2230(d) consistent with the U.S. Food and Drug Administration’s use of that same level. The proposal will be to clarify that the 200 ppb level established in the rule is based on total estimated daily dietary intake, and is not based on the amount of residue present on only a single commodity. The Agency is providing this interim guidance to registrants that the referenced 200 ppb level is based on total estimated daily dietary intake rather than on the amount of residue present on only a single commodity.
EPA states that this interpretation is consistent with the U.S. Food and Drug Administration’s (FDA) policy. In general, if pesticide residues in food resulting from use on food contact surfaces are 200 ppb or less, EPA requires certain toxicology data. If residues are greater than 200 ppb, additional data may be required, depending on other conditions such as test results.
Also in the settlement, EPA agreed to propose, within four months of the Agreement becoming final, a guidance document entitled Antimicrobial Pesticide Use Site Index (USI), and provide a 30-day comment period. The USI guidance will provide descriptions of direct food uses, indirect foods uses, and nonfood uses. The letter states the following regarding its development of the USI guidance:
The Agency is developing a guidance document called the Antimicrobial Pesticide Use Site Index (USI) that will serve as a compilation of existing use sites and will identify how each use site fits within the twelve use patterns established in 158W. The guidance document will serve to assist prospective registrants with the application requirements by making it easier for them to identify which data are necessary to register their product(s).
EPA’s letter also discusses the following regarding existing and pending antimicrobial pesticide applications: EPA may find it necessary, “in the context of, but not limited to, the requirements in 158W,” to call in data as each active ingredient is evaluated under the Registration Review program. EPA does not intend to conduct this generic evaluation for new products or applications to amend existing products that are covered in Pesticide Registration Improvement Extension Act (PRIA3) fee category Table 9 -- Antimicrobial Division -- New Products and Amendments. During early implementation of the 158W requirements, EPA recognizes that not all new applications will have all the newly-required data. EPA may thus find it appropriate to issue Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 3(c)(7) conditional registrations and set a deadline for the submission of the required data. Any application submitted after July 8, 2013 (the effective date of the 158W requirements) must contain the required data or an adequate justification for any data requirements not submitted. On the issue of timing, applicants should explain why any data are not yet submitted and when the data can be submitted. Failure to submit required data or provide an adequate justification will result in EPA rejecting the application as incomplete under the 45/90 day preliminary technical screen under the Pesticide Registration Improvement Act (PRIA).
The settlement agreement and additional documents are available at http://www2.epa.gov/pesticide-registration/epa-data-requirements-registration-antimicrobial-pesticides-part-158w#interim and www.regulations.gov in docket EPA-HQ-OPP-2008-0110. More information on antimicrobial policies and guidance is available here.
-
House Panel On Track To Re-Examine Draft TSCA Bill
May 11, 2015 | E&E Daily News
By Sam Pearson
House lawmakers will hold a markup of a discussion draft updating the nation's chemical safety law this week, a spokesman for Rep. John Shimkus (R-Ill.) said Friday.
Shimkus has worked on a scaled-down approach to fixing the 39-year-old chemicals law, in an attempt to find a bipartisan consensus that eluded House lawmakers last year.
Jordan Haverly, a spokesman for Shimkus, said the House Energy and Commerce Committee had not yet issued notice of Thursday's markup but planned to do so within two days of the markup after resolving additional details, as required by House rules.
Shimkus' proposal takes a markedly different approach from a competing Senate plan -- S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act." Unlike the Senate bill, which attempts to broadly remake the Toxic Substances Control Act to balance both the business community's desire for regulatory certainty and the need to more effectively evaluate the safety of chemicals, Shimkus' plan keeps more of existing law while targeting sections considered most in need of reform.
The premise behind the draft bill, called the "TSCA Modernization Act," stems from lawmakers' failure to advance broader proposals. After negotiations collapsed in the House last year, then-Rep. Henry Waxman (D-Calif.) and others urged Shimkus to consider a less ambitious proposal that could more easily win broad support.
It's not clear what changes Shimkus and other lawmakers will propose to address issues raised at a subcommittee hearing last month.
At the hearing, Jim Jones, U.S. EPA's assistant administrator for chemical safety and pollution prevention, testified that parts of the bill were unclear, including how EPA would be permitted to prioritize chemicals so that the highest-risk substances are reviewed first (E&E Daily, April 15).
The bill also would allow chemical manufacturers to request that EPA review specific substances. However, Jones testified, it gives EPA no discretion to refuse their requests. Since there would be no limit on the number of requests industry could issue, it could overwhelm EPA and prevent the agency from setting its own priorities, Jones said.
Jones also testified that the bill set unrealistic timelines for EPA, such as requiring that it complete an industry-requested risk assessment within six months.
The Senate plan also has a significant head start, with more than a third of senators now co-sponsoring the proposal and a floor debate expected as soon as June (Greenwire, May 7).
Schedule: The markup is Thursday, May 14, in 2322 Rayburn; additional details to be announced.
-
UPDATED: Understanding Preemption in the Lautenberg Act
May 8, 2015 | Environmental Defense Fund
By Richard Denison
[*UPDATED 5-8-15: This is a new version of an earlier post that I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.]
By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough. And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).
There has been a lot of confusion surrounding preemption in the Lautenberg Act. So in this post, I describe how preemption works under the bill, and what is and is not preempted.
In the sidebar is a summary of the key preemption provisions of the Lautenberg Act. The rest of this post is a deeper dive for those who want one.
Preemption under the Lautenberg Act
The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action. That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state. And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).
Outside of these boundaries, states are free to act on chemicals. The new system would be similar to the current system except when EPA decides a chemical is a high priority and may require federal action.
Below I discuss the major components to the preemption provisions of the Lautenberg Act.
(1) State actions subject and not subject to preemption
Types of state actions that are subject to preemption:If EPA requires a company to do testing, states can’t require it to test to generate the same information.If EPA requires a company to notify EPA before beginning a particular use of a chemical, states can’t require notification of that same use.If EPA places prohibitions or other restrictions on the production, processing, distribution or use of a chemical, or decides that such restrictions are not necessary, states cannot place restrictions on the same uses or to address the same health/environmental concerns.
Types of state actions that are not preempted: State requirements for reporting, monitoring or biomonitoring, disclosure or other information requirements, unless already required under TSCA or another Federal law.State actions to prohibit or restrict a chemical EPA has acted on if:the state is acting on a use of the chemical that EPA did not consider or that does not fall under EPA’s TSCA jurisdiction (Note: TSCA does not cover personal care products, cosmetics, food packaging and food additives, which are uses regulated by FDA, or pesticides, which are regulated by EPA under a different law);the state is acting under delegated authority under another federal law (e.g., the Clean Air Act);the state is acting under a state law but to address a different health or environmental concern than EPA’s action under TSCA addresses (e.g., a restriction on a greenhouse gas); orthe state obtains a waiver from EPA to act even where EPA intends to act or has acted.
In other words, even if EPA acts on a high priority chemical, states can still restrict it to deal with other goals – like limiting global warming, clean air or water, or some use not covered by the federal action.States can co-enforce, i.e., enact and enforce requirements identical to those taken by EPA.
State actions grandfathered in:
Finally, the Lautenberg Act grandfathers in, regardless of subsequent EPA action, all state actions:taken before August 1, 2015; ortaken under a state law adopted on or before August 31, 2003 (this provision has the effect of grandfathering in California’s Proposition 65, which requires warning of the presence of certain chemicals in products or other settings).
(2) Preemption of state actions on high-priority chemicals
Preemption can occur at two distinct points in the bill’s process for EPA evaluation of high-priority chemicals:Preemption of certain pre-existing as well as new state actions on a chemical occurs when EPA takes final action on that same chemical.Preemption of certain new state actions on a chemical occurs after EPA starts work on that same chemical until it completes its safety determination.
Preemption that occurs at final agency action on a high-priority chemical:
Under the Lautenberg Act, a final agency action on a high-priority chemical triggers preemption of certain state actions, including actions taken after August 1, 2015 or taken under a law adopted after August 31, 2003, as well as potential future actions. Final agency action is either: (1) a final safety determination by EPA that a chemical meets the bill’s safety standard, or (2) if EPA finds a chemical does not meet the safety standard, a final rule regulating that chemical (which must either ban/phase out the chemical or impose restrictions sufficient for it to meet the safety standard), as of its effective date.
This trigger for preemption is similar to that provided under current TSCA. Importantly, the scope of this preemption is directly tied to the scope of EPA’s safety assessment and determination and, where required, its rule regulating the chemical. States remain free to act on any uses or health or environmental concerns not explicitly addressed by EPA.
All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver. Designations of a chemical as low-priority no longer have any preemptive effect, which was the case under the original 2013 bill, CSIA.
Preemption that occurs when EPA starts work on a high-priority chemical:
Perhaps the most controversial aspect of preemption under the Lautenberg Act is that once EPA initiates work on a chemical it has designated as high-priority and until it completes its safety determination, states cannot undertake new actions to restrict that chemical. (Note, however, that states can take new actions to address uses and concerns that are not included in the scope of EPA’s assessment, and can continue to take other actions that do not restrict the chemical. All of the exceptions described earlier apply, as well as the ability of a state to obtain a waiver.)
The trigger for preemption of new state actions is the commencement of EPA’s safety assessment of a chemical, an early step in the process. That preemption lifts once EPA completes its safety determination. At that point:If EPA finds the chemical meets the safety standard, states could not impose new or continue to enforce existing restrictions on that chemical from that point forward, except pursuant to a waiver (see below).If EPA finds the chemical does not meet the safety standard, states could impose new or continue to enforce existing restrictions on that chemical until the effective date of EPA’s required regulation.
Under the bill, deadlines apply to each step in EPA’s evaluation of a high-priority chemical: EPA has up to 3 years to complete a safety assessment and determination, and up to 2 more years to issue a risk management rule where required; these deadlines can be extended up to 2 more years in the aggregate upon showing of cause by EPA.
(3) Waivers
States can apply for waivers to restrict a chemical both before and after final EPA action on the chemical. Here is how it works:
Waivers during EPA safety determinations:Before EPA completes a safety determination on a chemical, EPA “shall” grant, within 90 days, a waiver requested by a state if EPA finds the state requirement: will not unduly burden interstate commerce, would not cause a violation of federal law, and is based on a concern supported by peer-reviewed science.If EPA grants such a waiver, the waiver stays in effect until the safety determination is completed.If EPA fails to meet its deadline for completing a safety determination, or fails to decide on a waiver request within 90 days, a requested waiver is automatically approved and remains in effect until the safety determination is completed.
Waivers after final EPA actions:After the effective date of a final EPA action on a chemical, EPA “may” grant a waiver requested by a state if EPA finds compelling state or local conditions warrant granting the waiver and that the state requirement: will not unduly burden interstate commerce, would not cause a violation of federal law, and “is consistent with sound objective scientific practices, the weight of the evidence, and the best available science.” EPA must decide on the waiver request within 180 days.
