Preview Newsletter
ACC AM May 28
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(ACC Mentioned) Icynene Introduces New Occupancy Allowances
May 27, 2015 | Walls & Ceilings
Leading spray foam insulation manufacturer, Icynene, introduced new four hour re-occupancy allowances for homeowners and trades in the United States for two of its high-performance spray foam innovations—light-density open cell Icynene Classic Max and medium-density closed cell Icynene ProSeal. -
(ACC Mentioned) Buy Atul; Target of Rs 1600: CD Equisearch
May 28, 2015 | CNBC Moneycontrol
Atul Ltd manufactures value added chemicals by blending basic chemicals and natural resources for diverse industries -agriculture, construction, textiles, pharmaceuticals and automobiles - from its plants in Valsad, Bharuch (Gujarat) and Thane (Maharashtra). According to Year End 2014 Chemical Industry Situation and Outlook published... -
(ACC Mentioned) Minnesota Governor Signs Legislation to Ban Four Flame Retardants in Children's Products
May 28, 2015 | BNA Daily Environment Report
By Mark Wolski
Minnesota Gov. Mark Dayton (DFL) has signed legislation that will ban the use of four flame-retardant chemicals in children's products and upholstery sold in the state. The bill (S.F. 1215), sponsored by Sen. John Marty (DFL) and signed May 19 by the governor, will also prohibit manufacturers from using chemicals to replace those that have... -
(ACC Mentioned) Competing TSCA Reform Bills: A Break in Partisan Fever?
May 27, 2015 | Corporate Counsel
By Joshua A. Bloom and Samir J. Abdelnour
The Toxic Substances Control Act (TSCA) has altered little since it was enacted almost 40 years ago. That may soon change, however. In response to state efforts to implement “green chemistry” regulations (and in particular, California’s Safe Consumer Products Act), Congress made a bipartisan effort in 2013 to reform TSCA... -
(ACC Mentioned) Will Tanzania’s Latest Crackdown On Plastic Bags Work?
May 27, 2015 | BLouin News
By Michael Lerner
Tanzania announced on Tuesday that the manufacturing and importing of plastic bags in the country was now banned. And this time the government hopes to put some teeth into the restrictions– the National Environment Management Council will take legal action against those found in violation of the law. -
(ACC Mentioned) Explosive!! American Chemistry Council Accused Over Links To Discredited Us Fire Safety Group. Flame Retarder Manufacturers, Albemarle, Chemtura And Israeli Chemical Corporation, Conspired To Allow Use Of Dangerous Chemicals In Furniture,
May 27, 2015 | Metropolitan Engineering, Consulting & Forensics
At the center of the dispute are questions over the American Chemistry Council's links to a phony fire safety group © Shutterstock Explosive allegations levelled at the American Chemistry Council (ACC) by a former industry insider are exposing frictions underlying the science and policy of flame retardants. -
TSCA Modernization Act Introduced in House; Key Republicans, Democrats Back Legislation
May 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Rep. John Shimkus (R-Ill.) has introduced legislation to update the Toxic Substances Control Act in limited ways such as giving the Environmental Protection Agency greater authority to obtain toxicity data and other information on chemicals in commerce. Shimkus, chairman of the House Energy and Commerce Subcommittee... -
How California Regulates Toxic Chemicals
May 27, 2015 | The New York Times - The Opinion Pages
By David Roe
Re “Stronger Regulation of Toxic Chemicals” (editorial, May 25): Endless delay in controlling toxic chemicals is so familiar that your editorial takes it for granted, urging a mere 20 chemical reviews a year instead of the Senate bill’s proposed pace of five a year. But what even reformers ignore is the 300-plus chemicals that California regulators... -
Flame Retardant Being Added to TRI List Among Four New Proposals in EPA's Agenda
May 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies that make or use polystyrene foam are among the types of facilities that could be required to report their air, water and soil releases of the flame retardant hexabromocyclododecane, under a proposed Toxics Release Inventory rule the Environmental Protection Agency is developing, the agency said in its recently released regulatory... -
Groups Ask Michigan to Shut Down Enbridge Pipeline, Evaluate Risks to Mackinac Straits
May 28, 2015 | BNA Daily Environment Report
By Nora Macaluso
Environmental groups are asking Michigan leaders to shut down a 62-year-old Enbridge Inc. pipeline running through the Straits of Mackinac until more is known about the dangers posed to the Great Lakes in the event of an oil spill. “The law imposes on the State of Michigan a general duty to protect the Great Lakes,” For Love of Water... -
Federal Government Orders Pipeline Company To Clean California Oil Spill
May 27, 2015 | Reuters
By Steve Gorman and Alex Dobuzinskis
The federal government on Wednesday ordered a company at the center of a Southern California oil spill to continue its efforts to clean up the pipeline breach that dumped crude onto a pristine stretch of shoreline and into the Pacific Ocean. The order from the U.S. Environmental Protection Agency (EPA) and the Coast... -
A Relic of California’s Oil Past Haunts State With Sea Spill
May 27, 2015 | Bloomberg
By Lynn Doan
A pipeline the oil market had all but forgotten resurfaced like a painful memory last week, spilling 500 barrels of heavy oil into the Pacific Ocean. Line 901. A quarter century ago, it was a pipeline full of promise. Today, it’s full of -- not much, really. Before it leaked on May 19, pouring viscous crude into the waters off California’s coast, the 24-inch... -
Billions Over Budget. Two Years After Deadline. What’s Gone Wrong For The ‘Clean Coal’ Project That’s Supposed To Save An Industry?
May 27, 2015 | Politico
By Darren Samuelsohn
If coal has a future, it lies here, off a state road lined with churches, crawfish billboards and boarded-up houses. One of the poorest places in America, this is also home to one of the most expensive power plants ever built. The Kemper County Energy Facility is the showcase for the decades-old dream of “clean coal” — the idea that the ... -
Those Who Forget History in Texas are Doomed to Repeat It
May 27, 2015 | Environmental Defense Fund
By Elena Craft
Recently, the Texas Attorney General Ken Paxton’s office announced plans to challenge the U.S. Environmental Protection Agency’s (EPA) proposed Clean Power Plan, which would place limits on carbon emissions from existing power plants for the first time in the country. A few days afterward, Texas Governor and former State Attorney ... -
Petition Seeks Reconsideration of Decision To Remand Greenhouse Gas Permitting Rule
May 28, 2015 | BNA Daily Environment Report
By Andrew Childers
A federal appellate court's decision to remand and not vacate the Environmental Protection Agency's greenhouse gas permitting requirements is inconsistent with U.S. Supreme Court guidance and should be reconsidered, groups advocating limited government and free enterprise said in a petition... -
Industry Asks D.C. Circuit To Rehear GHG Permit Suit Over De Minimis Issue
May 27, 2015 | InsideEPA
By Dawn Reeves
More than a dozen industry groups are asking the U.S. Court of Appeals for the District of Columbia Circuit to reconsider an April decision that let EPA determine how to interpret a Supreme Court ruling limiting the scope of its greenhouse gas (GHG) permit program, rather than blocking the agency from permitting GHGs until it sets ... -
EPA Air Toxics 'Completion' Finding Defends Underlying Emissions Rules
May 27, 2015 | InsideEPA
By Stuart Parker
EPA has finalized its finding that it has completed a Clean Air Act mandate to regulate air toxics from sources that represent 90 percent of emissions of seven hazardous air pollutants (HAPs), and is rejecting what it calls advocates' “collateral attack” on years-old rules underlying the conclusion that it has met the air law requirement. -
Chevron, ExxonMobil Investors Show Limited Support for Climate Proposals
May 28, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The chief executive officers of Chevron Corp. and ExxonMobil Corp. faced questions from some of their shareholders on how they are handling climate change and other environmental risks, but investors overall showed little interest at annual meetings May 27. Using shareholder resolutions, investors had asked both companies... -
ExxonMobil Shareholders Reject Resolutions on Climate, Fracking
May 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Shareholders of Exxon Mobil Corp. overwhelmingly rejected resolutions Wednesday on the company’s climate change impact and the effects of hydraulic fracturing. The resolutions by activist shareholders would have set company goals for greenhouse gas reduction, appointed a climate expert to the board and mandated a report on... -
What to Watch After Congressional Recess: June Shapes Up as Key for Appropriations
May 28, 2015 | BNA Daily Environment Report
By Erik Wasson
Look for June to be a pivotal month on Capitol Hill for the fiscal year 2016 appropriations process. In the House, Speaker John Boehner (R-Ohio) and his lieutenants will see if they have the votes for transportation and health-care spending cuts opposed by Democrats. Senate Majority Leader Mitch McConnell (R-Ky.) in the coming weeks will test... -
Ruling Ups the Ante in Long-Delayed EPA Superfund Financial Assurance Rules
May 28, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A D.C. Circuit court order represents a “last chance” for the Environmental Protection Agency to produce the Superfund financial assurance regulations Congress ordered 30 years ago, a lawyer for environmental groups told Bloomberg BNA May 27 (In re Idaho Conservation League, D.C. Cir., No. 14-1149, 5/19/15). -
U.S. Climate Change Targets Achievable, But More Cuts Possible, Report Says
May 28, 2015 | BNA Daily Environment Report
By Andrew Childers
The U.S. commitment to reduce its greenhouse gas emissions by at least 26 percent by 2025 is achievable, but further reductions are possible with stronger regulations and a greater emphasis on energy efficiency, the World Resources Institute said. The U.S. can achieve that emissions reduction target using existing executive... -
Report: U.S. Can Meet Climate Target With Stronger Policies
May 28, 2015 | PoliticoPro
By Andrew Restuccia
The United States can meet — and maybe even surpass — its 2025 greenhouse gas emissions target without help from Congress, but it will have to go far beyond the policies in President Barack Obama’s climate change plan, according to a new report due out Wednesday. The report, from the World Resources Institute, says the United States... -
North American Ministers Form Climate Group
May 28, 2015 | BNA Daily Environment Report
Energy ministers from the U.S., Canada and Mexico have agreed to create a new working group on climate change and energy. The working group is “absolutely critical” to efforts to combat climate change through the deployment of innovative renewable energy technologies, modernization of the electricity grid and better energy efficiency... -
Tom Steyer Aims To Get GOP Candidates ‘On The Record’ On Climate
May 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Billionaire climate activist Tom Steyer said he does not support any of the Republican candidates for president but that it’s still important to get involved in the primary campaign. Steyer told Gwen Ifill of PBS "NewsHour" that he would be thrilled if a Republican candidate ended up being stronger than a Democrat on the climate change and... -
The Montreal Protocol Is Healing Earth’s Ozone Hole
May 27, 2015 | Chemical & Engineering News
By Stephen K. Ritter
Saving Earth’s protective stratospheric ozone layer from destruction was a major environmental crusade some 30 years ago, leading to the restriction and phase out of halocarbons and other ozone-depleting substances. But what would Earth look like today if the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer... -
Obama’s Water War
May 27, 2015 | PoliticoPro
By Jenny Hopkinson
The Obama administration opened its newest offensive in the water wars on Wednesday, championing protections for waterways and wetlands despite a fierce counterattack from powerhouse industries like agriculture, oil and home-building — and their supporters in Congress. -
EPA Chief: We Made ‘Substantial Changes’ to Water Regulations
May 27, 2015 | The Hill - E2 Wire
By Devin Henry
Environmental Protection Agency (EPA) administrator Gina McCarthy said officials made “substantial changes” to the clean water rule it finalized Wednesday after sorting through public comments on the proposal. The EPA’s rule designates which small waterways the agency can regulate under the Clean Water Act. Republicans... -
EPA Defends Approach To 'Significant Nexus' Legal Test In Final CWA Rule
May 27, 2015 | InsideEPA
By Bridget DiCosmo
EPA is defending the legality of its “significant nexus” approach in its final Clean Water Act (CWA) rule that it will use to help determine whether waterbodies are subject to the law, as critics say the agency failed to quantify when waters are “significant” and that the method is too similar to an approach the Supreme Court has already rejected. -
Other Crude-by-Rail Issues Take Spotlight As Tank Car Rule Moves to Litigation Phase
May 28, 2015 | BNA Daily Environment Report
By Rachel Leven
The federal government and others are moving to address safety and environmental issues associated with crude-by-rail services beyond those associated with a recently finalized Transportation Department rule, a department official and other speakers said May 27. “It's worth noting that there's a whole host of local questions... -
Schumer Formally Introduces Crude-by-Rail Bill
May 28, 2015 | BNA Daily Environment Report
Sen. Charles Schumer (D-N.Y.) May 22 formally introduced a bill that would make requirements for moving flammable liquids, such as crude oil, by rail more stringent than a recently released Transportation Department final rule. The Eliminating Dangerous Oil Cars and Ensuring Community Safety Act (S. 1462) would make the final deadline...
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(ACC Mentioned) Icynene Introduces New Occupancy Allowances
May 27, 2015 | Walls & Ceilings
Leading spray foam insulation manufacturer, Icynene, introduced new four hour re-occupancy allowances for homeowners and trades in the United States for two of its high-performance spray foam innovations—light-density open cell Icynene Classic Max and medium-density closed cell Icynene ProSeal.
The four hour re-occupancy allowance follows many months of detailed research, testing, and assessment of the refined Icynene Classic Max and Icynene ProSeal spray foam products based on protocols and procedures developed by the American Chemistry Council—Center for the Polyurethanes Industry (ACC-CPI).
“Through full scale testing and research reviewed by third party research chemists and toxicologists, on our low VOC formulations, re-occupancy times for homeowners can be significantly reduced—from 24 hours to four hours. Refinements to our Icynene Classic Max and Icynene ProSeal spray foam, combined with the use of higher workplace ventilation rates of 40 Air Changes per Hour (ACH), have helped us reduce exposure risks to spray foam installers, non-spray foam trades, and most especially for the homeowner,” said Icynene Vice President of Engineering, Paul Duffy.
“This is great news for building owners of all kinds. The reduced re-occupancy allowances mean that homeowners no longer need to be displaced for multiple days when having spray foam insulation installed into their homes. They are able to re-occupy their home and enjoy the advantages of spray foam insulation almost immediately. Plus, the new re-entry and re-occupancy allowances present builders and general contractors with a tremendous opportunity to incorporate Icynene’s high-performance, low VOC spray foam innovations into their upcoming projects due to the minimal impact on construction schedules,” said Duffy.