Judicial review:Except as noted below, any person may seek judicial review of EPA’s decision on a waiver or its failure to decide on a waiver.If EPA fails to meet its deadline for completing a safety determination, any resulting waiver (which, as noted above, is automatically approved) is not subject to judicial review.If there is a judicial challenge of EPA’s failure to decide, within 90 days, on a state request for a waiver to act before EPA completes a safety determination, the waiver (which, again, is automatic), stops applying once the challenge is sought, but then again takes effect: if EPA approves the waiver request, if a court orders EPA to approve the request, or 90 days after judicial review was sought, whichever is earliest. If the waiver again takes effect, its eventual fate is then decided by the outcome of the judicial review.
In this post, I’ve tried to provide as straightforward as possible an analysis of how preemption would work under the Lautenberg Act. Striking the right balance on this issue has proven to be both exceedingly difficult and critical to garnering the bipartisan support needed to pass a law. As with many compromises, no one is likely to be totally happy with the outcome.
Of course, preemption is only one part of the Lautenberg Act, and needs to be viewed in the broader context of all of the new authorities and mandates it would provide EPA. Click here for our broader analysis of the bill.
-
Draft IRIS Analyses of Ammonia, Sterilizer, Trimethylbenzenes Critiqued by EPA Advisers
May 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Draft analyses and conclusions reached by the Environmental Protection Agency on the human health effects of ammonia; inhaled ethylene oxide, a sterilizer; and trimethylbenzenes, components of gasoline, are generally well founded but could be improved, the agency's Science Advisory Board said.
The SAB's Chemical Assessment Advisory Committee peer reviews the agency's draft Integrated Risk Information System (IRIS) assessments, which analyze health effects of chemicals and the doses at which those health effects occur.
The committee agreed the EPA had sufficient scientific evidence to conclude ammonia causes significant respiratory effects in people but that there is inadequate information to assess its carcinogenic potential. The board posted three draft critiques of ammonia and other chemicals May 7.
The EPA could improve its draft ammonia assessment in ways such as expanding its rationale as to why certain information wasn't considered, the committee's draft critique said, echoing comments it made during its July 2014 meeting (137 DEN A-7, 7/17/14).
The updated, draft critiques of inhaled ethylene oxide and trimethylbenzenes that the committee released were consistent with its previous draft peer reviews.
Advisory Committee Agreed With Draft Conclusion
In January, the Chemical Assessment Advisory Committee said in a draft critique that it agreed with the agency's draft conclusion that inhaled ethylene oxide may cause breast and other cancers and do so by mutating DNA, which means early life exposure poses an increased risk for cancer later in life (05 DEN A-5, 1/8/15).
In its draft critique released in October 2014, the committee had urged the EPA to give greater consideration to certain scientific studies about trimethylbenzenes (199 DEN A-12, 10/15/14).
The three draft critiques must be reviewed by the full, or “chartered,” Science Advisory Board before being sent to the EPA as formal advice.
The board hasn't yet announced the date or dates it will review the committee's three draft critiques.
-
DuPont's Teflon Unit Neighbors Worry Chemours Won't Pay Medical Monitoring Bills
May 11, 2015 | BNA Daily Environment Report
By Jack Kaskey
DuPont Co.'s plan to spin off its Teflon unit is spurring concern on the West Virginia-Ohio border that the new company won't cover medical payments for residents sickened by a chemical long used at the production plant.
In 2004, as a result of a class action filed three years earlier, DuPont agreed to pay $235 million to monitor residents' health around Parkersburg, W.Va., where the plant is located.
The new company, however, will start life heavily in debt because of a promised $4 billion dividend it owes DuPont after the spinoff, set for July 1.
Now, a group called Keep Your Promises DuPont is demanding DuPont explain how the new company, Chemours Co., will fund its commitment to the community's health.
The faceoff is part of a 14-year debate over pollution from the plant that's been the catalyst for 3,500 personal injury lawsuits and 32 wrongful death claims, according to an April 21 regulatory filing.
Chemours is “thinly funded,” and if it starts losing personal injury cases, its obligations could be “enormous,” said Paul Brooks, a Parkersburg physician and a member of the Keep Your Promises advisory group.
Members of the group traveled to Wilmington, Del., DuPont's hometown, to present their case to shareholders and to the public ahead of the company's annual meeting May 13.
“They need to come clean about what they are doing,” Brooks said.
The community group expressed its concerns in an open letter to DuPont Chief Executive Officer Ellen Kullman. The letter asked Kullman to say how much Chemours will pay to make sure “our communities will be made whole after the spinoff.”
Faster Growth
DuPont is spinning off Chemours, which makes fluoropolymers such as Teflon, refrigerants and titanium-dioxide pigment used in paint, to focus on faster-growing businesses with steadier earnings.
DuPont and Chemours are “committed to fulfilling” any environmental or legal obligations for the plant, according to an e-mailed statement from the chemical maker.
In its April 21 filing, Chemours said that while it can't estimate its potential liability for injury and death suits linked to the plant, it “does not currently believe that the ultimate disposition of these matters would have a material adverse effect on Chemours combined results of operations, financial position or liquidity.”
The squabble over the plant's health effects began in August 2001 with accusations in a class-action in West Virginia state court that residents living near the Washington Works facility suffered, or may suffer, deleterious health effects from exposure to perfluorooctanoic acid (PFOA) that entered the community's drinking water.
DuPont formerly used PFOA in making Teflon but later developed processes that don't involve the use of PFOA
Settlement Covers 80,000 People
Under the settlement covering 80,000 people, DuPont agreed to pay for health monitoring, including visits to doctors to check for early signs of disease (244 DEN A-10, 12/19/14).
The agreement also provided that people who get sick may file personal injury claims against the company.
Chemours, through DuPont, has put $1 million in escrow to fund the program.
Area residents, however, say that may not be enough.
“DuPont is obligated not only monetarily but morally to take care of these people,” Joe Kiger, a Parkersburg resident, said in an interview. He, like the physician Brooks, expressed concern Chemours may be overwhelmed by its medical obligations and seek bankruptcy protection to escape them.
Three years ago, the debate flared anew when research funded by DuPont probed possible health risks involving PFOA, also known as C8, used for decades to make everything from Teflon non-stick pans to rain gear, non-stain carpets and wiring insulation.
Six Diseases
The research, involving about 70,000 people, linked the chemical to six diseases, including testicular cancer, kidney cancer and thyroid disease, according to a regulatory filing. In 2013, a year after the report was completed, DuPont reported it stopped making and using PFOA (234 DEN A-1, 12/5/13).
Chemours will be facing heavy debt once the spinoff is completed. It has borrowed about $4 billion as it prepares to pay the similar-size dividend, giving it a pro-forma debt-to-Ebitda ratio (earnings before interest, taxes, depreciation and amortization) of 4.5, according to an April 30 research note from Richard Bourke, a Bloomberg Intelligence analyst.
For similar companies, the median ratio of debt compared to earnings before interest, taxes, depreciation and amortization is 3.1.
Trian Fund Management, the activist investor trying to win four DuPont board seats at the annual investor meeting on Wednesday, said DuPont is loading too much debt onto Chemours.
“Trian's suggestion was always to keep Chemours investment grade, while management has chosen to put the company's credit rating into ‘junk’ territory, utilizing approximately twice the balance sheet leverage that Trian proposed,” the New York-based fund said in an April presentation to DuPont investors.
-
May 11, 2015 | The New York Times - Op-Ed
By David Fischer
“U.S. to Put Curbs on Formaldehyde” (front page, May 4) highlights the need for a national standard for formaldehyde emissions from composite wood products sold in the United States. Formaldehyde-based resin manufacturers have been on record supporting a national standard based on sound science.
Formaldehyde has been carefully studied, reviewed and regulated by numerous federal agencies, including the Environmental Protection Agency. In conjunction with industry’s stewardship efforts, this has led to significant achievements in reducing levels associated with manufactured sources of formaldehyde.
The California Air Resources Board, or CARB, developed and enforces the most stringent product testing and certification standards for formaldehyde emissions from composite wood products in the world.
As of now, the regulation applies only to wood products sold in California. But nearly all North American composite panel manufacturers make CARB-compliant products, and Congress passed a law to institute a national standard based on CARB’s standard.
Putting CARB’s standards into place nationally will create consistent — and stringent — formaldehyde emissions standards for composite wood products manufactured, or shipped to and sold, in the United States.
-
California May Require Warnings On Products Containing Chemical BPA
May 8, 2015 | Reuters
By Sharon Bernstein
Plastic drinking bottles, canned goods and other items containing the chemical bisphenol-A (BPA) distributed in California might soon be required to carry a label disclosing that the compound can cause reproductive harm to women.
Thursday's decision by a board of scientific experts to include BPA on a list of chemicals known to cause harm is the latest in a years-long dispute between state experts and the chemical industry, which says the substance is safe.
The decision was welcomed by the Natural Resources Defense Council, an environmental group, which called it "an important step forward in protecting public health."
But a chemical industry group denounced the decision, saying it highlights the "sheer ridiculousness" of California's law requiring disclosure of chemical compounds known to cause harm.
"Regulators are just stirring up more needless fear about safe products," said Joseph Perrone, Chief Science Officer for the Center for Accountability in Science, an industry group.
That voter-passed law, Proposition 65, set up a system under which chemicals found to cause developmental or reproductive impairment would have to be disclosed, whether they are in consumer products, used in the construction of buildings or used in other ways.
A chemical industry group sued the state in 2009, when experts tried to require disclosure of PBA as causing developmental harm. The state won that case, but the industry appealed, and the chemical remains off the list while the litigation continues, said Sam Delson, a spokesman for California's Office of Environmental Health Hazard Assessment.
The product is used in plastic drinking bottles and in the lining of some canned food containers, among other purposes.
Even with Thursday's decision that BPA belongs on the state's list of harmful chemicals, disclosure will not be required for another year, if at all, Delson said. That depends on a second state process, under which experts must decide at what level the chemical is harmful to women's reproductive systems.
If the amount in bottles or cans falls below that threshold, a warning would not be required, he said.
-
(ACC Mentioned) Dow and Sustainability Inseparable
May 10, 2015 | Midland Daily News
By Dr. Stacy L. Daniels
I don’t know whether to smile in bemusement, or to take umbrage, over your recent editorial (Our view: Dow presses on with sustainability goals Tuesday, April 21, 2015). It starts out well, “Long-time Midlanders know that Dow has been working on sustainability programs for many years,” yet ends oddly, “Years ago, it would have been strange to talk about The Dow Chemical Co. and sustainability in the same breath.” I posit that it would seem strange NOT to talk passionately about the two being inseparable after 118 years! Dow is acknowledged as one of the originators of “sustainability,” now so in vogue as a megatrend in 21st century corporate management circles.
Modern “sustainable development” is commonly assumed to have been articulated in 1987 by the Brundtland Commission (formerly the World Commission on Environment and Development). As early as 1983, the UN General Assembly realized (somewhat belatedly) that there was “a heavy deterioration of the human environment and natural resources.” In October 1987, a 300-page document, entitled, “Our Common Future” (also known as the Brundtland Report), allegedly coined the term “sustainable development” as “a process for meeting human development goals while sustaining the ability of natural systems to continue to provide the natural resources and ecosystem services upon which the economy and society depend.” http://www.un-documents.net/our-common-future.pdf
Some sources attribute the evolution of the concept of “sustainability” to earlier conservational and environmental movements. A few mid-20th century classics include: “Sand County Almanac” (Aldo Leopold, 1949), “Silent Spring” (Rachael Carlson, 1962), “The Economics of the Coming Spaceship Earth” (Kenneth E. Boulding, 1966), “Tragedy of the Commons” (Garrett Hardin, 1968), “The Population Bomb” (Paul Ehrlich, 1968) and “Limits of Growth” (Club of Rome, 1972). But “sustainability” goes back to the management of resources and wastes proffered in the late 19th century.
As a “long-time Midlander” (mid-1940s), a Dow employee (1955+), and a 20-year Dow retiree, I too remember otherwise. I’d like to stir up a bit of civic and corporate memory (and pride), as much of the local history of sustainability seems forgotten. Dow responded to environmental issues, promoted energy efficiency and reduced waste through the years, but these precedents were sometimes unappreciated, besmirched or taken out of context. Early in my career, I worked with, and was taught by, some of the true environmental “pioneers” at Dow. Being a big chemical plant on a small river, the environmental culture at Dow runs long and deep. Dow was pioneering industrial waste treatment in 1909 — about the time Herbert Henry Dow battled the German bromine cartel before World War I.
In the early 1960s, before passage of the Clean Water Act, birth of the U.S. EPA, creation of “Earth Day,” Tom Lehrer’s song “Pollution,” Kermit the Frog’s appearance on TV, and design of the “Ecology” flag, there was an Environmental Control Systems (ECS) Business within Dow marketing products and services for waste treatment to municipalities and industries! In 2008, the ECS alumni celebrated their 40th reunion entitled: “Flushed with Pride!” The program included a special exhibit at The Midland County History Center celebrating the many environmental accomplishments of Dow.
There were many Dow advocates: “With increasing complexity of wastes and tighter environmental requirements, a complete systems approach to pollution problems, including air, water and solids, will be necessary to be sure that solving one problem will not cause another.” — C.L. Sercu, The Economics of the Control of Pollution, May 19, 1970.
I managed the Toxic Release Inventory for the MI Division about 1987-1993, when Dow became the first to electronically submit its annual report to the U.S. EPA, detailing chemicals in raw materials, intermediates, products and wastes. There was a continuing long-term trend back then to treat wastes onsite in facilities owned and operated by Dow! The mantra was, “use, reuse, reclaim, recycle.”
Dow also provided strong leadership in the Environmental Management Committee for the Chemical Manufacturers Association (now the American Chemical Council), and in forming a “business roundtable” among executives of the chemical industry to share common experiences associated with environmental, health, safety and sustainability issues.
Through the years Dow has championed causes like: “Life Is Fragile — Handle with Care,” “Product Stewardship,” “Pollution Abatement,” “Waste Reduction,” and “Responsible Care.” See also “Redefining the Role of Business in Society: Dow Introduces 2025 Sustainability Goals,” which are found at http://www.dow.com/en-us/science-and-sustainability/
-
Dem Support For Pipeline Compromise Under The Microscope
May 11, 2015 | E&E Daily News
By Hannah Northey
Just how much Democratic support House Republicans can muster for a comprehensive energy bill by compromising on legislative language to fast-track natural gas infrastructure could become clear this week.
The House Energy and Commerce Subcommittee on Energy and Power is slated to take up a legislative draft on Wednesday that would firm up the process by which proposed natural gas pipelines are approved, while leaving behind controversial language in one prior GOP bill that drew Democratic opposition and a White House veto threat.
The House draft lays out a process through which agencies can resolve conflicts or delays in the permitting process at the Federal Energy Regulatory Commission.
What it doesn't include is a prickly provision in Kansas Republican Rep. Mike Pompeo's "Natural Gas Pipeline Permitting Reform Act," H.R. 161, which passed in January despite a White House veto threat.
Pompeo's bill would have mandated automatic approval of a proposed pipeline project if the deadline was missed, a move that some Democrats and the Obama administration rejected as too difficult for FERC.
Earlier this year, House Democrats from energy-hungry states like New Jersey and Massachusetts argued Pompeo's bill would turn FERC into a "super permitting agency" forced to make decisions on complex pipelines crossing multiple states and intersecting vulnerable wildlife areas.
Rep. Niki Tsongas (D-Mass.) warned that her state is seeing major pipeline projects that would cross sensitive areas and that Pompeo's legislation would force hasty federal decisions on such projects. Tsongas offered an amendment -- which was ultimately blocked -- to exempt pipelines crossing federal, state or local land designated for conservation or recreation (E&ENews PM, Jan. 21).
The House subcommittee will hear from a FERC official about how the process is currently working, and vet the language with industry sources, a grid operator and Maine Gov. Paul LePage (R).
But the subpanel will also hear from some industry voices that aren't entirely enthused with the draft.
Don Santa, the president and CEO of the Interstate Natural Gas Association of America and a strong proponent of the Pompeo measure, is scheduled to testify.
INGAA last week expressed concerns that removing provisions from Pompeo's bill that would mandate automatic approval of a proposed pipeline project if the deadline is missed would take the teeth out of the effort (Greenwire, May 8).
The Energy and Power Subcommittee will also take up draft legislation for accelerating hydropower projects.
House members said the draft builds on Rep. Cathy McMorris Rodgers' (R-Wash.) draft bill that would accelerate licensing and administration for existing and new development by not requiring a license for projects smaller than 5 megawatts; minimizing duplicative data studies; and extending a license an additional 70 years if there is a major investment in construction, environmental upgrades or capacity (E&ENews PM, April 24).
Schedule: The hearing is Wednesday, May 13, at 10 a.m. in 2123 Rayburn.
Witnesses: Maine Gov. Paul LePage; Ann Miles, director of the Federal Energy Regulatory Commission's Office of Energy Projects; Don Santa, president and CEO of the Interstate Natural Gas Association of America; Randy Livingston, vice president of power generation for Pacific Gas and Electric Co.; John Suloway, a senior adviser at the New York Power Authority; and John Collins, managing director of business development at Cube Hydro Partners.
-
Senators To Review Funding Boosts For Sage Grouse, Drilling Fees
May 11, 2015 | E&E Daily News
By Phil Taylor
Senate appropriators on Wednesday will review the Bureau of Land Management's $1.25 billion fiscal 2016 budget request, a proposal that seeks new fees on oil and gas drilling and would roughly quadruple funding for an imperiled Western bird.
BLM Director Neil Kornze will defend the budget before the Interior, Environment and Related Agencies Appropriations Subcommittee, which is led by Sen. Lisa Murkowski (R-Alaska).
The BLM proposal is about $108 million above current spending levels, which may put it at odds with some Republicans who are insisting that Congress stick to sequester spending levels agreed to in a 2011 budget deal.
The BLM proposal is part of the Interior Department's $13.2 billion budget request -- an 8 percent hike above current funding levels -- which comes as part of a broader Obama administration spending plan that far exceeds levels set by the Budget Control Act of 2011.
Murkowski, who hails from a state that is flush with federal lands but that has seen little federal mineral production, is likely to press Kornze on BLM's oil and gas program.
Oil production has been steadily rising on BLM lands, though not as fast as has occurred on state and private lands. In addition, over the past five years, BLM has leased an average of 1.5 million acres annually, down significantly from the 4 million acres the George W. Bush administration leased annually during its final five years in office.
Panel members may press Kornze to discuss BLM's final rule for hydraulic fracturing, which has garnered heavy criticism from Republicans, oil and gas groups, and some Western states.
Finalized in late March after more than four years of public outreach, the rule was BLM's first major update to fracking regulations in three decades and sought to tamp down public worry about the integrity of wells and the possible escape of fracking fluids. Kornze defended the rule in late April before Republicans on the Senate Energy and Natural Resources Committee, arguing that base-line federal standards are needed, especially in states that lack adequate fracking regulations.
But count Murkowski as a skeptic.
"This administration has already taken unprecedented steps to block development in Alaska," Murkowski said in a statement on the rule in March. "Given its anti-development approach, we should expect this rule to make it even harder to produce oil and gas on federal lands."
Sen. Tom Udall (D-N.M.), the Appropriations subpanel's ranking member, is likely to also take a keen interest in the rule, given that his state has seen a major uptick in drilling on federal lands.
BLM's budget also proposes charging about $48 million in new oil and gas inspection fees -- raising resources to bolster the safety of the roughly 100,000 wells BLM oversees -- and BLM recently initiated a rulemaking that could result in higher oil and gas lease rentals and production royalties. The reforms are backed strongly by conservationists and many Democrats, but have drawn industry and GOP ire.
Kornze will also be pressed to defend BLM's request for $93.4 million for land acquisition, which would include $38 million in discretionary and $55.4 million in permanent funding. That would be $73.7 million above enacted levels. Republicans -- particularly Murkowski -- have looked skeptically at land acquisition requests, noting that Interior faces many billions of dollars in deferred maintenance projects.
Wednesday's hearing also comes just weeks before the BLM is set to release final sage grouse conservation plans across tens of millions of acres of the West. The agency's resource management plan (RMP) amendments are designed to implement stronger protection for sage grouse to preclude the need to list them under the Endangered Species Act.
The final plans will stipulate access for oil and gas drilling, mining, grazing, and recreation, among other land uses. As a result, they're certain to garner scrutiny from Western lawmakers.
Schedule: The hearing is Wednesday, May 13, at 10 a.m. in 124 Dirksen.
Witness: Neil Kornze, BLM director.
-
Senate Committee Announces More Bills, Hearings as Broad Energy Bill Takes Shape
May 11, 2015 | BNA Daily Environment Report
By Ari Natter
The Senate Energy and Natural Resources Committee announced a series of hearings on dozens of energy bills as a comprehensive energy package being crafted by committee chairman Sen. Lisa Murkowski (R-Alaska) begins to take shape.
The hearings, focused on three of the four planned titles for the broad energy bill—infrastructure, supply and reform and accountability—are all scheduled to occur over the next month, with markups planned to begin in June. The committee held an earlier hearing on legislation related to the energy efficiency portion of the bill at the end of April.