The new re-entry and re-occupancy allowances for Icynene Classic Max and Icynene ProSeal are based on an active ventilation rate of 40.0 ACH. For certified spray foam installers, the low VOC Icynene Classic Max and ProSeal formulations also feature low odor properties a cleaner spray application for better sprayability and less clean-up and gun clogging.
The new re-entry and re-occupancy allowances are applicable only for installations of Icynene Classic Max and Icynene ProSeal in the United States. -
(ACC Mentioned) Buy Atul; Target of Rs 1600: CD Equisearch
May 28, 2015 | CNBC Moneycontrol
Atul Ltd manufactures value added chemicals by blending basic chemicals and natural resources for diverse industries -agriculture, construction, textiles, pharmaceuticals and automobiles - from its plants in Valsad, Bharuch (Gujarat) and Thane (Maharashtra).
According to Year End 2014 Chemical Industry Situation and Outlook published by The American Chemistry Council (ACC), global chemistry production volumes would grow by 3.6% in 2015 and 3.9% in 2016 (previous estimate: 4.1% for each of the two years) driven by robust growth in developing nations of Asia-Pacific and Africa & the Middle East. US too would grow at a fast clip (3.7% in 2015 and 3.9% in 2016) not least due to dollar appreciation coupled with increased supply of unconventional oil and gas putting downward pressure on oil prices. Strong growth is expected in inorganic chemicals, organic chemistry, plastic resins and synthetic rubber as export markets revive and domestic end-use markets further improve.
Given uncertainty in crude oil market, we expect Atul to report another year of modest growth. Despite some stress in the polymer and crop protection businesses in the short term, other businesses such as colors and aromatics would stay the course. Sparked by robust growth in high performance pigments, digital printing inks and textile chemicals, the colors business would report sales growth in mid to high teens over the next few years.
For the pharmaceutical business, Atul has chalked out a multipronged strategy: grow sales in Japan and select European countries; enter new markets like Russia, Iran and Korea; boost CRAMS business with strategic customers; resort to inorganic route to expand business. Realizing the potential of Indian epoxy market, Atul has planned to increase its market share in select epoxy hardeners; needless to mention about its strategy to augment sale of high margin products.
To rev up its sales, Atul plans to launch value added products across its product portfolios. Apart from introducing value added downstream products, the aromatics business would expand product portfolio of personal care and flavors & fragrance industries. To come out of sluggishness, crop protection business would unveil new products coming off-patent besides expanding brand business pan –India.
After having spent Rs 125 crs in FY15, Atul has announced that projects entailing investment of Rs 330 crs - potential to generate sale of nearly Rs 800 crs- are in progress. It commissioned several new products last fiscal, including bulk actives plant, intermediate expansion project for contract manufacturing of crop protection products and BLR project (polymers). Other worth noting projects commissioned last fiscal include solvent recovery plant for colors business, formulation facility for digital inks, pilot plant for high performance pigments and plant for RF resins.
"The stock currently trades at 13.6x FY16e EPS of Rs 85.21 and 11.6x FY17e EPS of Rs 99.97. Shortfall in last fiscal's earnings has prompted us to cut back our current fiscal earnings estimates by 15%. Business risks looms for the sharp meltdown in crude oil prices could make matters worse. Yet the current valuation provides safety from innate risks, not counting uptick in earnings from sharp recovery in crude oil prices. We, therefore maintain a buy rating on the stock with price target of Rs 1600 (previous target: Rs 1706) based on 16x FY17e earnings over a period of 9-12 months", says CD Equisearch report.
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May 28, 2015 | BNA Daily Environment Report
By Mark Wolski
Minnesota Gov. Mark Dayton (DFL) has signed legislation that will ban the use of four flame-retardant chemicals in children's products and upholstery sold in the state.
The bill (S.F. 1215), sponsored by Sen. John Marty (DFL) and signed May 19 by the governor, will also prohibit manufacturers from using chemicals to replace those that have been banned if the replacement chemicals have been shown to harm fetal development, cause cancer, disrupt endocrine or hormone systems or damage the nervous or immune systems.
Under the legislation, which will take effect July 1, 2018, no manufacturer or wholesaler will be able to manufacture, sell or distribute children's products or upholstered residential furniture that contain more than 1,000 parts per million of the chemicals tris(1,3-dichloro-2-propyl)phosphate, decabromodiphenyl, hexabromocyclododecane or tris(2-chloroethyl)phosphate.
Kathleen Schuler, director of the Healthy Kids & Families program for Conservation Minnesota, told Bloomberg BNA May 27 that while the bill was compromise legislation, it should benefit Minnesotans by removing flame-retardant chemicals that can affect the health of both young children and firefighters.
She said state firefighters were key in getting the bill passed, testifying that the flame-retardant chemicals don't give firefighters substantially more time in fighting fires but significantly increased the carbon monoxide and soot resulting from fires. The smoke and soot can lead to increased cancer rates among firefighters.
Schuler said Conservation Minnesota pushed for the ban to reduce children's exposure to the flame retardants. Childhood exposure to the chemicals, she said, can cause developmental problems as well as cancer.
Bill Modified to Gain Approval
According to Schuler, S.F. 1215 was significantly modified in order to gain approval in the Minnesota House, which is controlled by Republicans.
The bill that was initially approved by the Democratic-Farmer-Labor-controlled Senate included 10 flame-retardant chemicals, she said, and applied also to textiles, draperies and carpet padding. The effective date was also pushed up to 2017, she said.
She said the final bill was still good legislation in that, while at least two of the chemicals banned are being phased out by manufacturers, it provides that replacement chemicals can't be used if credible scientific evidence shows they likely could harm child or fetal development, cause cancer or genetic damage, disrupt the endocrine or hormone system or damage the nervous or immune system.
S.F. 1215 also requires the state health department to study flame retardants over the next several months. The bill requires the department to look at laws and regulations in other states regarding flame retardants, fire safety standards and practices and studies on the negative effects of flame retardants on firefighters.
Report to be Submitted in 2016
Schuler said the department's report on its study will be presented to the 2016 Minnesota Legislature. The results of the study could be the basis for future legislation to expand the ban on chemicals, she said.
Marty, the bill's sponsor, was unavailable for comment, as were officials with the American Chemistry Council.
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(ACC Mentioned) Competing TSCA Reform Bills: A Break in Partisan Fever?
May 27, 2015 | Corporate Counsel
By Joshua A. Bloom and Samir J. Abdelnour
The Toxic Substances Control Act (TSCA) has altered little since it was enacted almost 40 years ago. That may soon change, however. In response to state efforts to implement “green chemistry” regulations (and in particular, California’s Safe Consumer Products Act), Congress made a bipartisan effort in 2013 to reform TSCA and more substantially regulate chemical usage in the United States. Although that effort failed, two new competing bills have been introduced that address similar issues, but with very different approaches.The Background
TSCA originally was enacted to assess risks from chemicals before they entered the marketplace, and to regulate those chemicals that presented an unreasonable risk to human health or the environment. However, over the course of its nearly 40-year history, TSCA’s glaring limitations have become more and more apparent. Most notably, evidence that a chemical poses a risk of unreasonable harm is required before the U.S. Environmental Protection Agency (EPA) may even initiate testing and, if appropriate, regulation. As a result of that high hurdle, very few chemicals have been regulated under TSCA.
In light of these limitations, and various state green chemistry initiatives, in 2013 Sen. David Vitter, R-Louisiana, and the late Sen. Frank Lautenberg, D-New Jersey, introduced the Chemical Safety Improvement Act (CSIA). The CSIA would have, among other things, applied a safety standard of “no unreasonable risk” to human health or the environment from exposure to a chemical substance under “intended conditions of use.” It also would have required the EPA to use “best available science” and “science-based criteria” in developing a framework for the agency’s decision making, and to establish a chemical prioritization screening process and safety assessment processes.
Most importantly, the CSIA in many ways would have shifted the presumption for the regulatory trigger from what was effectively “no regulation unless harm can be demonstrated” to “we will test and regulate unless no unreasonable risk can be established.” What proved fatal to that 2013 effort, however, was a broad preemption provision that likely would have neutered state programs. For example, the material elements of California’s aggressive “green chemistry” regulation, which screens and regulates not only chemicals, but also “priority products” that contain those chemicals, could be rendered unenforceable if those federal preemption provisions were enacted.The Competing Bills
The TSCA reform effort has in the past few months been resurrected by a pair of bills, both of which to varying degrees have a basis in the CSIA. The first, which in many ways closely tracks the CSIA, but with changes designed to appeal to critics of the 2013 effort, is the Frank R. Lautenberg Chemical Safety for the 21st Century Act, introduced by Sens. Tom Udall, D-New Mexico, and Vitter on March 10. However, just two days after the Udall-Vitter bill was introduced, Sens. Barbara Boxer, D-California, and Ed Markey, D-Massachusetts, introduced the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, which is much more aggressive than either the CSIA or the Udall-Vitter bill. Although the two newer bills overlap in many respects, there are significant differences between them that could prove an insurmountable hurdle to achieving compromise.
There are a number of similarities. Both retain the fundamental presumption-shifting paradigm that was presented in the CSIA. Both address testing, active chemical identification, confidential business information and chemical imports/exports in similar ways. Under either bill, EPA would have to show that testing is needed before the agency can require the development of new information for a chemical. Each bill would also require manufacturers and processors to identify active chemicals, which EPA must then review, prioritize and regulate as needed. For companies seeking protection from disclosing confidential business information, both bills would preserve such claims for 10 years with the possibility of renewal. They also would prohibit importation of EPA-banned chemicals and exportation of chemicals that do not, or are not likely to, meet the bills’ respective safety standards.
Notwithstanding those similarities, the bills differ in several significant ways. The two most contentious areas of divergence are in the safety standard each bill sets forth and in their contrasting treatment of state law preemption. Under the Udall-Vitter bill, EPA would not regulate a chemical if the agency finds that “no unreasonable risk of harm to health or the environment will result from exposure” to the chemical in its intended or foreseeable use. Opponents of the Udall-Vitter bill contend that safety standard too closely tracks the existing TSCA standard of “unreasonable risk to health or to the environment,” which has proved generally ineffective. In contrast, the Boxer-Markey safety standard would require EPA to regulate a chemical unless it finds “with reasonable certainty . . . that no harm to human health or the environment will result” from exposure to the chemical. Requiring a finding of “reasonable certainty” would undoubtedly prove more costly and time-consuming to EPA and regulated entities than the standard proposed under the Udall-Vitter bill.
Although there may be some middle ground that ultimately may be found on the competing safety standards, finding a compromise on the varying state law preemption provisions in the respective bills may prove a much more difficult task. Whereas the Boxer-Markey bill would unconditionally permit more stringent state regulation, the Udall-Vitter bill, while reining in the more absolute preemption elements of the CSIA, nonetheless retains the opportunity for substantial preemption. Supporters of the Udall-Vitter bill argue that state preemption is necessary to create predictability and eliminate the piecemeal approach of having different states regulate the same chemical substances in vastly different ways. However, the bill’s critics contend that its preemption structure eliminates a layer of protection from exposure to potentially hazardous chemicals that state laws and regulations may otherwise provide.
The Udall-Vitter and Boxer-Markey bills have several additional differences that would impact the costs associated with compliance. For example, while both bills authorize EPA to impose fees on regulated entities to cover the agency’s administrative costs, the Udall-Vitter bill caps those fees at 25 percent of EPA’s costs. The Boxer-Markey bill would allow EPA to set fees to recover all of its administrative costs. In addition, although the Udall-Vitter bill would eliminate cost as a consideration when assessing chemical prioritization and safety assessments and determinations, costs would be considered before applying specific restrictions. Under the Boxer-Markey bill, on the other hand, costs could be considered only after reaching a $100 million threshold, which would effectively eliminate any cost-benefit consideration.
Furthermore, chemical identification procedures and timelines differ between the two. Both bills would require EPA to publish an initial list of high-priority chemicals. Under Udall-Vitter, EPA would have to identify 10 high-priority and 10 low-priority chemicals within six months of enactment and ensure that it had identified and addressed 25 high-priority and 25 low-priority chemicals within the first five years. Boxer-Markey’s prioritization and evaluation structure is much more aggressive, requiring the agency to identify 15 high-priority chemicals in the first six months and at least 15 additional high-priority chemicals annually for four years thereafter. The bill is silent on identification of low-priority chemicals.
Moreover, under Udall-Vitter EPA may initiate the required safety assessment and determination within six months of enactment, Boxer-Markey provides that EPA must initiate required safety assessment and determination within that time frame. Further, once a chemical is designated as high priority under Boxer-Markey, EPA must complete its safety determination within two years. In comparison, under Udall-Vitter, EPA would have three years to complete a safety determination for a high-priority chemical. The Boxer-Markey bill also imposes specific requirements on EPA, not included in the Udall-Vitter bill, for addressing asbestos and persistent, bioaccumulative and toxic (PBT) chemicals.
The Udall-Vitter bill enjoys bipartisan support and is backed by groups as diverse as the American Chemistry Council and the Environmental Defense Fund. On the other hand, the Boxer-Markey bill does not appear to have the same level of support, either in the legislature or the private sector. Whether either bill can be passed, in their respective current forms or as amended, or whether a compromise bill can be forged and agreed upon, remains to be seen. If TSCA reform legislation does find a way to the president’s desk for signature, however, it will represent a significant bipartisan success rare in these days of partisan division.
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(ACC Mentioned) Will Tanzania’s Latest Crackdown On Plastic Bags Work?
May 27, 2015 | BLouin News
By Michael Lerner
Tanzania announced on Tuesday that the manufacturing and importing of plastic bags in the country was now banned. And this time the government hopes to put some teeth into the restrictions– the National Environment Management Council will take legal action against those found in violation of the law.
Zanzibar has been far ahead of the rest of the country on this issue, and is the successful model that can be emulated nationwide. The city banned the use of plastic bags under 100 microns in 2005, and offenders are fined up to $2,000 and/or six months in prison. In 2006 Tanzania first prepared regulations regarding the use of thin plastic bags (those under 30 microns, which are not durable and are easily blown away in the wind).
But the reality on the ground remained exactly the same for years, with the uncontrolled accumulation of plastic bags causing enormous problems. The bags (most often littered everywhere) were far worse than just a nationwide eyesore. They contaminated the environment, choked wildlife, and clogged storm drains. Furthermore, the common practice of using plastic bags to store hot food might cause cancer, blindness, and indigestion, according to the Deputy Minister of State for Environment in the Vice-President’s Office, Stephen Masele. Even when disposed of in a landfill, the bags take up to 1,000 years to decompose, while burning them is hardly a better option, given the noxious fumes they release.