Among the bills scheduled to be considered during the May 14 infrastructure hearing is S. 1219, a bill by Murkowski that would direct state utility commissions to examine the effects of net metering and “prescribe appropriate measures so that grid interconnection is safe, reliable and efficient,” a bill summary said.
The hearing is also scheduled to include a bill (S. 1233) by the committee's former chairman, Sen. Ron Wyden (D-Ore.), which would allow states instead of the Federal Energy Regulatory Commission to set electricity rates for power projects of less than two megawatts in an effort to spur the development of small-scale renewable power projects like rooftop solar panels, a bill summary said.
In addition, legislation (S. 1228) to expedite decisions on international energy projects such as the Keystone XL oil pipeline and to speed up the federal approval process for oil and gas pipelines (S. 1210) are among the measures scheduled to be considered during the hearing as well (88 DEN A-14, 5/7/15).
Hydrokinetic Energy, Methane Hydrates
A hearing on energy supply legislation, scheduled to occur May 19, will feature bills such the Marine and Hydrokinetic Renewable Energy Act of 2015 (S. 1058) to promote the nascent U.S. development and deployment of marine and hydrokinetic energy technologies, which harness the power of oceans, lakes and rivers. Murkowski co-sponsored a version of the bill that was introduced in 2013.
Another bill scheduled to be considered during the hearing is the Methane Hydrate Research and Development Amendments Act (S. 1215), which would authorize funding for methane hydrate research and authorize test production in the Arctic and at sea. Methane hydrates are natural gas molecules trapped in ice crystals and are abundant in arctic Alaska.
A June 4 hearing on legislation related to accountability and reform includes a bill (S. 1223) from Murkowski that would reform the Energy Department's loan program, including prohibiting the subordination of taxpayer interest to the interests of private investors, thereby ensuring that taxpayers are repaid before private investors in the event of a default.
“While the Department of Energy has taken steps to improve its management of these programs, further reform is necessary after the failures of multiple recipients under both the loan guarantee and [Advanced Technology Vehicles Manufacturing] programs,” a bill summary said.
Loan Program Reform, Grid Security
The legislation also would require a “credit subsidy” for loan guarantees be paid by borrowers and not taxpayers. According to the Government Accountability Office, credit subsidies average about 12.5 percent of a loan guarantee.
Also scheduled to be considered during the June 4 hearing is S. 1068 by Sen. Jim Risch (R-Idaho) that would amend the Federal Power Act to protect the grid from cybersecurity threats.
The bill would allow the Energy Department, upon determination by the president, to require “with or without notice, any entity that owns, controls, or operates a bulk-power system facility to take such actions as the Secretary determines will best avert or mitigate the cyber security threat,” according to the legislation's text.
-
Senate Panel To Discuss 22 Infrastructure Proposals For Broader Bill
May 11, 2015 | E&E Daily News
By Nick Juliano
The Senate Energy and Natural Resources Committee this week will continue its work on a bipartisan energy bill with a hearing to consider nearly two dozen proposals aimed at promoting natural gas pipelines, rooftop solar panels, "smart grid" technology and related energy infrastructure needs.
The agenda for Thursday's infrastructure hearing includes 22 bills introduced by members on both sides of the aisle.
ENR Chairwoman Lisa Murkowski (R-Alaska) last week stressed her desire to put aside "messaging" bills that have monopolized much of the congressional agenda in recent years. She and ranking member Maria Cantwell (D-Wash.) are looking for areas of bipartisan agreement on needed updates to federal energy policies that have not been significantly changed since passage of the 2007 Energy Independence and Security Act (E&E Daily, May 8).
This will be the second ENR hearing to consider candidates for a comprehensive energy bill. The committee examined efficiency proposals last month, and hearings on energy supply and accountability proposals are scheduled for the coming weeks.
The House Energy and Commerce Committee also is writing a companion energy bill, although its proposals have tended to start from a more conservative position than in the Senate. A hearing is scheduled for Wednesday in the Energy and Power Subcommittee on proposals related to natural gas pipelines and hydropower projects (see related story).
ENR's slate of bills is primarily focused on four main areas: natural gas pipelines, electric transmission lines, smart grid technology such as energy storage, and alternative sources such as distributed generation.
The list does not include many overtly controversial proposals -- such as approval of the Keystone XL oil pipeline -- but that does not mean the hearing will be without controversy.
For example, the committee will consider proposals on transmission that appear to conflict with each other -- New Mexico Democrat Martin Heinrich's bill to give the Federal Energy Regulatory Commission backstop authority to approve projects that face state-level delays and Arkansas Republican John Boozeman's bill to limit federal eminent domain authority (E&E Daily, April 24).
Sen. Angus King (I-Maine) and Murkowski also are expected to defend their own separate proposals to address concerns over net metering and how to determine what rates are "just" for utilities to pay customers who sell back to the grid electricity generated from their rooftop solar panels.
King's bill would set parameters to guide state net metering decisions to account for the benefits provided by distributed generation resources -- a proposal he expects to draw criticism from the utility sector (E&E Daily, May 6). Murkowski's bill would call for a study on the issue, including considering the effects on reliability and low-income consumers who cannot afford solar panels.
The agenda also includes a bill from Sen. John Hoeven (R-N.D.) to eliminate the required presidential permit for cross-border pipelines and transmission wires; Hoeven and other supporters point to the years-long delay KXL has faced waiting for a presidential permit decision. The White House has previously threatened to veto the bill.
Schedule: The hearing is Thursday, May 14, at 10 a.m. in 366 Dirksen.
Witnesses: TBA.
-
Dem Senators Fight With Foresters Over Climate Rule
May 8, 2015 | The Hill - E2 Wire
By Devin Henry
Democratic Massachusetts Sens. Elizabeth Warren and Ed Markey have picked a fight with the biomass industry over the role plant-based energy plays in an Obama administration climate change plan.
Warren and Markey wrote Environmental Protection Agency Administrator Gina McCarthy on Friday asking her to reconsider the way the agency's proposed greenhouse gas rules for power plants incorporate biomass. The plan could end up treating biomass as a source of low-emission energy and letting states use it as a way to comply with emission reduction targets.But the senators said they worry about the environmental benefits of using biomass, noting that wood-burning power plants still emit carbon dioxide. Citing studies on the forest growth needed to offset those emissions, Massachusetts recently eliminated renewable energy subsidies for wood-burning plants.
"The EPA should not approve biomass combustion as a compliance method under the plan until the agency has a method in place to account for facility-level emissions and a means of ensuring that emissions offsetting actually occurs in an appropriate timeframe," Warren and Markey wrote.
They suggested biomass not be considered as a compliance method under the plan until 2020 at the earliest, giving the EPA time to further gauge its environmental impact and "focus near-term state efforts on wind, solar, and other zero-carbon renewable energy technologies."
The pair's letter immediately garnered a response from the American Forest and Paper Association, a trade group that supports foresters and wood product manufacturers.
“Biomass, and particularly our industry’s use of manufacturing residuals, is strongly supported by numerous scientific and technical studies as contributing positively to a low-carbon future," the association's President and CEO Donna Harman said in a statement.
The Clean Power Plan looks to reduce greenhouse gas emissions by setting reduction targets for states and giving them a variety of ways to meet their goal. In a November memo, the EPA outlined its approach to biomass in the plan, saying it "expects to recognize the biogenic CO2 emissions and climate policy benefits" of biomass, "based on the conclusions supported by a variety of technical studies."
In a statement, EPA spokeswoman Liz Purchia noted that the agency received 4.3 million comments on the Clean Power Plan, including comments on the biomass issue.
"We’re considering all of the comments we’ve received as we work to finalize the rule this summer," she said.
"EPA has already stated they have more than enough information and data to justify inclusion of energy from biomass as a renewable energy source in their Clean Power Plan," Harmon said.
-
EPA Should Impose Moratorium on Role Of Biomass in Power Plan, Senators Say
May 11, 2015 | BNA Daily Environment Report
By Ari Natter
The Environmental Protection Agency should impose a moratorium on the use of biomass as renewable energy in the Clean Power Plan, Sens. Ed Markey (D-Mass.) and Elizabeth Warren (D-Mass.) said May 8, arguing that including the fuel could undermine the plan's intended purpose of reducing carbon dioxide emissions from power plants.
In a letter to EPA Administrator Gina McCarthy, Markey and Warren noted that Massachusetts eliminated renewable energy subsidies for utlity-scale, wood-burning power plants after a 2013 study found they compromised the state's ability to achieve its emissions reduction targets.
“As EPA knows, wood-burning power plants emit around 3,000 pounds of carbon dioxide per megawatt-hour,” they wrote. “The EPA should not approve biomass combustion as a compliance method under the Plan until the agency has a method in place to account for facility-level emissions and a means of ensuring that emissions offsetting actually occurs in an appropriate time frame.”
The Clean Power Plan, which would impose the first standards for regulating carbon dioxide emissions from the nation's fleet of existing power plants, would give individual states wide discretion in how those reductions are achieved, including investment in new renewable generation, energy efficiency, improvements to existing power plants and interstate emissions trading. The EPA expects the plan, proposed in June 2014, will reduce carbon dioxide emissions from existing power plants by 30 percent from 2005 levels when it is fully implemented in 2030 (106 DEN A-1, 6/3/14).
Moratorium Until 2020
“Although we understand that the Plan is not yet final, aspects of the proposed plan indicate that EPA may decide to treat all bioenergy generation as having no greenhouse gas emissions,” the letter said. “We are concerned that including bioenergy as a compliance measure in the Plan could similarly compromise the Plan's ability to achieve emissions reductions by 2030.”
Specifically, the letter suggested a moratorium on the use of bioenergy as a compliance measure under the plan until 2020, when states have the opportunity to apply for modifications to their implementation plans.
EPA spokeswoman Liz Purchia said the agency addressed the issue in November 2014 when it updated the methodology it will use to evaluate the net greenhouse gas impact of facilities that burn biomass (224 DEN A-4, 11/20/14).
“We've received 4.3 million comments on the proposed Clean Power Plan, including comments on the treatment of biomass,” Purchia said in an e-mail to Bloomberg BNA. “We're considering all of the comments we've received as we work to finalize the rule this summer.”
Forest Industry Opposed
The American Forest & Paper Association, a trade group the represents companies such as Deltic Timber Corp., Resolute Forest Products and package manufacturer Sonoco Products Co., which also generates power from a biomass fueled boiler, said in a May 8 statement that a moratorium isn't justified.
“Biomass, and particularly our industry's use of manufacturing residuals, is strongly supported by numerous scientific and technical studies as contributing positively to a low-carbon future,” association President and Chief Executive Officer Donna Harman said. “EPA has already stated they have more than enough information and data to justify inclusion of energy from biomass as a renewable energy source in their Clean Power Plan. Failure to recognize the positive contribution of biomass energy ignores the natural carbon cycle of release and sequestration that occurs when trees are planted, grown, used and then new trees are replanted.”
-
EPA, FERC Need Reliability Valve Agreement On Clean Power Plan, Electricity Utilities Say
May 11, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency and the Federal Energy Regulatory Commission should consider a formal agreement to guide application of any reliability safety valve included in the Clean Power Plan, energy experts said.
A memorandum of understanding between the two agencies should detail how any reliability safety valve would be applied, who the parties responsible for seeking the waiver would be and steps toward completing reviews of those requests, panelists said at a May 8 forum sponsored by the Bipartisan Policy Center.
Utilities and grid operators need to know they will be able to rapidly and flexibly address any unforeseen reliability concerns that may arise during implementation of the Clean Power Plan, they said.
“When the issues come up, they can be very acute and the time to deal with them can be very limited,” Gerry Cauley, president and chief executive officer of the North American Electric Reliability Corp. (NERC), said. “You need the power tomorrow. You don't need it next year or three years from now.”
The comments came a day after the EPA sent a final rule to establish the first limits on carbon dioxide emissions from new, modified and reconstructed power plants to the White House Office of Management and Budget for interagency review.
Either FERC or NERC, a nonprofit that assures adequate voltage and power reserves, should play a role in reviewing state compliance plans for the rule to ensure that potential reliability issues are identified in advance, panelists said.
“There should be a process for FERC to evaluate at each step of the way” to address reliability issues, said James Gardner, vice chairman of the Kentucky Public Service Commission, who spoke on behalf of the National Association of Regulatory Utility Commissioners.
Final Plans Expected This Summer
The proposed Clean Power Plan (RIN 2060-AR33), expected to be completed this summer, would set unique carbon dioxide emissions targets for the power sector in each state.
State regulators would be tasked with determining how best to achieve those reductions. The Clean Power Plan follows a similar EPA proposal to set carbon dioxide performance standards for new power plants, currently under review by the White House. Interagency review is typically the last step before a rule is published in the Federal Register.
The EPA proposed performance standards for new power plants (RIN 2060–AQ91) would set an emissions limit of 1,000 pounds per megawatt-hour for new natural gas-fired power plants and 1,100 pounds per megawatt-hour for new coal-fired units, which would effectively necessitate use of carbon capture systems. The EPA is also expected to complete that rule this summer.
Clarity Needed for Effectiveness
The so-called safety valve would give states and utilities additional time or compliance options to meet the carbon dioxide emissions reduction targets in the EPA Clean Power Plan in the event of unforeseen circumstances such as generation retiring earlier than anticipated or delays in developing additional natural gas infrastructure. It would allow states to continue operating dirtier generating units to ensure grid reliability.
The Bipartisan Policy Center forum, which featured FERC Commissioner Colette Honorable, discussed options for structuring and applying the reliability valve.
For a reliability safety valve to be effective, the EPA and FERC need to establish a clear process that identifies who may request the waiver—states or grid operators—the criteria for granting the request and the process by which it is reviewed, panelists said.
“The integrity of the Clean Power Plan will be hurt if there is not a provision for the reliability safety valve,” Gardner said.
Utilities also had recommended establishing a safety valve during a workshop sponsored by FERC in February (34 DEN A-1, 2/20/15).
“Nothing will derail the Clean Power Plan quicker than a reliability event,” said William Spence, chairman, president and chief executive officer of PPL Corp., who spoke on behalf of the Edison Electric Institute.
Aims to Avoid Emissions Reduction Backsliding
However, Craig Glazer, vice president for federal government policy at the PJM Interconnection, who spoke on behalf of the ISO/RTO Council, said the EPA proposed rule cautions that it won't approve revisions to state plans that would lead to backsliding on emissions reductions.
How the agency interprets and applies that language could hamper the ability to employ a reliability safety valve, which would almost certainly increase emissions at least temporarily, he said.
“It handcuffs EPA, and it handcuffs all of us,” Glazer said.
Utilities and grid operators praised their experience with the reliability safety valve included in the EPA mercury and air toxics standards but cautioned that rule was much more narrowly focused on power plants themselves than the proposed Clean Power Plan, which would regulate the power sector as a whole.
Few Utilities Sought Reliability Exemption
Spence said few utilities sought the reliability exemption under the mercury and air toxics standards, but having that option provided industry with the certainty to install controls for toxic pollutants or retire older coal-fired units to comply with the rule.
“We have a good experience with that,” Spence said. “We actually like the framework. We think it works well.”
Environmental advocates were concerned that any safety valve could either increase emissions under the rule or provide perverse incentives for states and utilities not to invest in the kinds of emissions reductions required.
“That has the potential to reward states that are not using the flexibility of the plan and punish the states that are using the flexibility of the plan,” John Moore, senior attorney at the Natural Resources Defense Council's Sustainable FERC Project, said.
Should Promote Flexible Market Mechanisms
Rather than a safety valve, Sue Tierney, senior adviser to the Analysis Group, said the EPA rule should focus on fostering the kind of flexible market mechanisms that could address any reliability concerns that may arise.
The presence of that reliability safety valve mechanism could prevent other carbon emissions trading markets from developing, she said.
“Carbon can't just be emitted for free as the last escape valve,” Tierney said.
If the EPA rule does include a safety valve measure, it should require states or utilities receiving the waiver to further reduce their carbon dioxide emissions beyond what was previously required once the reliability issues have been addressed, Tierney said.
While market-based mechanisms have provided reliability and flexibility in the past, Cauley said a safety valve is still necessary should those other remedies fail.
“They're strong and they can bend and help, but they're not unlimited resources,” he said.
-
Window Narrows For FERC To Suggest Reliability Tools
May 11, 2015 | E&E Daily News
By Rod Kuckro and Emily Holden
Time is running short for the Federal Energy Regulatory Commission to weigh in on how to address reliability concerns arising from state compliance with U.S. EPA's Clean Power Plan, although the industry seems to be coalescing around tools that might be needed.
One FERC watcher thinks EPA will send the plan to the White House Office of Management and Budget by the end of this month, leaving little time for the agency to develop a consensus. Still, others predict that EPA's expectation of publishing the rule in "midsummer" could mean late July or August.
FERC Commissioner Colette Honorable said last week that the agency will send suggestions to EPA soon.
"I'm certain we will do so promptly because we all want to have the ability to provide this advice and counsel to the EPA in time for them to consider it as they put the final touches on the final Clean Power Plan," Honorable said.
FERC likely will not make recommendations until after Thursday's monthly meeting, which was moved up a week because of safety concerns about planned protests.
Go to E&E's Power Plan Hub to read more and to see news and documents related to the latest Clean Power Plan developments.
-
Growing California Cap-And-Trade Fund Attracts Surge Of Spending Proposals
May 10, 2015 | The Sacramento Bee
By Jeremy B. White
With California’s growing cap-and-trade program expected to yield a budgetary bonanza, lawmakers and interest groups have ample ideas for how to spend the money. Floating proposals ahead of a pivotal period for budget negotiations, they say they want to fund port improvements, pay for heavy-duty trucks and ferries, nurture urban rivers, sponge up carbon in soil and provide discounted bus passes.
They are vying for a surge in new revenue that will be available this budget cycle and could continue pouring in for years to come.
“It’s the next big fight,” said Assemblyman Henry Perea, D-Fresno. “It’s going to continue to be a fight as more revenue comes in.”
Seeking to counteract climate change, lawmakers in 2006 authorized California to establish its first-in-the-nation carbon auction program, compelling businesses to purchase allowances for what they pump into the atmosphere.
By this time last year, the system already had generated hundreds of millions of dollars that were parceled out via the budget, including a controversial annual outlay to support high-speed rail. But this year is different: Oil and gas producers have been obligated to buy permits for the first time, likely generating a multibillion-dollar influx.
“With transportation fuels coming under the cap, there will be more money for years to come. That changes the dynamic,” said Senate President Pro Tem Kevin de León, D-Los Angeles. “Because there’s going to be a lot more money, there’s going to be that many more projects competing for dollars.”
Gov. Jerry Brown’s January proposal underestimated the amount available in the coming fiscal year by as much as $3.9 billion and most likely by around $1.3 billion, according to the Legislative Analyst’s Office. The updated numbers will come this week in Brown’s May revision.
Per a formula established in last year’s budget agreement, 60 percent of the auction dollars will flow to areas such as high-speed rail, urban transit and housing. The remaining 40 percent is up for debate in the Legislature.
Lawmakers have introduced a raft of bills trying to direct the money to specific areas or to enshrine broader principles for how it can be spent, such as mandating that more of it be reserved for disadvantaged communities or large-scale transit projects. The bills serve a dual purpose: Even if they do not become law, they lay out members’ priorities ahead of budget talks.
Assemblyman Rudy Salas, D-Bakersfield, last year joined moderate Democrats in opposing the program’s expansion. Now he has a bill requiring 40 percent of the proceeds to flow to disadvantaged communities, up from the current 25 percent mandate – a needed corrective, he said, to aid communities like his that are afflicted by poor air quality.
“Everybody has a cause,” Salas said.
Illustrating that point is a bill from Long Beach’s Assembly member, freshman Democrat Patrick O’Donnell, saying cap-and-trade dollars could pay for energy-efficiency programs at public ports such as those found in his district.
“I am the voice of the ports in the state Assembly,” O’Donnell said. “Our ports are under the gun to address the environmental issues associated with moving those goods in and out, and they need support to meet those goals.”
Interest groups hoping to win funding also have compiled wish lists and pressed their cases with elected officials.
A solar industry group is exploring ways to expand the technology in low-income communities. The California Natural Gas Vehicle Coalition wants to help deploy heavy-duty trucks that burn natural gas. The manufacturing industry’s association is fighting the law in court, but they argue that the money – if it is ruled legal – should help heavy industry make its operations more energy-efficient.
“The Legislature and the administration are hearing a lot of different plans for how to spend the money,” said Coalition for Clean Air policy director Bill Magavern. “There’s really a broad spectrum of interests involved in this debate, and of course it’s because there’s money available.”
The competing proposals raise a larger question about what type of project qualifies. Money spent out of the cap-and-trade fund must verifiably work to curtail the greenhouses gases that fuel climate change.
“It is a fee, and we want to spend it appropriately,” said Sen. Fran Pavley, D-Agoura Hills, who carried the bill establishing the program.
Critics assailed Brown last year for directing revenue to the high-speed rail project, arguing that carbon reductions wouldn’t materialize for years. Legislative leaders are scrutinizing ideas this year and filtering out proposals that don’t pass muster.