On September 5, 2011, Zanzibar banned the importation, manufacture, and use of all plastic bags and encouraged the use of bio-degradable materials instead, according to AllAfrica.com. And implementation has gone over well, with paper bags now the standard in shops. But Tanzania’s national govenment lagged far behind, and only on August 15, 2013, did it issue a strong directive banning plastic bags. While it made for good headlines, the ban did not make any difference in daily transactions, where thin plastic bags were routinely given out at shops for all purchases. Tuesday’s announcement banning the manufacturing and imports of plastic bags, to be enforced by legal penalties, will hopefully be a turning point for the country.
For a regional reference, South Africa introduced laws in May 2003 forcing shopkeepers to hand out thicker, stronger plastic bags that are easily recycled– or face a $12,260 fine or 10 years in jail. Prior to this, the country’s environmental authorities estimated that 8 billion bags were being used per year, and most were littered. Things have much improved since then.
But the number of plastic bags used in the U.S. dwarfs anywhere else. Out of a global total estimated to be between 500 billion and 1 trillion plastic bags used per year, the U.S. accounts for 380 billion, with 90% used just once before disposal. Individual municipalities have taken initiatives to ban plastic bags, but not without difficulties. Sometimes it is from Republican legislators opposed to any new regulations affecting citizens’ choices, regardless of environmental impact. But the U.S. plastic manufacturing industry is also a powerful opponent of bans.
That sector is booming with low oil and natural gas prices, having added 60,000 jobs since mid-2009 (a 12% increase). Plastic manufacturing companies have announced $47 billion in investments since 2010, and the American Chemistry Council, a trade group, projects that the industry will add 127,500 direct jobs over the next decade.
While plastic bag bans would reduce demand and potentially threaten some of these jobs, there may be a middle ground: companies have spent millions developing plastic bags that biodegrade rapidly. Combined with increased recycling efforts, this would be a solid compromise.
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May 27, 2015 | Metropolitan Engineering, Consulting & Forensics
At the center of the dispute are questions over the American Chemistry Council's links to a phony fire safety group © Shutterstock
Explosive allegations levelled at the American Chemistry Council (ACC) by a former industry insider are exposing frictions underlying the science and policy of flame retardants.
Before it was discredited and disbanded in the summer of 2013, the Citizens for Fire Safety Institute (CFFSI) purported to be a non-profit coalition of fire professionals, burn centres, doctors, fire departments and industry leaders advocating for the highest fire safety standards.
But when the organization was exposed as primarily a front group for the chemical industry, and flame retardant manufacturers in particular, the American Chemistry Council (ACC) immediately distanced itself and said neither its staff nor its resources were used to support the organizations activities.
But now the ACC’s story is being challenged by Grant Gillham, a consultant who was hired to develop a national public relations campaign promoting flame retardants through the CFFSI. Gillham says he had a six-year relationship with the ACC and three of its members who manufacture flame retardants – Albemarle, Chemtura and Israeli Chemical Corporation – that began in 2007.
Together, he says, they set up the institute as a non-profit whose role was to advocate for the use of flame retardants in furniture, home goods and building materials. At all times, he says, the institute coordinated closely with the ACC’s senior staff and legal counsel.
Over its five years of operation, the CFFSI’s advocacy campaign defeated 58 of 60 separate piece of legislation that addressed flame retardants in 21 states, according to Gillham. ‘Intimately involved’‘They were intimately involved in the day-to-day operations of our activities,’ he says of the ACC. But when the Chicago Tribune broke the story of the industry front group for flame retardants he says the ACC painted a picture of the CFFSI as a rogue entity that did not meet its ethical standards.
‘ACC did not support Citizens for Fire Safety. End of story’
The ACC continues to deny any involvement with the CFFSI to this day. Back in June 2012 the ACC’s president and chief executive, Cal Dooley, wrote to a member of the Maine state legislature and said: ‘ACC is not affiliated with the Citizens for Fire Safety, and neither ACC staff nor resources were used to support activities undertaken by the group.’
Dooley’s proclamation is echoed by others at the ACC. The council’s vice president of communications, Anne Kolton, tells Chemistry World: ‘ACC did not support Citizens for Fire Safety. End of story.’ She insists that the ACC was not involved in the creation or operation of the CFFSI. ‘We did not provide any financial support and any interaction was infrequent and at the encouragement of the companies involved in both of the separate groups,’ Kolton says.
But Gillham says she ‘is not telling the truth’. In fact, emails and other documents that he gave to the Center for Public Integrity do indicate that ACC staff members were coordinating with Gillham on flame retardant advocacy efforts.
These records also seem to support the theory that ACC employees were organising and participating in meetings with Gillham and the three member companies comprising the CFFSI. However, Kolton notes that Gillham doesn’t even appear to be included in many of the allegedly incriminating emails that he has provided.
Steve Levan, the vice president of advocacy for Albemarle, says the CFFSI was ‘critical to raise awareness of the importance of fire safety and to give a voice to those who want to speak out on this important public issue’. But he notes that Albemarle moved all of its advocacy activities to the ACC’s North American Flame Retardant Alliance in 2012.
‘While we will not comment on what might motivate someone to make the claims that are being made, we will say that CFFSI took no direction from the American Chemistry Council,’ Levan adds. He notes, however, that the three companies participating in the CFFSI would communicate with the ACC when broader issues of chemical industry relevance were involved. ‘But, neither CFFSI nor its directors were accountable to ACC,’ Levan states. Safe scienceNevertheless, Gillham maintains: ‘The ACC essentially allowed us to go out and provide representations as to the science of the safety and the effectiveness of fire retardants, and no one gave us any science to support those claims.’
Gillham says he had requested independent peer review of the member companies’ science by a major university, but that never happened because it was going to cost approximately $20,000 (£13,000).
‘ACC is just trying to distance itself from the controversy,’ says Duke University environmental chemist Heather Stapleton. Stapleton has conducted research on flame retardants and found that about 80% of the baby products her team examined – such as car seats, nursing pillows and strollers – contained various flame retardants.
Stapleton says the science shows that Americans are exposed to numerous flame retardants, and this contact has been associated with hormone regulation and cognition problems. Meanwhile, Stapleton argues that the benefits of such chemicals remain unclear. In fact, she says her research suggests they offer no benefits in a house fire.
In contrast, Albemarle’s Levan insists that there are ‘decades of independent and peer reviewed research that support the fact that flame retardants save lives and are safe’. He points to the websites of Albemarle and the ACC’s North American Flame Retardants Alliance.
Meanwhile, Gillham is now backing new legislation introduced in California that would require manufacturers to add labels to products for children, such as car seats and nursing pillows, if they contain flame retardants. Gillham says that the media attention surrounding this recent bill is what prompted him to go public with his allegations. ‘I thought it was a good time to get my point injected into the debate,’ he tells Chemistry World. -
TSCA Modernization Act Introduced in House; Key Republicans, Democrats Back Legislation
May 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Rep. John Shimkus (R-Ill.) has introduced legislation to update the Toxic Substances Control Act in limited ways such as giving the Environmental Protection Agency greater authority to obtain toxicity data and other information on chemicals in commerce.
Shimkus, chairman of the House Energy and Commerce Subcommittee on the Environment and the Economy, introduced the TSCA Modernization Act of 2015 ( H.R. 2576) on May 26. The subcommittee unanimously approved a draft version of the bill May 14 (94 DEN A-2, 5/15/15).
The bill is co-sponsored by Reps. Paul Tonko (D-NY), ranking member of the subcommittee, Fred Upton (R-Mich.),chairman of the full Energy and Commerce Committee, and Frank Pallone Jr. (D-N.J.), ranking member of the full committee.
Major Changes Not Expected
The bipartisan and committee leadership support signal that the bill is unlikely to be substantially challenged when it is marked up.
“The TSCA Modernization Act improves protections for public health and the environment while encouraging continued innovation, growth, and American leadership in this vital economic sector. We look forward to working with our colleagues to get this breakthrough bill through committee and the House on a strong bipartisan vote,” the four co-sponsors said in a statement the full committee issued May 27.
H.R. 2576 will be marked up the week of June 1 by the full committee, Shimkus told reporters May 21 (99 DEN A-17, 5/22/15).
The introduced bill is substantially the same as the draft version approved by the subcommittee, according to a summary of H.R. 2576 released by the committee May 27.
Workability Issues
Time remains to address pragmatic implementation concerns in the House's “almost surgical” TSCA-reform bill as well as the more expansive Senate bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), the law firm Bergeson & Campbell P.C. said in a May 20 analysis of the draft TSCA Modernization Act.
The Senate Environment and Public Works Committee approved S. 697 on April 28 (82 DEN A-9, 4/29/15).
“Both the Senate and House legislation appear to lack a clear outline of how the ambitious goals of the proposals can readily or timely be achieved,” Bergeson & Campbell wrote.
For example, there is no discernible congressional push under the House proposal for the EPA to obtain toxicity and other chemical data it would need to tee up a chemical in commerce for risk evaluation, the law firm wrote.
Focus on Few Issues
Much of the time, the focus and rhetoric regarding both bills has been centered on a few issues, the analysis continued.
“While important for legislative triumph (such as compromise on any state preemption provision), will not necessarily address many of the issues we identify here as crucial for future programmatic success,” Bergeson & Campbell wrote.
Using different approaches, both the House and Senate bills allow some state chemical regulations and laws to continue while preempting many future state chemical regulations.
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How California Regulates Toxic Chemicals
May 27, 2015 | The New York Times - The Opinion Pages
By David Roe
Re “Stronger Regulation of Toxic Chemicals” (editorial, May 25):
Endless delay in controlling toxic chemicals is so familiar that your editorial takes it for granted, urging a mere 20 chemical reviews a year instead of the Senate bill’s proposed pace of five a year. But what even reformers ignore is the 300-plus chemicals that California regulators managed to review — and set enforceable limits on — at a pace of over 100 chemicals per year, once the right incentives were put in place by a 1986 ballot initiative.
Most of those same chemicals, ones causing cancer or birth defects, are still stuck in the Environmental Protection Agency waiting line a quarter-century later. But in California, they have been effectively regulated already, using the same science that federal laws like the Toxic Substances Control Act call for. In other words, the E.P.A. could make a hundred years’ worth of progress in safety assessments of high-priority chemicals just by being allowed to take a copying machine out to Sacramento.
Delay may be the chemical companies’ preference, but no one should assume it is inevitable or necessary, or that the regulatory homework is too demanding.
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Flame Retardant Being Added to TRI List Among Four New Proposals in EPA's Agenda
May 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies that make or use polystyrene foam are among the types of facilities that could be required to report their air, water and soil releases of the flame retardant hexabromocyclododecane, under a proposed Toxics Release Inventory rule the Environmental Protection Agency is developing, the agency said in its recently released regulatory agenda.
The rulemaking is one of four proposed rules the agency is developing and announced for the first time in the spring 2015 regulatory agenda, published May 21. The agenda lists federal agencies' regulatory actions that are in development and recently completed.
The other three newly published proposed rules would involve restrictions of three chemicals: trichloroethylene (TCE), n-methylpyrrolidone (NMP) and methylene chloride.
The uses of TCE, NMP and methylene chloride that the EPA would seek to restrict through its proposed rules would address health concerns the agency identified in risk assessments its Office of Pollution Prevention and Toxics published in 2014 and March 2015.
The agency mentioned its intent to add hexabromocyclododecane (HBCD) to TRI in an action plan for the chemical that it issued in August 2010 (159 DEN A-11, 8/19/10).
HBCD, a category of 16 possible forms, or isomers, of the chemical, was the third most commonly used brominated flame retardant in 2010, the EPA said.
Primarily Used as Flame Retardant
The chemical's primary use is as a flame retardant in expanded polystyrene foam (EPS) and extruded polystyrene foam (XPS) for thermal insulation boards in the building and construction industry, but it also is used in the backcoating of textiles for upholstered furniture, upholstery seating in transportation vehicles, draperies, wall coverings, mattress ticking and interior textiles such as roller blinds, the agency's action plan said.
HBCD's use in the construction industry and elsewhere also was described by Australia's chemicals agency, the National Industrial Chemicals Notification and Assessment Scheme, in a fact sheet it updated in May 2013. The Australian agency said companies should move away from importing or using HBCD due to concerns about the effects the flame retardant could have on reproduction and on breast-fed babies.
Total U.S. production data for HBCD, which may be reported under two Chemical Abstracts Service numbers depending on which isomers are in the mixture—CAS No. 25637-99-4 or CAS No. 3194-55-6—were withheld from public release in the most recent Chemical Data Reporting rule submissions provided to the agency.
Manufacturers included Albemarle Corp., BASF Corp. and the Dow Chemical Co.
Proposed Rule Expected by End of September
The agency intends to publish its proposed rule by the end of September, the agency's regulatory agenda said. Unless required by legislation or a court, which the HBCD proposed rule is not, such target deadlines often are missed.
Chemicals are added to the TRI list in accordance with Section 313 of the Emergency Planning and Community Right-to-Know Act.
Companies that make, import or process trichloroethylene for certain consumer products would have to notify the EPA 90 days before doing so in new ways under a proposed rule the agency also announced in its spring regulatory agenda.
The proposed Significant New Use Rule will be published by the end of October, the agency said.
Health Risks Identified
Health risks include short-term neurological responses such as light-headedness and headaches and longer-term harm to liver and kidney function, as well as harm to fetal development, according to a TCE fact sheet developed by the agency.
Continued use of TCE for some commercial degreasing applications, as a spotting agent in dry cleaning and in certain consumer products would be restricted or banned under a separate proposed rule the agency also announced in its spring regulatory agenda.
The proposed rule would be the first the agency has pursued in decades using the authority provided under Section 6 of TSCA.
In 1991, the U.S. Court of Appeals for the Fifth Circuit overturned an agency regulation issued in 1989 that would have banned asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)). Since that court decision, the agency has issued only one regulation that relied on Section 6 authority to restrict or ban a chemical, Mark Greenwood, an attorney with Greenwood Environmental Counsel PLLC and formerly a senior attorney in the EPA's Office of General Counsel, previously has told BNA.