At de León’s prodding, a Senate bill seeking to clean up urban watersheds was amended to seek funding from a different source. Another proposal floated by a range of environmental and community activist groups argued for subsidized bus passes.
“We know that the biggest source of greenhouse gas emissions in California is from transportation, so there a number of ways we are addressing that, and one way of getting cars off the road is improving the choices in public transit,” said Magavern, whose organization was among those making the proposal.
In his January budget, Brown proposed using the money over which lawmakers have control on an array of areas, including energy-efficiency upgrades for public buildings, waste diversion and fire prevention (forest fires pour huge amounts of carbon-thick smoke into the air). That largely holds the line on last year’s proposals.
A potential addition would direct dollars to help water resources. As a prolonged drought has prompted extraordinary conservation mandates from Brown, the administration has been studying the ways in which energy and water overlap.
There, too, policymakers have experts working to quantify how much energy is used in transporting and heating water. If they can establish they’re reducing emissions, they can tap into the cap-and-trade money.
“There are a lot of really smart people working on getting this right,” said Pavley, who has a bill directing the state to study the energy footprint of water systems. “I think it opens up an amazing possible win-win for expenditure of auction revenues.”
With a growing pile of money spurring interest, Pavley said, officials must be vigilant about keeping their focus on cutting greenhouse gases. Sacramento suffers from no shortage of ideas for spending money, but not all of them fit that framework.
“No,” Pavley joked, “we can’t (use the auction revenues to) reduce college tuition.”
-
EPA Revises 'Tier 3' Fuel Emissions Rule To Resolve Regulatory Ambiguity
May 8, 2015 | InsideEPA
By Stuart Parker
EPA is moving to clarify terms in its Tier 3 fuels and vehicles regulation after industry groups warned that a recent rule intended to make noncontroversial amendments to the program in fact created confusion and potentially expanded regulatory requirements far beyond the existing community of entities covered by the Tier 3 rule.
In a May 8 Federal Register notice, EPA withdraws a direct final rule it issued Feb. 19 making changes to the Tier 3 regulation, such as provisions affecting the renewable fuels standard (RFS). In February the agency also issued a parallel proposed version of the Tier 3 changes and said it would pursue that rule if it received adverse comment on the direct final rule. EPA will now weigh the comments and develop a new final version of the revisions.
One of the changes affected the relationship between Tier 3 and the RFS, which requires that fuel producers blend increasing volumes of biofuel into the fuel supply, or purchase renewable identification number (RIN) compliance credits. The initial Tier 3 amendments were designed to address confusion about the rule's impacts on the RFS.
However, industry commenters that weighed in on the changes, including the National Biodiesel Board (NBB) and refiners, provided the agency with adverse comment, warning that the revision created new ambiguity.
EPA in the February rule attempted to craft an exemption for production of RFS product transfer documents (PTDs) for the transfer of renewable fuels, or alternatively RINs, “for renewable fuels dispensed into motor vehicles and nonroad vehicles, engines, and equipment (to include jet engines and home heating units.)”
However, the agency also modified the regulatory language to require that these documents be produced each time a party transfers ownership or custody of renewable fuels or RINs to another entity.
NBB and refiners in response said that the addition of the term “custody” introduces regulatory uncertainty, as it is not clear what is meant by custody. Potentially, these groups argue, this could expand the obligation to produce PTDs to entities such as pipeline owners or truck operators that are not currently obliged to produce such documents.
“The addition of the term 'custody' in this case is not a mere technical amendment, but would add a wholly new obligation on producers and other parties along the supply chain. While 'ownership' has been delineated by EPA as transfer of title to the fuel, custody of the fuel may pass through several hands, such as common carriers, terminals, marketers, distributors, storage facilities, to name a few. EPA does not provide an explanation for why these added burdens are necessary,” NBB says in April 6 comments on the direct final rule.
EPA's May 8 notice removes the “custody” provision -- which the agency says was “inadvertent” -- with immediate effect from the changes to the Tier 3 rule, which tightened emissions limits for fuels and vehicles.
Emissions Credits
Also, EPA says in its partial withdrawal of the Tier 3 revisions, “We received a comment advocating for small refiners and small volume refineries to be allowed to use credits past January 1, 2020 -- to effectively receive a small refiner- and small volume refinery-specific period of lead time before these parties must comply with the Tier 3 sulfur standards.” The credits in question are granted for reductions in gasoline sulfur by refiners.
EPA adds, “Although it is not clear whether this comment is germane to the provisions of the direct final rule, in light of the short time frame for withdrawal of the direct final rule, we have decided to treat this as an adverse comment.”
Law firm Perkins Coie in April 6 comments on behalf of unspecified clients says, “Under the credit trading provisions in the Tier 3 rule, large refiners may generate credits during the years that they are subject to the Tier 2 gasoline sulfur standard and may use those credits after the date that they become subject to the Tier 3 standard.” Tier 2 was the former, less-stringent fuel content regulation.
“While small refiners and small volume refineries may also generate credits during the years that they are subject to the Tier 2 gasoline sulfur standard, they may not use those credits after the date that they become subject to the Tier 3 standard. This disparate treatment of large and small refiners is unjust,” Perkins Coie says.
EPA in the notice also clarifies language in its February rule that referred to “small refiners” with respect to when they are disqualified from treatment under Tier 3 as “small volume refiners” subject to more lenient regulation than larger refiners -- those processing 75,000 barrels of oil per day or more. EPA agrees to use the term “small volume refiners” instead, a definition suggested by groups that weighed in on the rule.
Pending Litigation
Meanwhile, ethanol sector groups in litigation now pending against the Tier 3 rule before the U.S. Court of Appeals for the District of Columbia Circuit are citing a recent ruling from the court in unrelated litigation to bolster their claim that they have legal standing to challenge the Tier 3 policy.
In Energy Future Coalition, et al. v. EPA, et al., pro-ethanol groups are challenging provisions in the Tier 3 rule governing test fuels, which they argue effectively prohibit the development of new test fuels with higher ethanol content than that normally found in the fuel supply. EPA in the case contests petitioners' standing to sue, because they are not directly regulated by the test fuel provision and therefore have no direct harm giving them standing.
Standing is a threshold issue that the court must consider because if the judges agree with EPA that industry lacks standing, it could reject the case on those grounds and never reach the merits of the suit.
In an April 27 letter advising the court of additional authorities that occurred after oral arguments March 20, the Justice Department on behalf of EPA said that the court's recent holding in Delta Construction Company, Inc. v. EPA, a case contesting vehicle greenhouse gas regulation, supports EPA's case.
In the D.C. Circuit's April 24 ruling in Delta, the court found that simply because a party to the case, biofuel maker POP Diesel, had financial interests supporting a given outcome, it did not have standing within the “zone of interests” test used by courts to determine the standing.
Petitioners in Energy Future Coalition in their own April 29 letter to the court say, however, that the Delta ruling is not relevant to the Tier 3 challenge. “In this case, by contrast, Petitioners do not seek to shift regulatory incentives to favor biofuels over other fuels or otherwise to impose a regulatory burden on their competitors. Rather, Biofuel Petitioners seek to remove an obstacle to the operation of a fuel-neutral rule that was intended to allow products like theirs to gain access” to fuel certification, the letter says
-
State Carbon Pollution Standards Differ
May 8, 2015 | Roll Call
By Lauren Gardner
The Environmental Protection Agency is set to finalize a suite of rules this summer limiting carbon pollution from new, existing and modified power plants. The regulations are all but guaranteed to solidify the country’s wholesale shift away from coal-fired generation to natural gas and renewables, a prospect that causes heartburn for states that are major coal producers and consumers.
The standards for the existing plant fleet aim to cut greenhouse gases nationwide 30 percent from 2005 levels by 2030. But that national reduction translates into varied goals among states. While Washington would have to slash carbon by nearly 72 percent, North Dakota would need to cut emissions by less than 11 percent, according to the Center for Climate and Energy Solutions.
The EPA calculated proposed reduction targets for each state based on four “building blocks” — heat-rate improvements at coal plants, fuel-switching to natural gas, renewable energy deployment and energy efficiency upgrades — that can be used to generate cleaner power. But the agency has been careful to note each state can determine on its own which steps to take to reach the ultimate emissions goal.
The agency’s proposal for new power plants sets different carbon standards for coal and for natural gas, though the limit for coal could only be achieved if plant operators installed carbon capture- and-storage technology at their sites.
-
House Panel To Weigh NEPA Climate Guidance
May 11, 2015 | E&E Daily News
By Jean Chemnick
The House Natural Resources Committee this week will take aim at the Obama administration's new plan requiring all federal agencies to integrate climate change into their National Environmental Policy Act reviews for projects under their jurisdiction.
Wednesday morning's hearing will examine a revised draft guidance the White House Council on Environmental Quality issued in December after years of delay, which sought to streamline how agencies address the causes and effects of climate change when permitting projects. The draft drew cheers from environmentalists who said uniform NEPA planning requirements would improve federal climate readiness and resilience. But Republicans and industry advocates worried that the restrictions would stymie economic development on federal lands and make it impossible to build needed infrastructure, including transmissions and pipelines.
Natural Resources Chairman Rob Bishop (R-Utah) said in December that the proposed NEPA "mandate" would have "devastating consequences on our country and will handicap manufacturing, resource development, national defense, construction, and transportation industries -- just to name a few."
But while Republicans worry that the requirements will be too stringent, some House Democrats have urged CEQ to do even more to account for projects' contribution to warming. A group of 54 House Democrats advised CEQ Managing Director Christy Goldfuss in a letter last month that the final NEPA document should require agencies to use the social cost of carbon when vetting projects -- like oil and gas development -- that will emit greenhouse gases. The SCC estimate was revised in 2013 and is controversial in its own right. It seeks to measure the incremental cost to society of each new ton of CO2 emitted into the atmosphere -- which for 2015 is priced at $37 per ton.
The draft guidance says the SCC may be used in NEPA decisions but does not require agencies to do so. The Democrats said it should.
Wednesday's hearing promises to delve into the science of climate change as well as NEPA policy. The panel will hear from Goldfuss, regulatory lawyer Roger Martella of Sidley Austin LLC, who represents industry clients, and John Christy, a climate scientist at the University of Alabama, Huntsville, who disputes the consensus on human-induced climate change. It will also hear from Ray Clark, president of Rivercrossing Strategies LLC and an expert on NEPA policy.
Schedule: The hearing is Wednesday, May 13, at 10 a.m. in 1324 Longworth House Office Building.
Witnesses: CEQ Managing Director Christy Goldfuss; Roger Martella, partner at Sidley Austin LLC; John Christy, professor of atmospheric science and state climatologist, National Space Science and Technology Center, University of Alabama, Huntsville; and Ray Clark, president, Rivercrossing Strategies LLC.