The agency announced it was launching these rulemakings in the November 2014 section of its Action Initiation List (20 DEN A-6, 1/30/15)
NMP, Methylene Chloride Proposal
The fourth proposed rule newly included in the EPA's regulatory agenda would restrict certain paint and varnish stripping uses of NMP and methylene chloride.
NMP-containing paint and coating strippers may harm the health of people, particularly unborn babies, the agency said in a final risk assessment issued in March.
Workers exposed to methylene chloride in paint strippers have an increased risk of cancer as well as liver and neurological problems, the EPA said in a final risk assessment issued August 2014. Consumers also may experience neurological symptoms when methylene chloride-based paint strippers are used around their homes, the agency said in that assessment (168 DEN A-8, 8/29/14).
EPA to Form Small-Business Panels
The agency will be forming small-business advocacy review (SBAR) panels to address the TCE, NMP and methylene chloride proposals, Wendy Cleland-Hamnett, director of the EPA Office of Pollution Prevention and Toxics (OPPT), said March 3(61 DEN A-14, 3/31/15).
The first panel will discuss a possible ban or restrictions on TCE's use as a commercial degreaser, as a spotting agent in dry cleaning and as an ingredient in certain consumer products, she said.
The second panel will discuss possible bans or restrictions on the paint and coating stripping uses of NMP and methylene chloride.
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Groups Ask Michigan to Shut Down Enbridge Pipeline, Evaluate Risks to Mackinac Straits
May 28, 2015 | BNA Daily Environment Report
By Nora Macaluso
Environmental groups are asking Michigan leaders to shut down a 62-year-old Enbridge Inc. pipeline running through the Straits of Mackinac until more is known about the dangers posed to the Great Lakes in the event of an oil spill.
“The law imposes on the State of Michigan a general duty to protect the Great Lakes,” For Love of Water Executive Director Liz Kirkwood said at a Mackinac Island, Mich., press conference announcing a study, “FLOW Report on Enbridge Line 5.”
The Great Lakes Submerged Lands Act, she said, gives the state the authority to regulate the pipeline. “We at FLOW insist that the state undertake a careful review, conduct a transparent process and consider as paramount the public's interest in the Great Lakes,” she said at the press conference, held along with representatives from the Sierra Club and the National Wildlife Federation.
To bolster their case, the groups released a report highlighting the pipeline's vulnerability to leaks and a lack of publicly available information about the span, known as Line 5. The line runs from Wisconsin to Ontario, splitting in two for the 4.6-mile stretch that runs under the straits. It has the capacity to transport 540,000 barrels per day of light crude oil, light synthetic crude and natural gas liquids.
Among issues of concern are the zebra mussels that adhere to the lines, putting added weight on them and excreting corrosive substances that could penetrate protective coating, said the report, commissioned by FLOW, a Great Lakes water law and policy center.
The report said there's a lack of publicly available information about the pipeline, and a task force appointed by Gov. Rick Snyder (R) to review its safety doesn't have enough data on which to form an opinion.
Moreover, Enbridge hasn't presented a “credible worst-case scenario” for a spill in the straits, making it impossible for the state to evaluate alternatives, said the report, compiled for FLOW by engineers and scientists, including Gary Street, former director of engineering at Dow Environmental Inc.
External Corrosion Seen as Significant Hazard
“We feel one of the most significant hazards of these pipes is external corrosion,” Street said at a May 27 press conference announcing the study's results. “Engineers and scientists in 1953 could not and did not foresee everything that has happened since then,” such as the advent of zebra mussels, he said.
The mussels “adhere to everything,” and the lines weren't designed to accommodate their weight, just as the “coal tar” protective coating wasn't designed to withstand zebra mussel excrement, he said. There are also issues with leak detection and how a wintertime leak would be repaired, Street said.
“All of us recognize that in the United States we have a deteriorating infrastructure,” Street said. “Pipelines are also in that category. They don't get better with age, and they almost certainly are going to degrade.”
The Great Lakes Petroleum Task Force is in the process of compiling its report, which will include a “massive” amount of information the company received from Enbridge, Michigan Department of Environmental Quality spokesman Brad Wurfel told Bloomberg BNA May 27.
Report Will ‘Clear Up' Lot of Fear
The report, due out at the end of June, will “clear up a lot of this fear,” he said. FLOW sent the report to Snyder and the two heads of the task force, DEQ Director Dan Wyant and Attorney General Bill Schuette (R), on April 30.
Enbridge spokesman Michael Barnes said company officials hadn't yet seen the report. “Once we obtain a copy, we will carefully review it,” Barnes said in a May 27 e-mail to Bloomberg BNA. “Enbridge will continue to work openly with the government of Michigan on the safe and reliable operation of Line 5 and all of our pipelines in Michigan,” Barnes said.
Enbridge earlier in May agreed to pay $75 million to settle claims from the state of Michigan arising from a 2010 oil spill that sent more than 800,000 gallons of oil into tributaries of Lake Michigan (Michigan Dept. of Envtl. Quality v. Enbridge Energy Partners LP, Michigan Dept. of Envtl. Quality v. Enbridge Energy Partners LP, Mich. Cir. Ct., No. 15-1411, consent judgment, 5/12/15) (93 DEN A-9, 5/14/15).
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Federal Government Orders Pipeline Company To Clean California Oil Spill
May 27, 2015 | Reuters
By Steve Gorman and Alex Dobuzinskis
The federal government on Wednesday ordered a company at the center of a Southern California oil spill to continue its efforts to clean up the pipeline breach that dumped crude onto a pristine stretch of shoreline and into the Pacific Ocean.
The order from the U.S. Environmental Protection Agency (EPA) and the Coast Guard also requires Texas-based Plains All American Pipeline to submit a written plan by June 6 that will outline measures for analyzing the spill's effects on the environment.
The May 19 spill dumped as much as 2,400 barrels (101,000 gallons, or 382,000 liters) of crude onto a pristine stretch of the Santa Barbara coastline and into the Pacific, leaving slicks that stretched over 9 miles (14 km) along the coast.
"Our action today is to make sure the oil response work continues until the Santa Barbara County coastline is restored," Jared Blumenfeld, an EPA regional administrator, said in a statement.
About 1,000 workers, including federal and state employees, are taking part in cleanup work. Two state beaches were closed indefinitely, along with fishing in the area.
Coast Guard Captain Jennifer Williams, the federal on-scene coordinator for the response team handling the spill, said in a statement the order defines Plains All American as the "responsible party" and that government agencies would continue to work alongside the company on the cleanup.
A representative for Plains All American could not be reached for comment.
Also on Wednesday, conservation group the Center for Biological Diversity urged California regulators to reject a proposed expansion of the only offshore drilling operation still permitted in state waters along the Santa Barbara coastline, seizing on public outrage over the latest spill.
Privately owned Venoco Inc is seeking permission to drill on 3,400 acres (1,400 hectares) of the sea floor within a state-designated coastal sanctuary adjacent to the company's current offshore lease site. It said the plan would increase petroleum production by 6,400 barrels a day.
Petroleum from Venoco's rig ultimately is added to refinery-bound supplies that get pumped through the failed 28-year-old transmission line owned by Plains All American Pipeline.
"It would be a grave mistake for the state to approve a project that will feed more crude into a pipeline system that just spewed thousands of gallons of oil into the Pacific," said Miyoko Sakashita, the Center for Biological Diversity's oceans program director.
Denver-based Venoco had no immediate comment.
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A Relic of California’s Oil Past Haunts State With Sea Spill
May 27, 2015 | Bloomberg
By Lynn Doan
A pipeline the oil market had all but forgotten resurfaced like a painful memory last week, spilling 500 barrels of heavy oil into the Pacific Ocean.
Line 901. A quarter century ago, it was a pipeline full of promise. Today, it’s full of -- not much, really. Before it leaked on May 19, pouring viscous crude into the waters off California’s coast, the 24-inch line was schlepping 28,800 barrels a day, mostly to a small refinery near Santa Barbara, at less than a fifth of its capacity.
It’s a relic from another time, an era that peaked in the 1990’s when drillers dove into the waters off California’s coast chasing billions of barrels lying beneath the ocean floor. The state was producing so much crude back then that a larger pipeline was built to send California’s offshore oil to Texas. Today, Kinder Morgan Inc. has a plan to revive that link -- to send Texas oil to California’s refiners.
“This line is a remnant, from when huge volumes of California oil were supposed to materialize and never did,” David Hackett, president of energy consultant Stillwater Associates in Irvine, California, said of the Plains All American Pipeline LP system that leaked. “Now the shale revolution’s changed everything. We’re seeing dramatic increases in production elsewhere.”
In 1969, a blowout at a Union Oil platform dumped an estimated 80,000 barrels of crude off the coast of Santa Barbara in what was then the worst spill in U.S. history. Ensuing moratoriums helped cut the state’s offshore oil production to a fourth of its August 1995 peak at 204,000 barrels a day. ‘Finite Resources’
“There are a number of reasons production falls, but there are platforms that have shut since then, and these are finite resources,” Sheri Pemberton, chief of external affairs for the California State Lands Commission, said by phone May 26.
California’s total oil production peaked at 1.11 million barrels a day in February 1986. Environmental battles and the unique challenge of boring through uneven layers of rock have curbed new drilling as flows from legacy fields peter out.
Last week’s spill may be another blow to California oil production, with environmentalists including Food & Water Watch calling on policy makers to phase out drilling in the state altogether. Plains All American spokesman Brad Leone declined to comment, saying the company is focused on its response to the spill. Total Output
The drop in oil production in state waters has slowed in the past few years and actually rose in 2013 by 3,000 barrels a day to about 40,000, state data show. Companies have been using technological improvements such as directional and extended-reach drilling to keep platforms alive, according to the California Energy Commission.
West Texas Intermediate for July delivery added 21 cents to $57.72 a barrel in electronic trading on the New York Mercantile Exchange at 1:34 p.m. Singapore time.
“Bringing additional wells online can and did increase total output from state waters,” Gordon Schremp, a senior fuels specialist at the energy comission, said by e-mail on May 26.
Those wells face stiffer competition than they did 25 years ago. California’s oil refiners have brought in record volumes of cheap oil by rail and barge from shale formations such as North Dakota’s Bakken and Colorado’s Niobrara. In 2012, North Dakota surpassed California and Alaska to become the nation’s second-biggest oil producer. Canadian Oil
Crude from Canada’s oil sands is also showing up at California’s plants, as well as the occasional Texas barrel.
That’s where Kinder Morgan’s Freedom pipeline comes in, the project that would revive the path that once carried California oil to Texas. Kinder hasn’t provided an update to the market on the Freedom project since saying it was gauging interest from potential customers and shippers, company spokesman Richard Wheatley said May 27.
“It’s interesting how these pieces of pipe in the ground get repurposed, isn’t it?” Hackett asked. “If this one’s actually done, it’s going to be just one in a long line of pipes that are being repurposed in ways that nobody could have ever anticipated.”
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May 27, 2015 | Politico
By Darren Samuelsohn
If coal has a future, it lies here, off a state road lined with churches, crawfish billboards and boarded-up houses. One of the poorest places in America, this is also home to one of the most expensive power plants ever built.
The Kemper County Energy Facility is the showcase for the decades-old dream of “clean coal” — the idea that the country’s most important, but dirtiest, power source can be burned with minimal damage to the environment.
What Southern Company and its subsidiary Mississippi Power have constructed here over the past five years can rightly be described as an engineering marvel. Fifteen stories of metal scaffolding surrounds a labyrinth of steel, concrete and more than 170 miles of piping. When the Kemper plant starts to burn coal, there will be nothing else like it in the world: Instead of releasing millions of tons of carbon dioxide into the atmosphere every year, it will capture 65 percent of that greenhouse gas and ship it off to an aging oil field, where it will be pumped underground to help produce valuable crude.
Just one problem: It was supposed to be doing all those things two years ago. The plant was scheduled to start generating power in 2013. But during the permitting and regulatory approval process, opening day got moved to 2014. Blaming bad weather, faulty estimates and contractor delays, company officials again delayed the deadline to May 2015. Now Kemper managers say the plant won’t be online until the first half of next year at the earliest. And as the plant blows through deadlines, the cost has ballooned dramatically: An original price tag of $1.8 billion has swelled to $6.2 billion. Last week, Kemper lost one of its major partners because of the construction delays and higher-than-expected costs projected for producing electricity.
For any other power project, this would be just a local problem ─ a power company’s cost overruns. But Kemper is a showpiece and a symbol. Most Americans haven’t heard the name, but Kemper represents a survival strategy for coal. Every time the Environmental Protection Agency adopts new standards for pollution at power plants, coal becomes more expensive to burn. This summer’s expected clean-power regulations will for the first time impose carbon dioxide limits on both new and existing units. As the regulations tighten, and coal becomes hemmed in by more and more anti-pollution rules, the Kemper plant — the only new facility to break ground since late 2008 — increasingly represents coal’s chance at a future in that new world.
It is also turning into a lesson in just how hard survival is likely to be.
As clean-coal projects go, Kemper — even with its delays and cost overruns — practically counts as a success story. Another high-profile test case for the technology — FutureGen 2.0 in central Illinois — died three months ago after its federal subsidies evaporated. Two more major federally funded demonstration projects in California and Texas are also imperiled.This is not what the future was supposed to look like. “Most people have said burning coal without creating pollution was as likely as the Red Sox winning the World Series,” President George W. Bush said in early 2005 not long after Boston’s baseball team broke an 86-year title drought. “Anything is possible. Clean coal technology advances — will advance, and when it does, our society will be better off.” He wasn’t the only one making big promises: The U.S. has invested billions of dollars over the past three decades promoting clean coal technologies, funding that has gone toward tax credits, grants awarded directly to industry, scientific research, pilot demonstration projects and a major lab outside Birmingham, Alabama, where electric utility companies and engineers can test their ideas on two operational power plants.
For all that money, there's been little payoff yet in real-world electricity production. Many environmentalists have always been skeptical. They see clean coal as an oxymoron, another expensive way to prop up an outdated fossil fuel. But it’s also starting to draw skeptics from coal country.
“If somebody had told me that all these years later and all these dollars later we’ve gotten no further than we’ve gotten I’d have not believed it,” said Sen. Tom Carper, a Delaware Democrat and senior member of the Environment and Public Works Committee who often touts his family roots in the small coal mining town of Beckley, W. Va. “It’s hard to understand. Hard to fathom. A great disappointment.”