-
California Businesses Ask Court to Reject Auction of Greenhouse Gas Emissions Credits
May 11, 2015 | BNA Daily Environment Report
By Laura Mahoney
If a state trial court judge's 2013 ruling upholding the California Air Resources Board's auction of greenhouse gas emissions credits is allowed to stand, state agencies would be free to invoke the need for regulations as a way to skirt constitutional limits on new taxes and raise huge amounts of revenue, the California Chamber of Commerce said in its appeal of the lower court ruling (California Chamber of Commerce v. California Air Resources Bd., Cal. Ct. App., No. C075930, case brief 5/6/15).
The chamber continued its arguments made in the lower court that CARB exceeded its authority when it established the greenhouse gas auction and that the prices that businesses pay for emissions credits amount to a tax that required a two-thirds vote of the Legislature.
Briefing began in the case in October, and the National Association of Manufacturers filed its final reply brief as an intervener May 6, completing the briefing schedule before the California Court of Appeal for the Third Appellate District in Sacramento. The court of appeal doesn't have a deadline by which it must schedule arguments.
The case is consolidated with another filed by Pacific Legal Foundation on behalf of tomato processor Morning Star Packing Co. (Morning Star Packing Co. v. California Air Resources Board, Cal. Ct. App., No. C075954, 5/6/15.
The business groups said Sacramento Superior Court Judge Timothy M. Frawley erred in 2013 when he disregarded their arguments that the Legislature didn't give CARB the authority to set up a regulatory program that would create billions of dollars in new revenue.
Further, Frawley erred by misapplying a landmark court ruling to determine whether the auction proceeds are a tax or a fee on greenhouse gas emissions sources, they said (221 DEN A-14, 11/15/13).
CARB Has Option If Program Struck Down
If the appellate court strikes down the cap-and-trade program, CARB can still accomplish the greenhouse gas reduction requirements of A.B. 32, the Global Warming Solutions Act of 2006, with other measures, the chamber said in a reply brief filed May 4. The law calls for the state to reduce emissions to 1990 levels by 2020.
However, if the court upholds the program, it would gut Proposition 13, in place since 1978, which requires a two-thirds vote of the Legislature to approve tax increases.
“If the only constraint on the government's ability to raise taxes is its ingenuity in identifying some ‘regulatory’ purpose as the ‘primary’ purpose of the measure, there can be little doubt of the eventual result—it would eviscerate Proposition 13,” the chamber said.
In its reply brief to the appellate court filed March 19, CARB said the trial court properly recognized that the Legislature gave the board broad authority to design a regulatory program to reduce greenhouse gas emissions, including the authority to adopt “market-based compliance mechanisms” such as cap and trade.
At the time they enacted A.B. 32, lawmakers acknowledged they didn't know what the programs to achieve its goals would be, so they intentionally gave CARB a wide range of options, the board said in its brief.
Tax or Fee?
Frawley also properly ruled that every measure that generates revenue doesn't fall under the definition of tax or fee but can be something else and still comply with Proposition 13.
Quoting from the landmark 1997 California Supreme Court ruling, Sinclair Paint Co. v. State Board of Equalization (15 Cal.4th 866, 876 (1997), CARB said if regulation is the primary purpose of a measure, the mere fact that it also generates revenue does not make the imposition of a tax.
The Sinclair case set a standard for determining whether a state charge is a tax or a fee, saying a charge is a fee if it bears a reasonable relationship to the cost of providing the services tied to the purpose of the fee, the revenue is used only for related purposes and the programs or services it funds have a connection to the fee payer's operations.
Taxes require approval by a two-thirds majority, and fees require a majority vote of the Legislature.
The auction fees, as well as prices paid for reserve sales, aren't fees because they aren't designed to shift the costs of a governmental program onto those who are being regulated, CARB said. They aren't taxes, either.
Were Fees Enacted to Generate Revenue?
The key question is whether the auction fees were enacted for the purpose of generating revenue, CARB said. The purpose of the regulation is to reduce greenhouse gas emissions, and the revenue generation is incidental to the regulatory activity, CARB said.
“Those who buy allowances are not paying a tax—they are merely participating in a market-based regulation,” CARB said.
The Environmental Defense Fund and Natural Resources Defense Council included similar arguments in briefs they filed in March as interveners on behalf of CARB.
In its reply brief filed May 4, the chamber faulted CARB for failing to defend the trial court's ruling that auction fees meet the Sinclair test.
“By failing to argue that the Sinclair Paint test can be met, especially in the face of extensive contrary briefing by CalChamber and other appellants, ARB has effectively admitted that if the Sinclair Paint test applies, it must lose,” the chamber said.
CARB Asked Court to Invent New Charge
The chamber also faulted CARB for asking the court to invent a “new, ill-defined, and wholly-unprecedented category of charge” that is neither a fee nor a tax.
CARB's allowance auctions are projected to result in $11 billion to $70 billion in revenue. Lawmakers have approved plans to spend the revenue on programs that reduce greenhouse gas emissions, including construction of high-speed rail, transit and transportation projects, water efficiency efforts, wetlands restoration and waste diversion.
They are basing the plans on guidance from lawmakers in four bills enacted in 2012 (S.B. 1018, A.B. 1532, S.B. 535, and A.B. 1463).
-
3rd Circuit Weighs 'Cumulative' Air Impacts In Suit Over State's Haze Plan
May 8, 2015 | InsideEPA
By Stuart Parker
U.S. Court of Appeals for the 3rd Circuit judges at oral arguments in litigation over Pennsylvania's regional haze air pollution plan pressed EPA on why it did not force the state to consider "cumulative" emissions impacts in approving the plan, in a case that could set an important precedent on the criteria the agency must use in reviewing such plans.
Environmentalists with the National Parks Conservation Association (NPCA) and other groups are urging the court to agree with their claim that the Clean Air Act requires the agency to consider cumulative impacts when deciding whether regional haze state implementation plans (SIPs) are adequate and lawful. But the Department of Justice (DOJ) on EPA's behalf is arguing to the court that the agency is not required to use such assessments.
In the case, NPCA, et al. v. EPA, environmentalists are challenging EPA's approval of Pennsylvania's haze SIP that requires no additional controls on haze-emitting sources -- mostly coal-fired power plants.
The regional haze program aims to restore visibility in national parks and wilderness areas to natural conditions by 2064. States must craft SIPs to apply emissions controls where necessary under the program's best available retrofit technology (BART) requirements, then submit those plans to EPA for its final approval.
Environmentalists say that Pennsylvania's plan is deficient, because it is based on an insufficiently rigorous air quality analysis that, among other failings, did not consider cumulative effects on visibility of emissions from "BART-eligible" sources. Emissions from Pennsylvania power plants contribute to haze in neighboring states, including New Jersey and New York, which must also craft haze plans.
According to a recording of the April 14 oral arguments, NPCA attorney Charles McPhedran said that "EPA approved a plan to provide for no pollution reductions at any source," that was "based on cursory information." The group says that EPA has required much tougher controls in similar SIPs.
NPCA has challenged the state's reliance on pollution cuts expected from interstate emissions trading under federal programs to meet its BART obligations in the case. But the judges noted that the trading issue is currently before the D.C. Circuit, and declined to consider it.
Instead, the judges focused on other challenges to the state's SIP, and pressed NPCA's position on other issues, such as whether states are required to evaluate "cumulative" haze impacts that consider the impact of a source on multiple parks or wilderness areas, as environmentalists argue the air law requires.
SIP Reviews
DOJ attorney Kate Bowers, representing EPA, said however that the agency is not obliged to require such analysis in haze SIP reviews. The agency has used the technique in federal implementation plans (FIPs), which are agency-crafted emissions control plans that EPA imposes directly on states where they do not craft adequate air-law compliance plans or fail to craft plans at all. But EPA has not demanded cumulative impacts analysis in SIPs, she said.
Bowers conceded that, "parts of Pennsylvania's analysis were not as robust as they might have been, but EPA still acted reasonably" in approving the plan. She said EPA relied on its own supplementary analysis to conclude that because the visibility benefits of additional controls would be so small, Pennsylvania was correct to decide none were required.
The judges -- who were not identified individually when speaking on the recording -- pressed Bowers on how EPA could arrive at that conclusion, given the agency's own statements in its April 30, 2014, rule approving the Pennsylvania plan that the state did not provide enough information for EPA to verify whether the plan was valid.
Bowers replied that where the estimated visibility benefits of applying more controls are so small, EPA has not required that additional control be required in any other state plans.
Attorney Robert Reiley, representing Pennsylvania's Department of the Environmental Protection that is supporting EPA in the case, said, "the point of BART is not to impose controls, the point of BART is to do an analysis," including cost-effectiveness of possible visibility improvements that could be achieved by addition of new controls.
"It is Pennsylvania's contention that we are not required under the law to do a cumulative impact analysis," Reiley said, adding that the state did ask EPA about this point, but the agency did not provide any guidance. Attorney Chet Thompson, representing utility Homer City Generation L.P. in the case, also backed EPA. He said, "like Pennsylvania, we do not believe cumulative impacts is required under the BART analysis."
-
EPA Approval Of Calif. Pesticide Plan Can Stand, Judges Rule
May 8, 2015 | E&E News PM
By Jeremy P. Jacobs
Federal judges today rejected a challenge from California community groups to U.S. EPA's approval of the state's plan to address air emissions stemming from pesticide use.
The 9th U.S. Circuit Court of Appeals deferred to EPA's reasoning in a case that dates back to California's 1994 plan to combat ozone pollution.
In its state implementation plan to meet EPA's ozone standard that year, California included a "pesticide element" that proposed strategies for reducing emissions of volatile organic compounds, or VOCs. VOCs are a precursor to ozone and result from pesticide use in the state's large agricultural area, the San Joaquin Valley.
That plan included documents that seemed to pledge different levels of reduction -- one said a 12 percent cut from 1990 levels and another said 20 percent by 2005.
In 1997, the state decided no additional measures were needed to come into attainment.
Fast forward to 2009, when California submitted a new ozone implementation plan that addressed the use of fumigant pesticides that result in VOC emissions, including setting caps in certain parts of the valley.
EPA approved the plan in November 2012, saying that the new programs satisfied the commitments of the original "pesticide element."
The community groups, which include the Association of Irritated Residents and Ventura Coastkeeper, challenged EPA's approval, claiming that the original document committed the state to a 20 percent reduction.
Further, they point to a separate civil rights complaint that they say shows Latino children are being exposed to a disparate amount of VOCs because the state has not done more.
The San Francisco-based 9th Circuit, however, said that if the terms of the original "pesticide element" were ambiguous, it must defer to EPA. And in that plan, wrote Judge Mary Schroeder, it was not clear which rate the state was committing to.
"The difficulty with this argument is that the Pesticide Element's commitment to reduce VOC emissions in the San Joaquin Valley is ambiguous, because it refers to both a 12 percent reduction and a 20 percent reduction," she wrote for the unanimous three-judge panel.