Energy Secretary Ernest Moniz, in a November 2013 Facebook post after visiting Kemper with dozens of foreign dignitaries, said plants like it “represent the future of fossil energy.” And with it, presumably, the future of a powerful coal industry, and tens of thousands of jobs. Clean coal was supposed to be one of those challenges America could meet with enough gumption and technical savvy. But with so many obstacles along the way, the power plant emerging in the southern Mississippi pine forest here is turning into a singular test of whether such a thing is even possible at all.
How Kemper even got this far is remarkable.
Once king in the U.S., coal has been on defense pretty much since the original conception of the Mississippi power plant about a decade ago. Demand for the country’s most abundant fossil fuel has dropped dramatically in recent years. In part this is due to the discoveries of vast domestic troves of natural gas, an efficient and lower-emission power source that has become less expensive over the last decade. Another big driver has been environmental rules. Coal’s viability has been chipped away by a stack of hard-fought EPA standards, most recently limits on mercury, a dangerous neurotoxin. Environmentalists have also been waging a sustained legal war with striking success. The result is that companies are wary of making big financial investments, and new coal plants today are a rarity.
Without a major reversal to the EPA policies, coal’s future has come to depend on "clean coal," a shorthand for a suite of technologies that in recent decades has helped dramatically slash sulfur dioxide and nitrogen oxide emissions. The cutting edge of coal technology — and what is emerging as the biggest challenge, with Kemper as a test case — is “carbon capture,” the science of pulling the vast quantities of carbon dioxide out of coal smoke and then storing and shipping it to a permanent reservoir where the greenhouse gas never enters the atmosphere. The technology has been in development for years, but only a tiny handful of companies have both the money and the incentive now to try turning it into reality.
Enter Atlanta-based Southern Company, one of the largest electric utility companies in the country and one of the nation's biggest consumers of coal. As the industry braced for the EPA’s expected tightening of air pollution regulations this summer, Southern Company, which had started to rely more on natural gas, knew it would have to modernize further. It would be an expensive process, but useful: Adding a major clean-burning plant like Kemper would lower the company’s overall carbon footprint and also give it a stable coal-burning anchor that could help brace against any future fluctuations in natural gas prices.
In searching for a spot to build a pilot plant, Southern Company settled on a location in rural Kemper County, about 200 miles inland from the Gulf Coast, a safe distance from the Hurricane Katrina-like storm surges that can cripple the region’s power grid during emergency situations. The plant would be built next to a new surface coal mine to eliminate the cost of transportation for the fuel.
At the time Kemper was set in motion in the mid-2000s, the country was riding a clean coal wave. Out of some 150 new coal plants that industry was proposing for construction, about three dozen considered using some form of carbon capture technology. Bush, meantime, was spending several billion dollars promoting it, too.
Building a new, expensive power plant would be a long gantlet to run, but Southern Company enjoyed some crucial advantages. The governor of Mississippi at the time was Haley Barbour, the former Republican National Committee chairman, who knew the company well: He had worked as a lobbyist for Southern Company before his 2004 inauguration. Barbour took an active interest in getting the Kemper plant up and running, urging state lawmakers to pass a law allowing power companies to raise rates on customers to pay for new plants during construction, rather than wait until the units are actually up and generating electricity. In a May 2010 letter to the Mississippi Public Service Commission, which played a critical role in the state approval process, Barbour also warned of an “awful, outrageous outcome” if the state lost out on $680 million in federal grants and tax breaks available “exclusively for the specific technology” that Kemper would deploy.
Kemper’s political wiring goes even further: A 2010 report by the Mississippi Business Journal found Barbour’s former colleagues at the Washington-based lobbying firm BGR Group claimed credit on their website for helping Southern Company in 2008 secure some of its federal subsidies, namely a $270 million Energy Department grant that originally had been awarded to a different Southern Company-connected clean coal project near Orlando, Florida, that was canceled.
Barbour helped shovel some of the ceremonial dirt at Kemper's December 2010 groundbreaking. “Prayers of thanksgiving are very appropriate here,” he said alongside company brass at the event, according to a Meridian Star report that said the Republican had also touted how the project would mean $2.4 billion in investments for local communities.
Progress since then has been anything but smooth. Southern Company, which in its earliest iteration in 2006 envisioned a $1.8 billion project, (excluding costs for the adjacent mine and carbon dioxide pipeline) has had a litany of missed deadlines and budget overruns. It had to repay more than $130 million in federal tax credits after missing its May 2014 deadline to start producing power — a delay that company officials blamed in a 2013 filing with the Securities and Exchange Commission on "abnormally wet weather and lower-than-planned construction labor productivity." Critical pieces of the plant’s infrastructure have been built, torn up and rebuilt again. For every month of delay, Southern Company has said in its financial disclosures to the SEC that the plant’s price tag goes up between $25 million to $30 million.
Those construction delays and rising costs last week even prompted a group of Mississippi electric power cooperatives to cancel plans to buy a 15 percent share of the Kemper plant, exposing Southern Company and Mississippi Power to more questions about their finances. On Friday, Fitch Ratings warned of “mounting pressure” on Mississippi Power’s financial rating and predicted a one or two notch downgrade because of continued uncertainty over the power plant. For its part, Mississippi Power said it was “disappointed” that South Mississippi Electric Power Association was backing out of the Kemper project and promised it would refund $275 million in deposits, plus interest, while also exploring its future financing options.
On a recent weekday tour of Kemper, accompanied by three corporate public relations officials, the on-site managers downplayed the many delays and cost overruns as a fact of life for any company trying innovative new technology in a pressure-filled regulatory and economic environment.
When it started constructing the plant in 2010, Southern Company had about 20 percent of Kemper's design completed. "We were right on the mark with cost estimates with respect to the design around the major components of the facility: the gasifier, steam generator and combustion turbine," said company spokeswoman Jeannice Hall. "Where we missed it, and where many first-of-a-kind facilities like the Kemper facility miss the mark on estimating, is in the quantities of piping and wiring and the labor associated with these materials." One big fix, for example, required replacing about 1,500 linear feet of pipe because of mistakes in the amount, thickness, quality and chemical reaction in the original materials.
The power plant is now “98 percent or so complete,” the officials said, but still needs about a year of tinkering and testing to ensure it can operate safely, reliably and efficiently.
“You don’t build any plant and you just turn it on and it works,” said Tim Pinkston, a Southern Company veteran who has worked for more than a decade developing the specific brand of carbon-capture technology being deployed at Kemper. “There’s always things you have to adjust on.”
In the long arc of American energy politics, Kemper stands as a testament to the huge gap between promises and what can really be achieved — sort of like pledges for U.S. energy independence, or turning the country's transportation fleet from gas to electricity or hydrogen.
Clean coal has been a remarkably persistent dream, and one with true bipartisan backing. It has an environmentalist sheen that appeals to Democratic leaders, and a pro-coal effect that Republicans can believe in. Ronald Reagan championed his clean coal technology spending when negotiating with Canada on acid rain. By 1995, Bill Clinton declared an Energy Department clean coal program such a success that it wasn’t even needed anymore. Clean coal was a rare point of agreement for Al Gore and George W. Bush, who both made aggressive pitches for the idea in their 2000 campaigns. The first iteration of FutureGen, the now-defunct Illinois project once touted as the world’s first near-zero emissions coal plant, emerged out of Bush’s 2003 State of the Union speech.
Clean coal also triggered a misstep in the Obama campaign — Joe Biden in 2008 exposed Obama to an easy Republican attack line when the vice presidential candidate was caught on camera in Ohio telling a woman, “We’re not supporting clean coal.” But in his first term, Obama got on board and pushed a rich package of clean-coal subsidies and incentives in the 2009 climate-change bill. (The legislation passed the House but ultimately died in the Senate.) Since taking office in 2009, Obama has dedicated $6 billion to efforts to make coal more climate-friendly; his latest budget called for $2 billion in tax credits for companies willing to be early innovators.
The promise embodied by Kemper is still a viable one, at least in theory. Earlier government-backed clean coal programs yielded breakthroughs on scrubbers and other equipment for cleaning up major air pollutants like sulfur dioxide and nitrogen oxide. After lengthy legal battles over what the electric utility industry was required to deploy, many of those technologies are now installed on many power plants across the country. The big difference now is “carbon capture” technology, the one that would make Kemper the kind of coal plant that is expected to survive under the upcoming EPA rules - in its draft form, the Obama-led agency even cited the Mississippi power plant as an example for the rest of the industry to follow. While the different technologies needed to capture, sequester and store carbon dioxide emissions underground have been independently demonstrated, wrapping everything together on a full-scale, commercially operating power plant remains a complicated challenge.
If and when it becomes operational, Kemper will need to deal with a “parasitic effect” where about a quarter of the overall electricity generated by the power plant is needed just to run the equipment that will capture the carbon emissions. Kemper has also been a drag on Southern Company’s bottom line. It’s paying for a large portion of the cost overruns; something not lost on UBS financial analysts, who in May 2014 suggested selling the company’s stock because of difficulties in getting the power plant operational.
It has also had to wage fights in court. The Sierra Club won a unanimous 2012 Mississippi Supreme Court ruling that rejected the plant’s state construction permit. A two-year appeal battle followed the state’s second authorization effort, and the dispute between the environmental group and the power company ended last August in a settlement that forced Southern Company in part to phase out coal at two other major power plants in south Mississippi and Greene County, Alabama.
More recently, activist and businessman Tommy Blanton won his own narrow 5-4 Mississippi Supreme Court decision in February ordering Mississippi Power to refund more than $257 million in rate increases collected to help fund the power plant’s construction. The company is seeking a rehearing while also proposing a range of possible rate increases on its customers ─ including one option that would go up as much as 40 percent. Blanton, meantime, insisted that building a costly prototype power plant at Kemper still doesn’t make sense.
“These are some of the poorest people in our whole country being asked to pay for an experimental science project,” he said. “Ethically, it doesn’t pass muster.”
As Kemper has struggled, many of the other clean coal projects have fared even worse. American Electric Power secured regulatory approval for a clean-coal project in Ohio in 2007, but construction never started; the company struggled to come up with an estimated $2 billion for the 600-megawatt plant. And Excelsior Energy’s proposed Mesaba Energy Project in Minnesota, slated to open in 2011 but which saw its own projected costs balloon to $2 billion, didn't get to a groundbreaking either; its executives blamed diminished electricity demand from the recession and heavy competition from natural gas.
So far, one major power plant has managed to make carbon capture technologies work. In Canada, SaskPower launched the first coal plant in the world to sequester its carbon dioxide emissions from an existing facility. The $1.2 billion retrofit now captures 90 percent of its emissions and sends them via an eight-inch pipe to an oil field for energy production about 45 miles away.
“It’s working great,” said Mike Monea, president of the company’s carbon capture and storage initiatives at the Boundary Dam Power Station, which is about 10 miles north of the U.S. border near Estevan, Saskatchewan. But the plant uses a different technology from Kemper’s and is also nowhere close to Kemper’s size ─110 megawatts, compared with about 580 megawatts. It also required $200 million (U.S.) in Canadian government subsidies.
The once impressive pipeline of major American clean-coal projects is now down to Kemper and three other schemes at earlier stages of development, two in Texas and one in California. Where clean coal proponents are really placing their hopes is overseas. Worldwide, a few nations are trying their own variations of Kemper ─ and this may turn out to be more important in the long run, given the growing power appetites of China and India, both prodigious users of coal and the planet's current No. 1 and No. 4 greenhouse gas emitters, respectively. (The U.S. is second, followed by the 28-nation European Union bloc.)
China is planning 11 large-scale clean coal projects, up from six in 2011, according to data compiled by the Australian-based Global CCS Institute. In the United Kingdom, two carbon capture projects at power plants are the finalists competing for £1 billion in government support – prizes are expected to be announced by next spring. The United Arab Emirates is home to the first large-scale carbon capture and sequestration project for a natural gas-fueled iron and steel plant, with a target launch date next year.
This is how Kemper’s owners hope their project can help move the needle globally, as well as in Mississippi. Southern Company CEO Tom Fanning touted Kemper in a recent Atlantic Council speech as a global model for many new power plants because of its reliance on lignite, a soft form of coal that makes up about half of the world’s reserves. The carbon capture process will bring the company financial benefits by selling off its ammonia and sulfuric acid byproducts and by using its CO2 emissions to generate an estimated 2 million barrels of oil a year. “Not bad,” Fanning said. “That could make a lot of sense in a developing economy.”
The Energy Department, too, is taking a long view. DOE had stood by Kemper during its delays and budget overruns. In an interview, Christopher Smith, the assistant DOE secretary of fossil energy, said it is “unquestionable” that the Mississippi power plant will soon be up and running.
“When you’re doing something for the first time, it’s a big undertaking,” Smith said. “In order to get these technologies off the ground, you’ve got to find companies willing to go first. Southern has been a really good ambitious and forward-leaning partner in that regard.”
Smith said he isn’t concerned that Kemper was one of only two remaining projects of its kind that have broken ground in the U.S. “We’ve got our hands full with what we’ve got,” he said, noting that the federal effort to get the technology into the field can take time and won’t necessarily reap immediate dividends. “Technologies do take a while to be developed,” he said.
Not everyone, however, shares his optimism. Bud Albright, the former George W. Bush Energy Department point man on the now-mothballed clean-coal project called FutureGen, recalled catching “absolute holy hell” when he had to brief the Illinois congressional delegation on why a Republican administration was backing out of its own high-profile clean coal project. Ultimately, he said DOE realized by late 2007 that the math didn’t add up, and taxpayers could have been left on the hook.
Albright said he wasn’t ready to make a judgment when asked whether the billions that the federal government and industry had spent over three-plus decades on clean coal technology had been wasted. But he also noted that there’s been no full commercial success on carbon capture efforts at a power plant that didn’t also need some kind of hefty government subsidy. “I’m not negative on [carbon capture],” he said. “I just haven’t seen it work. Everyone talks about it being ready in two years, in five years. It’s always tomorrow. It’s never today.”
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Those Who Forget History in Texas are Doomed to Repeat It
May 27, 2015 | Environmental Defense Fund
By Elena Craft
Recently, the Texas Attorney General Ken Paxton’s office announced plans to challenge the U.S. Environmental Protection Agency’s (EPA) proposed Clean Power Plan, which would place limits on carbon emissions from existing power plants for the first time in the country. A few days afterward, Texas Governor and former State Attorney General Greg Abbott pledged support for Kentucky Senator Mitch McConnell's Just Say No campaign, an effort to encourage states not to comply with the upcoming federal regulations.
Apparently Texas has a short memory. Just a couple of years ago, Texas lost a series of challenges to EPA regarding greenhouse gas (GHG) permitting. Texas refused to issue GHG permits to new and modified large industrial sources of greenhouse gas emissions, resulting in the establishment of a dual permitting system. This meant industrial facilities, like power plants and refineries, needed to apply to the Texas Commission on Environmental Quality (TCEQ) for some air permits and separately to EPA for the portion of their permit addressing greenhouse gases.
Ultimately, however, Texas industry urged the state to issue the GHG portion of air quality permits as well. And in an about face, after spending millions of taxpayer dollars fighting common sense regulations, Texas regained the ability to issue the state’s GHG permits.
And then of course there's the state’s most recent loss, an appeal to the U.S. Court of Appeals for the D.C. Circuit to rehear a case that continued to challenge these measures to reduce climate pollution.So why should Texas support the Clean Power Plan? Here are 10 great reasons:There are currently no national limits on carbon pollution from power plants. Texas is home to some of the highest polluting power plants in the country.Power plants account for almost 40 percent of U.S. carbon dioxide emissions from energy. Texas’s Martin Lake plant is one of the country’s 10 highest polluting plants.In 2011, carbon pollution from the U.S. power sector exceeded total pollution levels from all nations except the U.S. and China.The worst-offending power plant in the United States produced more than 21 million metric tons of carbon dioxide in 2011 – more than the total energy-related emissions of eight states and 120 countries. The Clean Power Plan will reduce this harmful pollution, providing states with a great deal of flexibility to craft plans that leverage low- and zero-carbon emitting sources like renewable generation and energy efficiency.Between 2011 and 2013, wind generation in the United States increased by 40 percent. Texas ranks number one in the nation for wind energy capacity.Between 2010 and 2011, green jobs grew four times as fast as other jobs. Texas ranks second nationally for employment in the renewable energy industry.Every dollar invested into clean energy creates approximately three times as many jobs as the same dollar invested into fossil fuels.In 2012, rooftop solar panels cost approximately one percent of what they did 35 years earlier.In 2010, Americans using ENERGY STAR products and retrofits saved the energy equivalent of approximately 45 power plants — preventing 195 million metric tons of carbon dioxide emissions, and saving more than $20 billion in their energy bills.More than 64 percent of Americans support establishing carbon dioxide emission limits on existing power plants.
Wake up, Texas leadership. Wouldn’t it be better to leverage our innovation and renewable riches toward a clean energy future, instead of remaining in the dark ages?
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Petition Seeks Reconsideration of Decision To Remand Greenhouse Gas Permitting Rule
May 28, 2015 | BNA Daily Environment Report
By Andrew Childers
A federal appellate court's decision to remand and not vacate the Environmental Protection Agency's greenhouse gas permitting requirements is inconsistent with U.S. Supreme Court guidance and should be reconsidered, groups advocating limited government and free enterprise said in a petition (Coal. for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, petition for rehearing, 5/26/15).
The Supreme Court found that the EPA's greenhouse gas permitting rule for stationary industrial sources was“ substantively defective,” and it should be vacated until it's corrected by the agency, the organizations told the U.S. Court of Appeals for the District of Columbia Circuit in a May 26 petition for rehearing.
Groups seeking rehearing include the Coalition for Responsible Regulation, the Southeastern Legal Foundation and the Competitive Enterprise Institute. They are asking that the lawsuit either be reheard by the same panel that had previously decided the case or by the full D.C. Circuit.
They argued that the EPA must first issue a permitting rule before it can continue with its prevention of significant deterioration program for greenhouse gases. Prevention of significant deterioration requires new and modified industrial sources to install best available control technology (BACT) to control their emissions.
Among the issues yet to be addressed by the EPA is how to set a de minimis threshold for greenhouse gas emissions below which industrial sources wouldn't need to obtain permits.
EPA Should Reopen Rulemaking Process
“EPA's only option to correct the deficiencies in the GHG BACT rules is to reopen the rulemaking process and properly notice the revised rules for public comment,” the industry groups said.
The Supreme Court in 2014 held that only those industrial sources that already trigger prevention of significant deterioration permitting requirements for emissions of conventional pollutants such as nitrogen oxides and particulate matter also would be required to permit their greenhouse gas emissions (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (U.S. 2014)).
The case was returned to the D.C. Circuit, and in April, the court vacated provisions of the EPA's tailoring rule to the extent they require industrial sources to obtain prevention of significant deterioration or Title V permits solely due to their greenhouse gas emissions and remanded the remainder of the rule to the agency to determine if further revisions were necessary, including addressing the de minimis issue (71 DEN A-1, 4/14/15).
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Industry Asks D.C. Circuit To Rehear GHG Permit Suit Over De Minimis Issue
May 27, 2015 | InsideEPA
By Dawn Reeves
More than a dozen industry groups are asking the U.S. Court of Appeals for the District of Columbia Circuit to reconsider an April decision that let EPA determine how to interpret a Supreme Court ruling limiting the scope of its greenhouse gas (GHG) permit program, rather than blocking the agency from permitting GHGs until it sets a de minimis threshold.
The groups argue in the long-running suit that the D.C. Circuit panel's per curiam April 10 decision is in conflict with the high court's ruling in Utility Air Regulatory Group (UARG) v. EPA, suggesting that the parties could again ask the Supreme Court to intervene if the D.C. Circuit rejects their request -- even though EPA has said it is developing the regulatory threshold.
The May 26 petition to the D.C. Circuit, where the case is known as Coalition for Responsible Regulation v. EPA, asks the full court to reconsider the panel's amended judgment that vacated EPA's GHG tailoring rules “to the extent they require a stationary source to obtain a [prevention of significant deterioration (PSD)] permit if [GHGs] are the only pollutant” regulated. The ruling also applied to Title V stationary source operating permits.
And the ruling ordered EPA to rescind or revise its regulations “to reflect the relief granted” and to “consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA, and if so, undertake to make such revisions.”
In UARG, the high court effectively vacated step 2 of EPA's tailoring rule, which had allowed the agency to require permits for facilities based solely on their GHG emissions. Instead, the court said that EPA could only require best available control technology (BACT) reviews for facilities that are already subject to permit requirements, because their emissions of conventional pollutants exceed statutory PSD thresholds.
The court said that EPA should craft a de minimis threshold but provided no direction for how the agency should proceed, and returned the litigation to the appellate court to implement consistent with its ruling.
The D.C. Circuit's per curiam order formally scaled back EPA's GHG tailoring rule, eliminating provisions that had allowed regulators to require permits for facilities based solely on their GHG emissions and rejecting without comment industry arguments that EPA is barred from permitting GHGs under PSD until the agency finalizes a de minimis rule.
Shortly before the appellate court order, EPA announced that it would issue a rule setting a de minimis level -- or “significant emission rate” -- of GHGs that would trigger PSD and Title V requirements,in line with UARG. EPA air official Anna Marie Wood told the agency's Clean Air Act Advisory Committee April 22 that the agency has begun work on a proposal, but did not say whether it intended to retain the temporary 75,000-ton-per-year threshold that it first set in the tailoring rule.
EPA also issued a direct final rule April 30 to establish a process to rescind air permits issued solely based on a facility's GHG emissions that is due to take effect at the end of June if the agency does not receive adverse comments on its proposal by May 30.
Demand Reductions
But the new industry petition argues the D.C. Circuit's judgment does not go far enough to comply with the high court in UARG because it “does not declare the” GHG BACT rules to be “invalid, which is inconsistent with the holding in UARG” where the high court “held the actual GHG BACT Rules, as currently drafted, to be substantively defective. Chief among the Court's reasons is that the existing GHG BACT Rules do not contain a de minimis level.”
The high court said that de minimis “is part of the established background of legal principles against which all enactments are adopted” and that “EPA may require an 'anyway' source to comply with greenhouse-gas BACT only if the source emits more than a de minimus amount of greenhouse gases.” The Court then concluded that the 75,000-ton threshold in the GHG BACT rules is not a de minimis level, the filing argues.
The recent industry petition to the D.C. Circuit also argues that EPA's focus on energy efficiency in the GHG BACT reviews it has conducted to date “is inconsistent with EPA's long-standing guidance that it only has authority to regulate a facility's own pollutants and may not require 'reductions in a facility's demand for energy from the electric grid.'”
And it says the high court “left no doubt of its holding that EPA must establish a properly justified de minimis GHG level before requiring GHG BACT for anyway sources,” noting the court required EPA to “justify its selection on proper grounds. . . . By its citation, the Court identified how the Circuit should proceed; specifically, vacatur with guidance by the Circuit to EPA on establishing valid GHG BACT rules.”
Many of the major industry groups that originally challenged the GHG rules did not sign onto the rehearing petition, which is led by Langboard Inc. and includes a number of Langdale businesses in Valdosta, GA; Alpha Natural Resources; Coalition for Responsible Regulation; Great Northern Project Development LP; Industrial Minerals Association North America; National Cattlemen's Beef Association; Rosebud Mining Company; former Rep. Michele Bachmann (R-MN); Rep. Kevin Brady (R-TX); Southeast Trailer Mart Inc.; the Southeastern Legal Foundation; Competitive Enterprise Institute; Freedom Works; Landmark Legal Foundation and Science & Environmental Policy Project.
Missing from the petition are major national industry trade associations including the National Mining Association, American Petroleum Institute, Brick Industry Association, Corn Refiners Association, National Association of Home Builders, National Association of Manufacturers, National Oilseed Processors Association; National Petrochemical & Refiners Association, Western States Petroleum Association, UARG, U.S. Chamber of Commerce, American Iron & Steel Institute and the Portland Cement Association. Also missing are state plaintiffs that had included Alabama and Texas.
Rehearing Petition
An attorney for the petitioners says “not all parties previously associated with challenging one or more aspects of EPA's rules governing GHG-based permitting have joined this petition for rehearing,” which had a May 26 deadline.
The attorney says it is possible that the groups could ask the Supreme Court to step in again if the D.C. Circuit rejects the request “but you should not take that answer as any indication one way or other other as to whether that will happen.”
The petition further argues that the high court's holdings “are not academic; they deliberately and dramatically weaken EPA's GHG-related PSD rules.” Because the court in UARG “repudiated the triggering threshold of the GHG BACT Rules, leaving a provision that cannot be rationally applied without supplying the missing item. The Amended Judgment misses this fatal legal ramification.” It adds that EPA's only option “is to reopen the rulemaking process and properly notice the revised rules for public comment,” calling the case “plainly one of exceptional importance. A decision in either direction will have massive real-world consequences. . . . The Circuit should do more than wave goodbye to EPA as the agency embarks on some voyage of discovery with no particular destination in mind. . . . The Circuit must enforce the Supreme Court's decision.”
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EPA Air Toxics 'Completion' Finding Defends Underlying Emissions Rules
May 27, 2015 | InsideEPA
By Stuart Parker
EPA has finalized its finding that it has completed a Clean Air Act mandate to regulate air toxics from sources that represent 90 percent of emissions of seven hazardous air pollutants (HAPs), and is rejecting what it calls advocates' “collateral attack” on years-old rules underlying the conclusion that it has met the air law requirement.
In a final rule signed by EPA Administrator Gina McCarthy May 22 but not yet published in the Federal Register, EPA affirms its earlier proposed version of the finding from Dec. 16. The agency says its regulations to date have satisfied Clean Air Act section 112(c)(6) which says EPA by Nov. 15, 1995 must list industrial sources for regulation accounting for 90 percent of seven identified “persistent” and “bioaccumulative” HAPs.
The HAPs are: alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8- tetrachlorodibenzo-p-dioxin, listed in section 112(c)(6) of the air law.
Echoing the proposal, EPA in the final rule finds that existing regulations -- some decades old -- provide the 90 percent coverage. The agency relies on “surrogate” pollutants other than the listed HAPs to provide the necessary emissions reductions, a practice it says is justified in the absence of a Congressional prohibition on doing so.
Sierra Club in its comments on EPA's proposed rule said, however, that EPA cannot meet the mandate by relying on inherently flawed rules that do not provide adequate protection for public health.
The group has been pushing the agency for years to issue a judicially reviewable final rule stating that it has met its obligation under section 112(c)(6), pursuing protracted litigation that ultimately resulted in the U.S. District Court for the District of Columbia setting a May 25 deadline for issuance of a final declaration from the agency on whether or not it believed its work to date had satisfied the air toxics requirement.
Previously, EPA had simply declared that the mandate was met, without taking public comment on the finding, but advocates challenged this finding and the D.C. Circuit found it insufficient.
Sierra Club had argued in its comments on the proposed version of the air toxics finding that EPA must promulgate specific air toxics regulations to target the seven HAPs at issue, and that EPA cannot rely on surrogates without carefully identifying the correlation between the surrogate and the HAP.
Final Regulation
However, EPA in the final rule responds to the group's comments, saying that Sierra Club “misinterprets the [Clean Air Act], mischaracterizes the EPA’s proposed determination, and provides comments challenging the substance of a number of previously issued EPA rules.”
The agency adds, “the comments challenging the legitimacy of the standards on which EPA relies to demonstrate it has satisfied its obligations . . . are far outside the scope of the proposed [air law] section 112(c)(6) determination.”
All the underlying rules Sierra Club criticizes were issued by notice-and-comment rulemaking, and any challenges to those rules should have been filed within 60 days of their issuance, EPA says. The agency says that efforts to reopen those rules now amount to unwarranted “collateral attacks.”
The completion finding rule “does not provide commenters another opportunity to belatedly challenge these prior EPA actions, nor does it mandate that the EPA re-promulgate or otherwise re-open for purposes of section 112(c)(6) standards that were previously promulgated under section 112(d)(2),” EPA says. The agency says, “in the proposed and in this final determination, EPA has not re-opened those previously promulgated standards.”
EPA defends its discretion to use surrogates, such as “total hazardous organic pollutants,” so long as this is “reasonable,” in accordance with the case law of the U.S. Court of Appeals for the District of Columbia Circuit.
Nor does it matter that EPA never specified when promulgating the underlying air toxics rules that the rules would be used to help meet the HAP listing obligation, EPA says. Fundamentally, nothing in the Clean Air Act actually requires EPA to publish a formal notice or promulgate a rule demonstrating that it has met its listing obligation, the agency argues, calling the completion finding a “non-statutorily required determination.”