Further, Schroeder said that when the pesticide element is read in the context of the overall ozone program, EPA's reading makes sense. The valley, she noted, only needed to achieve a 12 percent reduction to reach ozone attainment.
Finally, she deferred to EPA's analysis of the newer fumigant rules.
"EPA reasonably concluded that the Fumigant Regulations were sufficient to keep pesticide VOC emissions below required levels in typical years based on projected emissions data," she wrote.
-
Chris Christie: ‘Global Warming is Real’
May 8, 2015 | The Hill - E2 Wire
By Timothy Cama
New Jersey Gov. Chris Christie broke slightly with many of the announced and potential Republican presidential candidates, saying that climate change is real and that humans contribute to it.
“I think global warming is real. I don’t think that’s deniable,” Christie said at a Keene, N.H., event, according to MSNBC. “And I do think human activity contributes to it.”Christie later added that the degree to which humans contribute to climate change is still subject to debate.
Christie has previously acknowledged a human role in climate change, but he has not recently spoken about his position in depth.
Still, Christie’s policies on climate have attracted the ire of environmentalists.
In 2011, as Christie considered running for the GOP nomination in the 2012 presidential election, he pulled New Jersey out of the Regional Greenhouse Gas Initiative (RGGI), a carbon dioxide cap-and-trade system organized by Northeastern states.
New Jersey’s highest court said last year that Christie’s staff failed to hold a required hearing before pulling out of RGGI.
His administration later held a hearing and again ended the state’s RGGI membership.
At the time, Christie called the RGGI “completely useless plan,” according to The New York Times.
But Christie has also promised to eliminate coal-fired power plants from New Jersey.
NextGen Climate, the election funding group led by billionaire climate activist Tom Steyer, welcomed Christie’s statement.
“We hope to see Gov. Christie lay out his specific plans to address this critical issue soon,” the group said in a statement. “By standing up and providing strong solutions to reduce carbon pollution, our leaders ensure we not only mitigate the impacts of climate change, but also strengthen our economy and create good-paying jobs across the country.”
Nearly all of the declared and potential candidates for the GOP’s 2016 nomination have expressed some level of doubt as to the link between human activity and climate change.
Christie plans to announce this or next month whether he will run for president.
-
(ACC Mentioned) House Panel To Examine Effects Of Deregulation
May 11, 2015 | E&E Daily News
By Sean Reilly
Thirty-five years ago, freight railroads were hurting. Competition from trucks and pipelines was battering their business; tight federal regulation by the Interstate Commerce Commission made it difficult for them to freely set rates or shed unprofitable lines. During the 1970s, most major railroads in the Northeast, including the once-mighty Penn Central, went bankrupt.
Then came the Staggers Rail Act of 1980, named for its sponsor, Rep. Harley Staggers (D-W.Va.). The law, signed by President Carter, largely deregulated the freight rail business by allowing railroads to set rates according to market forces and making it easier to cut costs. Since then, the industry has been "reborn," the Association of American Railroads (AAR) said in a glowing appraisal last year. Profits have rebounded. The industry's resurgence was underscored a few years ago when investor Warren Buffett's holding company took full ownership of Texas-based BNSF Railway Co. for a total stake in the tens of billions of dollars.
But to some shippers, it's time to trip the brakes. While acknowledging the upside to deregulation, they point to the long-running wave of mergers that has put most of the freight rail market under the control of just four companies and left many shippers served by only one railroad.
The impact of the Staggers Act, pros and cons, will be the subject of a Wednesday hearing by the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials. Besides AAR's head, the witnesses will include the chief of the American Chemistry Council, speaking from the shippers' perspective, and the acting chairwoman of the Surface Transportation Board, created by Congress two decades ago as the successor to the Interstate Commerce Commission.
The board is charged with settling disputes over rail rates and services. To its critics in the shipping community, the board, which has a relatively small staff and budget, is unable to handle that role effectively. At a Senate confirmation hearing last week, Daniel Elliott, who served as the board's chairman from 2009 until last year, called its mechanism for handling rate complaints unfair.
"It's very expensive, it's very time-consuming, and I think it's a deterrent to some shippers to bring cases to the board," he told members of the Senate Commerce, Science and Transportation Committee (E&E Daily, May 7). President Obama is seeking to reappoint Elliott to another term on the board; the Senate committee could vote on his nomination as early as this month.
Schedule: The hearing is Wednesday, May 13, at 10 a.m. in 2167 Rayburn.
Witnesses: Deb Miller, acting chairwoman, Surface Transportation Board; Cal Dooley, president and CEO, American Chemistry Council; Edward Hamberger, president and CEO, Association of American Railroads; Linda Darr, president, American Short Line and Regional Railroad Association; and professor John Mayo, McDonough School of Business, Georgetown University.
-
(ACC Mentioned) Rail-Shipper Groups Urge Senate To Return Elliott To STB
May 8, 2015 | Progressive Railroading
Two trade associations representing rail shippers issued statements earlier this week in response to the Senate Committee on Commerce, Science and Transportation's vote to confirm the nomination of Daniel Elliott III to a second term on the Surface Transportation Board (STB).
Consumers United for Rail Equity (CURE) and the American Chemistry Council (ACC) both urged the Senate to confirm Elliott's nomination and pursue STB reform legislation that would address shippers' concerns over freight-rail shipping rates and service.
"ACC has joined with a large collection of trade associations representing a broad cross section of manufacturing, agricultural, and energy industries to urge Congress and the STB to enact reforms that will allow the board to operate more efficiently and effectively," ACC officials said in a statement.
"The STB is a three-member board, meaning that when there is a vacancy, a unanimous vote is needed to resource any pending matter. Given that most of the rate cases before the board are litigated over a number of years, it is important that we do not face any unnecessary delays especially those caused by a board member vacancy," said CURE President David Sauer, who is chief operating officer and senior vice president of Dakota Gasification Co. During his previous tenure as STB chairman, Elliott earned the respect and support of both shippers and railroads for his willingness to consider all sides of an issue and his extensive outreach, Sauer added. -
FY16 Spending Bill Likely To Get Committee Approval
May 11, 2015 | E&E Daily News
By Sean Reilly
The House Appropriations Committee is set to approve a fiscal 2016 transportation spending bill Wednesday containing stiff cuts that are unlikely to survive once the legislation reaches the Senate.
The House bill would trim overall discretionary spending for the Transportation Department by about 5 percent next year to $17.2 billion, according to the draft approved on a voice vote by an Appropriations subpanel late last month. The bill would also fund the Department of Housing and Urban Development.
Following a script that seemed torn from last year's playbook, the subpanel agreed to slice Amtrak's federal subsidy by 18 percent to $1.1 billion and impose an 80 percent cut on the Transportation Investment Generating Economic Recovery (TIGER) grant program that would slash funding from $500 million this year to $100 million in 2016 (Greenwire, April 29).
If Wednesday's markup also follows last year's model, expect amendments from committee Democrats to soften or undo those cuts and then expect those proposed changes to fail on party-line votes as Republicans stick to a framework to keep governmentwide discretionary spending tightly capped.
The House committee endorsed similar reductions last year that were largely reversed by its Senate counterpart. While party control of the Senate has since shifted to the GOP, both Amtrak and the TIGER program appear to enjoy enough bipartisan support to again survive without major reductions. At the House committee's markup, Democrats could also attempt to add money for programs intended to reduce the safety risks posed by oil train shipments.
Although the bill, for example, would increase hazardous materials safety funding from $52 million this year to $60.5 million in 2016, that's still short of the $64.3 million requested by the Obama administration for the account within the Pipeline and Hazardous Materials Safety Administration. The House measure also slights the White House's bid to boost Amtrak subsidies to about $2.5 billion next year and more than double the budget for TIGER grants to $1.25 billion.
Most surface transportation spending, however, comes in the form of mandatory Highway Trust Fund expenditures set separately via the congressional authorization process. The current authorization measure expires at the end of the month. With no replacement introduced as of Friday, the House appropriations bill includes placeholder amounts for next year of about $40.3 billion for highways and $9.5 billion for public transportation.
Schedule: The markup will be Wednesday, May 13, at 10:15 a.m. in 2359 Rayburn.
-
House Panel To Examine Effects Of Deregulation
May 11, 2015 | E&E Daily News
By Sean Reilly
Thirty-five years ago, freight railroads were hurting. Competition from trucks and pipelines was battering their business; tight federal regulation by the Interstate Commerce Commission made it difficult for them to freely set rates or shed unprofitable lines. During the 1970s, most major railroads in the Northeast, including the once-mighty Penn Central, went bankrupt.
Then came the Staggers Rail Act of 1980, named for its sponsor, Rep. Harley Staggers (D-W.Va.). The law, signed by President Carter, largely deregulated the freight rail business by allowing railroads to set rates according to market forces and making it easier to cut costs. Since then, the industry has been "reborn," the Association of American Railroads (AAR) said in a glowing appraisal last year. Profits have rebounded. The industry's resurgence was underscored a few years ago when investor Warren Buffett's holding company took full ownership of Texas-based BNSF Railway Co. for a total stake in the tens of billions of dollars.
But to some shippers, it's time to trip the brakes. While acknowledging the upside to deregulation, they point to the long-running wave of mergers that has put most of the freight rail market under the control of just four companies and left many shippers served by only one railroad.
The impact of the Staggers Act, pros and cons, will be the subject of a Wednesday hearing by the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials. Besides AAR's head, the witnesses will include the chief of the American Chemistry Council, speaking from the shippers' perspective, and the acting chairwoman of the Surface Transportation Board, created by Congress two decades ago as the successor to the Interstate Commerce Commission.
The board is charged with settling disputes over rail rates and services. To its critics in the shipping community, the board, which has a relatively small staff and budget, is unable to handle that role effectively. At a Senate confirmation hearing last week, Daniel Elliott, who served as the board's chairman from 2009 until last year, called its mechanism for handling rate complaints unfair.
"It's very expensive, it's very time-consuming, and I think it's a deterrent to some shippers to bring cases to the board," he told members of the Senate Commerce, Science and Transportation Committee (E&E Daily, May 7). President Obama is seeking to reappoint Elliott to another term on the board; the Senate committee could vote on his nomination as early as this month.
Schedule: The hearing is Wednesday, May 13, at 10 a.m. in 2167 Rayburn.
Witnesses: Deb Miller, acting chairwoman, Surface Transportation Board; Cal Dooley, president and CEO, American Chemistry Council; Edward Hamberger, president and CEO, Association of American Railroads; Linda Darr, president, American Short Line and Regional Railroad Association; and professor John Mayo, McDonough School of Business, Georgetown University.
Congressional Hearing
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
Full Text of Stories Below
Add recipients
Suggested