Environmentalists' Concerns
An environmental legal source says, however, that EPA appears to be reviving arguments previously rejected by the D.C. Circuit during the course of litigation over EPA's completion finding.
“EPA itself asked that it be allowed to issue a judicially reviewable final notice when it completed its obligation under the statute. Our comments are not collaterally attacking old rules but simply pointing out that EPA's proposed notice was unsupported by the record or the law,” the source says.
“What is important here as a practical matter is that EPA is leaving communities across the country without protection against some of the most dangerous pollutants in existence. It is unfortunate that the agency is trying to paper over this problem instead of fixing it,” the source says. Publication of the rule in the Federal Register will trigger a new 60-day window for opponents of the finding to file suit in the D.C. Circuit. The source declined to say whether environmentalists plan to file suit.
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Chevron, ExxonMobil Investors Show Limited Support for Climate Proposals
May 28, 2015 | BNA Daily Environment Report
By Andrea Vittorio
The chief executive officers of Chevron Corp. and ExxonMobil Corp. faced questions from some of their shareholders on how they are handling climate change and other environmental risks, but investors overall showed little interest at annual meetings May 27.
Using shareholder resolutions, investors had asked both companies to set greenhouse gas goals, put environmental experts on their boards and report on how they are minimizing hydraulic fracturing impacts.
The resolutions received support from roughly 9 percent to 27 percent of voting shareholders at the two companies, according to preliminary counts.
Meanwhile, at Chevron, just 4 percent of voting shareholders supported another first-of-its-kind resolution asking the company to return more money to shareholders, rather than spending it on what investors call high-cost, high-carbon oil projects.
The low votes at Chevron and ExxonMobil weren't exactly surprising. Environmental and social proposals typically garner support from about 20 percent of shareholders on average (133 DEN B-1, 7/11/14).
Climate Change Strategy
But they do stand in contrast to record-high votes at BP Plc and Royal Dutch Shell Plc, where more than 98 percent of shareholders supported proposals calling for reporting on how they are preparing for the risks of climate change.
BP and Shell recently banded together with Statoil ASA and other European oil companies to form a joint strategy on climate change as world leaders work toward a year-end deal to fight it (99 DEN A-6, 5/22/15).
Chevron Chairman and Chief Executive Officer John Watson said at his company's annual meeting that he was aware of the coalition of Europe's biggest oil companies but had no plans to join it.
ExxonMobil Chairman and CEO Rex Tillerson likewise said he won't join the group because the company has already made its views clear, Bloomberg News reported.
Governments to Impose ‘Rising Costs' on Carbon
During the meeting, Tillerson said he expects government policies to “impose rising costs on carbon emissions,” and he reiterated his support for a carbon tax. But he also cast doubt on the reliability of current climate modeling to predict what future impacts will look like.
Investors are worried that oil, gas and coal assets risk could become economically stranded under future policies to limit global warming.
“I think with both Chevron and ExxonMobil, there seems to be such a push within those two companies especially to really minimize the importance and the impact of carbon asset risk that I just don't think that shareholders have been as broadly exposed to the concept of carbon asset risk as perhaps some of the shareholders in BP, Shell or Statoil have been,” Shanna Cleveland, who leads an effort at sustainability advocacy group Ceres to help investors engage with fossil fuel companies on climate change, told Bloomberg BNA.
So, she said, more education is necessary around the need for these companies to manage carbon risk.
ExxonMobil put out a report a year ago, in response to investor requests, saying it is confident none of its oil and natural gas reserves would become stranded and lose their value as a result of carbon restrictions because demand will continue to grow worldwide.
Support for Proxy Access
The highest votes among climate-related resolutions went to a request for proxy access at ExxonMobil and Chevron. Proxy access would allow shareholders to nominate their own candidates to run against a company's chosen slate of nominees in board of director elections.
Some consider it a fundamental shareholder right, but its backers say proxy access is especially important for companies that aren't doing enough on climate change. With proxy access, investors could nominate directors with more climate expertise.
At Chevron, the resolution passed with support from 55 percent of voting shareholders.
“The board will consider the final voting results carefully, including the vote on proxy access and the thoughtful stockholder discussions on that issue,” Chevron's Watson said in a statement afterwards.
The resolution got just under 50 percent support from voting shareholders at ExxonMobil.
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ExxonMobil Shareholders Reject Resolutions on Climate, Fracking
May 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Shareholders of Exxon Mobil Corp. overwhelmingly rejected resolutions Wednesday on the company’s climate change impact and the effects of hydraulic fracturing.
The resolutions by activist shareholders would have set company goals for greenhouse gas reduction, appointed a climate expert to the board and mandated a report on the impact of Exxon’s fracking activities, the Associated Press reported.Michael Crosby, who sponsored the resolution for a climate expert on behalf of a group of Milwaukee Catholic priests, said the oil and natural gas giant needs to better embrace renewable energy and to fight climate change.
“This company has to be making plans for the future,” he said, according to AP. “Let’s get an expert on the board to deal with a critical question.”
Only 21 percent of shareholders voted for the expert appointment.
The greenhouse gas goals got 9.6 percent, and the fracking report got 24.9 percent, AP said.
Rex Tillerson, Exxon’s chief, said the models on climate change are not definitive, and that it would be very costly to reduce greenhouse gases.
“Mankind has this enormous capacity to deal with adversity,” Tillerson said. “I know that is an unsatisfactory answer to a lot of people.”
Asked specifically why Exxon would not increase its investments in renewable energy, Tillerson said, “we choose not to lose money on purpose,” eliciting applause from the shareholders.
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What to Watch After Congressional Recess: June Shapes Up as Key for Appropriations
May 28, 2015 | BNA Daily Environment Report
By Erik Wasson
Look for June to be a pivotal month on Capitol Hill for the fiscal year 2016 appropriations process.
In the House, Speaker John Boehner (R-Ohio) and his lieutenants will see if they have the votes for transportation and health-care spending cuts opposed by Democrats.
Senate Majority Leader Mitch McConnell (R-Ky.) in the coming weeks will test his pledge to return the spending process to regular order. He wants to try to use appropriations to force President Barack Obama to swallow policy riders that would limit environmental regulations.
Republicans are adhering to domestic spending caps contained in the 2011 Budget Control Act, PL 112-25, prompting Obama to threaten to veto all the appropriations bills.
The appropriations process could break down in each chamber, giving momentum to those advocating a “Ryan-Murray 2.0” budget deal to lift the $1.017 trillion caps level for 2016.
In 2013, the then-chairmen of the Budget committees, Sen. Patty Murray (D-Wash.) and Rep. Paul Ryan (R-Wis.), reached a deal that lifted the spending caps for domestic and defense programs for two years. Now the caps are back in force.
A new budget deal could raise the caps by as much as $92 billion.
House Outlook
The House is set next week to consider the Commerce-Justice-Science and the Transportation-HUD (THUD) spending bills, according to a Republican aide.
The Appropriations Committee plans to mark up the $579 billion Defense appropriations bill, which would hand major victories to aircraft companies.
Watch for most of the drama to be on the THUD bill. It technically would increase spending to $55.7 billion in fiscal year 2016 from $53.8 billion this fiscal year. A drop in receipts, however, including $1.1 billion less from the Federal Housing Administration, means the bill is only a $25 million net increase over this year's level.
The Obama administration says dilapidated infrastructure means transportation projects need $6.8 billion more and lack of affordable housing justifies $3 billion more for HUD.
In 2013, House Republican leaders had to pull a THUD spending bill from the floor when they couldn't get the votes for it because of proposed spending cuts.
Even if the House passes the THUD bill, the chamber faces another challenge with the $153.2 billion Labor-HHS-Education bill.
The House bill calls for $3.6 billion in cuts to programs covered by the measure. Appropriations Labor-HHS-Education Subcommittee Chairman Tom Cole (R-Okla.) said in an interview that he thinks he has the votes to get a bill out of committee in June. That could set up a floor vote soon thereafter.
The $51.4 billion C-J-S bill was approved by committee on a voice vote and is considered a less problematic bill than the others. Most agencies are spared cuts in the measure, which totals $1.3 billion more in funding than the current year.
Don't expect action soon on the 2016 Homeland Security bill. Homeland Security Subcommittee Chairman John Carter (R-Texas) said in an interview the bill will be one of the last to be considered. A battle over Obama's immigration executive actions stalled the 2015 Homeland Security bill until March.
Senate Outlook
The Appropriations Committee's ranking Democrat, Barbara Mikulski (Md.), said during the week of May 18 that Democrats will not vote to limit debate on motions to proceed to spending bills that adhere to the spending caps in the 2011 law.
In light of that filibuster threat and other legislative demands, plans to quickly bring to the floor two committee-approved bills, the bipartisan Military Construction-Veterans Affairs measure and one funding Energy and Water Development, are being pushed back.
Upon its return next week, the Senate first must resolve how to extend and revise domestic surveillance sections of the Patriot Act, which expire at the end of May.
The chamber also plans to take up the $612 billion defense reauthorization measure, S. 1376, a Republican leadership aide said in an interview.
The Appropriations Committee in mid-May approved the $35.4 billion Energy and Water Development spending bill on 26–4 vote. Democrats said they are supporting committee work to advance specific provisions, ahead of a planned blockade on the floor.
The Energy and Water Development measure includes language pertaining to McConnell's coal-producing home state of Kentucky, A rider inserted into the bill would bar the Army Corps of Engineers from completing tighter regulations on mountaintop removal mining. The bill report also instructs the Energy Department not to use the “social cost” of carbon emissions in any regulations.
The MilCon-VA bill, a measure that often enjoys unanimous support, was approved on a 21–9 vote in committee. The bill contains a provision allowing VA doctors to counsel patients on the potential benefits of marijuana.
An early indication of whether the Mikulski threat on spending bills will hold could come during votes on the Defense authorization bill. The Armed Service Committee's ranking Democrat, Jack Reed (R.I.), voted against the measure in committee to protest the use of war funding to skirt the defense spending caps in order to press for a new budget deal. The legislation would authorize use of $38 billion in emergency war funds for regular defense-needs accounts. Only three fellow Democrats followed him as the bill was approved on a 22–4 vote.
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Ruling Ups the Ante in Long-Delayed EPA Superfund Financial Assurance Rules
May 28, 2015 | BNA Daily Environment Report
By Steven M. Sellers
A D.C. Circuit court order represents a “last chance” for the Environmental Protection Agency to produce the Superfund financial assurance regulations Congress ordered 30 years ago, a lawyer for environmental groups told Bloomberg BNA May 27 (In re Idaho Conservation League, D.C. Cir., No. 14-1149, 5/19/15).
But the court deferred a ruling on whether the six environmental groups that brought the action to compel the agency to act have standing, leading an industry representative to question whether the court should reach the merits of the case.
The three-page, unsigned order came just one week after the court heard oral argument May 12 in the mandamus action over EPA rules for assuring that companies in the hard rock mining industry have the financial means to clean up the hazardous waste they create (93 DEN A-13, 5/14/15).
“There is a limit to how long a court will entertain an agency's excuses for its inaction in the face of a congressional command to act,” the U.S. Court of Appeals for the District of Columbia said in the May 19 ruling.
“The order makes clear that the Court finds EPA's decades of delay unacceptable,” Amanda Gooden, of Earthjustice in Seattle, told Bloomberg BNA May 27 in an e-mail.
Gooden, who argued the case on behalf of the six environmental groups—the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch and Communities for a Better Environment—said the ruling provides a window of opportunity for the agency.
“EPA has one last chance to offer a concrete and timely schedule to finalize these badly-needed rules,” Gooden said, “and we hope that EPA takes this opportunity to get rules for these major polluting industries back on track.”
The court ordered the agency to update and expedite its schedule for financial assurance rules ordered by Congress in 1980 when it enacted the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9608(b)).
CERCLA Section 108(b) gives EPA the authority to require that operators of certain facilities maintain financial responsibility consistent with the degree and duration of hazardous substance releases.
In 2009, the agency identified the hard rock mining industry as its priority for the development of such requirements.
The court directed the EPA to update its progress in proposed regulations for mining and other industries, and to specify the agency time line for decisions on any proposed regulations.
EPA Report Ordered Disclosed
The court stopped short of granting the writ of mandamus sought by the groups, but it did order the EPA to provide the court with a copy of a proposed “framework” for hard rock mining financial assurance rules mentioned at oral argument by counsel for the EPA.
The court also ordered the agency to report on the dates for publication of proposed and final regulations not only for the mining industry, but also for the manufacture of chemicals, petroleum, coal and electric power generation and transmission.
Standing Questioned Too
The court declined to decide whether the petitioners have standing to bring the mandamus action, and ordered more briefing on the issue.
The environmental groups were asked to supplement their declarations “with particular reference to the imminence of harm to their members due to the absence of these financial regulations,” the risks specific companies pose, and the way the writ of mandamus will redress the alleged harms.
Tawny Bridgeford, a spokeswoman for the National Mining Association, which moved to intervene in the appeal, told Bloomberg BNA in a May 27 e-mail the proposed regulations aren't necessary and aren't properly raised by the groups.
“The National Mining Association's opinion on the rulemaking from the beginning is that EPA is not required to promulgate CERCLA financial assurance regulations for the hard rock mining industry, has clear discretion as to whether to pursue such a rulemaking, and should not regulate the mining industry given the robust state and federal financial assurance regulations that currently apply to the hard rock mining sector and the existing federal and state environmental programs that minimize risks at mining facilities,” Bridgeford said.
“NMA also believes that, given these state and federal environmental programs and financial assurance requirements, petitioners lack standing to bring this case because any alleged harms they claim from legacy, planned or existing mining facilities are not caused by the lack of [CERCLA §] 108(b) financial assurance requirements and would not be redressed by the promulgation of such requirements,” Bridgeford said.
The submissions of both parties are due in court on June 9.
The Department of Justice declined May 27 to comment on the ruling.
Judges Karen LeCraft Henderson, Judith W. Rogers and Patricia A. Millett considered the case.
Earthjustice represented the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch and Communities for a Better Environment.
The Department of Justice represented the U.S. Environmental Protection Agency.
Goodwin Proctor represented the National Mining Association, a movant-intervenor in the case.
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U.S. Climate Change Targets Achievable, But More Cuts Possible, Report Says
May 28, 2015 | BNA Daily Environment Report
By Andrew Childers
The U.S. commitment to reduce its greenhouse gas emissions by at least 26 percent by 2025 is achievable, but further reductions are possible with stronger regulations and a greater emphasis on energy efficiency, the World Resources Institute said.
The U.S. can achieve that emissions reduction target using existing executive authorities such as regulating carbon dioxide emissions from power plants and rules targeting additional emissions sources, the World Resources Institute said in its May 27 report, “Delivering on the U.S. Climate Commitment: A 10-Point Plan Toward A Low-Carbon Future.”
The U.S. has pledged to cut its greenhouse gas emissions by between 26 percent to 28 percent by 2025 from 2005 levels before international negotiation of a new climate agreement in Paris in November and December (88 DEN A-12, 5/7/15).
The U.S. could reduce its emissions by as much as 30 percent from 2005 levels by 2025 by strengthening its Clean Power Plan (RIN 2060-AR33), which would set carbon dioxide emissions standards for the power sector in each state, to foster additional reductions through energy efficiency and renewable generation, the report said.
The 10-point plan identifies opportunities for the U.S. to achieve emissions reductions including regulating power plants, improving energy efficiency at residential and commercial buildings, programs to reduce use of hydrofluorocarbons (HFCs), stronger vehicle emissions standards and regulating methane emissions from oil and natural gas systems, landfills and coal mines. However, the plan does not include measures to address greenhouse gas emissions from forestry or agriculture.
Stronger Power Plant Standards Possible
The Environmental Protection Agency's Clean Power Plan, which is expected to be finalized in August, would provide a significant portion of the projected emissions reductions. As proposed, the rule would account for 42 percent of emissions reductions in the World Resources Institute's base case scenario. However, the group said in its report that the EPA's proposal could be strengthened to promote additional deployment of renewable energy and energy efficiency.
“We know the Clean Power Plan will accelerate these changes, but there's still some potential left there in terms of energy efficiency and renewables,” Karl Hausker, senior associate in the U.S. climate initiative at the World Resources Institute, said.
A stronger power plant rule coupled with new vehicle emissions standards and industrial energy efficiency requirements could reduce U.S. emissions by as much as 34 percent to 38 percent by 2030, the report said.
White House Pressed on Analysis
Following a panel discussion of the report, Rick Duke, deputy director for climate policy at the White House Office of Energy and Climate Change, was repeatedly asked during a question and answer period whether the White House would publicize the assumptions that led to its decision to adopt the 26 percent to 28 percent emissions reduction target and the steps the administration envisions will achieve that goal.
Duke said the administration's plans were detailed in President Barack Obama's climate action plan, which ordered his administration to take steps to regulate power plant and vehicle emissions, as well as in biannual reports to the United Nations on the U.S.'s progress toward meeting its climate commitments.
Duke also said the World Resources Institute's report is further evidence that the U.S. targets are realistic and feasible.
“This report from WRI is also consistent with our internal assessment that we're on track with both our 2020 and 2025 commitments,” he said.
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Report: U.S. Can Meet Climate Target With Stronger Policies
May 28, 2015 | PoliticoPro
By Andrew Restuccia
The United States can meet — and maybe even surpass — its 2025 greenhouse gas emissions target without help from Congress, but it will have to go far beyond the policies in President Barack Obama’s climate change plan, according to a new report due out Wednesday.
The report, from the World Resources Institute, says the United States must strengthen existing rules and impose new policies that expand the emissions cuts beyond the power sector to other parts of the economy in order to meet the Obama administration’s target of cutting emissions by 26 percent to 28 percent below 2005 levels by 2025.
“The Clean Power Plan alone doesn’t get you there,” Karl Hausker, a senior fellow at WRI and lead author of the report, said in an interview. “You can’t coast forward on those policies and hit your 26 percent. You need to aggressively move on to pretty much every sector of the economy.”
The WRI report is perhaps the most comprehensive analysis to date of how the United States can meet its climate change target. It also offers the latest evidence that the U.S. cannot meet the target without sustained, ambitious action by both Obama and the next president.
Obama hopes to put in place much of his climate change agenda before he leaves office, making it more difficult for a potential Republican president to undo key greenhouse gas rules. But it’s unlikely that a GOP president would seek to build on those climate regulations with new measures that WRI says are needed to meet the target.
In addition to the EPA’s climate change regulations for power plants (which are expected to be finalized this summer), the report says the United States will also have to impose stronger energy efficiency standards for appliances and fuel efficiency standards for passenger vehicles and truck. And the country will need tighter emissions rules for new and existing natural gas systems and measures that shrink hydrofluorocarbon pollution just to reach a 26 percent emissions cut — the low end of the administration’s target. Those policies would put the U.S. on track toward reaching a 34 percent emissions cut by 2030, according to the report.
Still, the U.S. could achieve cuts of up to 30 percent below 2005 levels by 2025 if it strengthens EPA’s climate regulation for existing power plants in a way that encourages states to deploy renewable energy and improve energy efficiency, the report says.
Even if the power plant rules are not expanded, the U.S. can achieve 30-percent emission cuts by “pushing the envelope” by improving vehicle efficiency, reducing travel demand and boosting industrial and building energy efficiency, according to the report.
The Obama administration’s 26 percent to 28 percent emissions cut target is the foundation of the domestic climate change plan the United States submitted to the United Nations in March. International negotiators hope to use countries’ plans as the basis of a new international climate change agreement set to be finalized in Paris later this year. Obama sees clinching a deal in Paris as a top second-term priority and a crucial part of his legacy as president.
Administration officials have long maintained that their 2025 target is ambitious and achievable, and they say the U.S. is already on a path toward meeting Obama’s earlier target of cutting emissions 17 percent below 2005 levels by 2020.
Meeting the 2025 goal will require an additional reduction of of 9 to 11 percent beyond the 2020 target, which would necessitate an “approximate doubling” of the 2005-through-2020 annual pace of emissions reductions, the U.S. said in the plan it filed to the United Nations in March.
The administration has said it hopes to make even deeper cuts in the coming decades, possibly as much as an economy-wide emissions cut of 80 percent or more by 2050 in the United States. A series of recent analyses have warned that the planet must reach net zero carbon emissions in the coming decades, perhaps as early as 2050, in order to prevent disaster.
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North American Ministers Form Climate Group
May 28, 2015 | BNA Daily Environment Report
Energy ministers from the U.S., Canada and Mexico have agreed to create a new working group on climate change and energy. The working group is “absolutely critical” to efforts to combat climate change through the deployment of innovative renewable energy technologies, modernization of the electricity grid and better energy efficiency, U.S. Energy Secretary Ernest Moniz said May 25. “The sense of urgency and spirit of cooperation demonstrated by Canada, Mexico and the United States serve as an example as the rest of the world takes urgent action on climate,” Moniz said in a statement. The working group will collaborate on developing low-carbon electricity grids, modeling and deploying clean energy technologies, and improving energy efficiency, carbon capture use and storage, climate change adaptation and resilience, and oil and gas sector emissions, Natural Resources Canada said in a statement. The agreement among Moniz, Natural Resources Canada Minister Greg Rickford and Mexico Energy Secretary Pedro Joaquin-Coldwell was reached at an Energy and Climate Partnership of the Americas Ministerial meeting in Merida, Mexico. Moniz's statement is available at http://1.usa.gov/1KoQZ9l. Natural Resources Canada's statement is available at http://bit.ly/1ArjQtH. -
Tom Steyer Aims To Get GOP Candidates ‘On The Record’ On Climate
May 27, 2015 | The Hill - E2 Wire
By Timothy Cama
Billionaire climate activist Tom Steyer said he does not support any of the Republican candidates for president but that it’s still important to get involved in the primary campaign.
Steyer told Gwen Ifill of PBS "NewsHour" that he would be thrilled if a Republican candidate ended up being stronger than a Democrat on the climate change and energy issues that he cares about, but none of the declared or potential candidates in the GOP field for 2016 have indicated as much.But “we’re seeing the Republicans move” on those policies, said Steyer, founder of the NextGen Climate PAC, through which he spent $70 million last year in an attempt to elect pro-environment candidates.
Instead, Steyer sees an opportunity for NextGen to highlight candidates’ positions on energy and climate, he told Ifill.
He said it is important, “in terms of trying to make sure that there is someone getting candidates on the record, keeping an honest record of that, giving them encouragement when they do the ... right thing to do, trying to expose them when ... [they aren't] facing up to the issue fairly.”
He continued, “That’s a job that we think [is] important for somebody in America to do, because we think American citizens have a right to know where the candidates stand on what is one of the key issues facing us.”
So far, NextGen has spent much of its efforts in the 2016 presidential election pointing out GOP candidates’ positions on climate change, the Keystone XL oil pipeline and related policies.
While it has mostly criticized candidates, it put out statements of support when New Jersey Gov. Chris Christie (R) and former Florida Gov. Jeb Bush (R) acknowledged some human role in climate change.
Steyer also told Ifill that he is confident that Democrat Hillary Clinton, whom Steyer supports for 2016 and has raised funds for, would come out in opposition Keystone.
Asked what he would do if Clinton supported the project, Steyer responded, “I actually don’t think we’re going to be faced by the question that you’re posing.”
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The Montreal Protocol Is Healing Earth’s Ozone Hole
May 27, 2015 | Chemical & Engineering News
By Stephen K. Ritter
Saving Earth’s protective stratospheric ozone layer from destruction was a major environmental crusade some 30 years ago, leading to the restriction and phase out of halocarbons and other ozone-depleting substances. But what would Earth look like today if the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer—the international agreement that gradually eliminated halocarbon refrigerants, solvents, and aerosol-can propellants—had not been put into force?
The grim outcome has been predicted with a new atmospheric chemistry model by researchers led by Martyn P. Chipperfield of the University of Leeds, in England (Nat. Commun. 2015, DOI: 10.1038/ncomms8233). The team found that the Antarctic ozone hole would have grown by an additional 40% by 2013. Their model also predicts that continued use of ozone-depleting substances would have thinned the ozone layer elsewhere around the globe by about 15%––roughly a doubling in ozone depletion since before the protocol went into effect. Periodic Arctic ozone holes that were discovered would have become a regular occurrence, the researchers say. The Leeds model also shows that the Antarctic ozone hole is recovering robustly and on track to disappear by about 2050.
“It is indeed very rewarding to read that the Montreal protocol has already had a positive effect on our planet,” says Mario J. Molina, a chemistry professor at the University of California, San Diego.
In 1974, Molina and F. Sherwood Rowland predicted how halocarbons could chew away Earth’s protective ozone layer by disrupting the sunlight-driven chain reactions that form ozone. Their prediction was deemed accurate when an ozone hole was first documented over Antarctica in 1985 and determined to be growing.
For people, the danger from ozone layer depletion is increased exposure to the sun’s damaging ultraviolet radiation and along with it increased incidences of skin cancer and eye cataracts. The loss of ozone also contributes to global warming as more of the sun’s UV and infrared energy warms Earth’s surface.
With the Montreal protocol in place, halocarbon atmospheric concentrations peaked in 1993 and have since declined. The 1995 Nobel Prize in Chemistry recognized Molina, Rowland, and Paul J. Crutzen (who worked on nitrous oxide’s role in ozone depletion) for their contributions toward averting an environmental catastrophe.
“The ozone story shows that once an environmental problem is identified it is possible for the scientific community to develop the necessary evidence and work together with decision-makers in government to address the challenge,” Molina tells C&EN. “That gives me hope that eventually issues such as climate change will be successfully addressed as well.”
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May 27, 2015 | PoliticoPro
By Jenny Hopkinson
The Obama administration opened its newest offensive in the water wars on Wednesday, championing protections for waterways and wetlands despite a fierce counterattack from powerhouse industries like agriculture, oil and home-building — and their supporters in Congress.
On its face, the Waters of the United States rule is largely a technical document, defining which rivers, streams, lakes and marshes fall under the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. But opponents condemn it as a massive power grab by Washington, saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch. And it comes amid years of complaints from Republicans about President Barack Obama’s regulatory agenda, which has encompassed everything from power plants and health insurers to Internet providers and for-profit colleges.
Critics are already fighting back: The House voted earlier this month to block the rule, with support from both Republicans and some farm- and energy-state Democrats, and similar legislation is moving through the Senate. Opponents are also preparing lawsuits that will add to an already long trail of litigation over the government’s powers to regulate water — an issue the Supreme Court has taken up twice, with confusing results, since 2001.
Obama was quick to add his personal endorsement to the rule, saying the measure is needed to protect vulnerable waterways and drinking water and to keep the economy going.
“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” Obama said in a statement after the EPA released a final version of the regulation. “My administration has made historic commitments to clean water, from restoring iconic watersheds like the Chesapeake Bay and the Great Lakes to preserving more than a thousand miles of rivers and other waters for future generations. With today’s rule, we take another step towards protecting the waters that belong to all of us.”
But House Speaker John Boehner accused the president of delivering yet another devastating blow to the economy.
“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” the Ohio Republican said in a statement. “[T]he rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers and manufacturers on the road to a regulatory and economic hell.”
The agencies and their supporters say the safety of drinking water and stream health are threatened because of weak state and local regulation and a lack of enforcement. The rule is meant to make it clearer which waterways EPA and the Corps of Engineers can oversee under the 43-year-old Clean Water Act, which covers “navigable waters” such as the Mississippi River and Lake Erie but is vague on how far upstream protections must go to keep those water bodies clean.
In essence, the rule would establish whether antipollution laws are triggered if a farmer blocks a stream to make a pond for livestock, a developer fills in part of a wetland to put up a house or an oil pipeline has to cross a creek.
“The only people with reason to oppose the rule are polluters who threaten our clean water,” senior White House adviser Brian Deese told reporters during a conference call. He added that the rule “is based on common sense. … The status quo is rife with unsustainable confusion over what’s protected and what’s not.”
The final rule ensures protections for tributaries that have physical signs of flowing water, even if they don’t run all year round, and ditches that “look and act” like tributaries, said Jo-Ellen Darcy, the assistant secretary of the Army for civil works. The rule also limits EPA regulatory oversight to any body of water within 1,500 feet of another water body already covered by the rule, unless they have a surface water connection.
EPA and the corps also decided to extend protections to regional water features, like prairie potholes and coastal bays in the Delmarva peninsula and the Carolinas, on a case by case basis.
EPA Administrator Gina McCarthy said the rule maintains long-held exemptions for agriculture and does not cover features like tile drainage systems, regular farm activities or the moving of livestock. The agency detailed many of the changes in a series of industry-specific fact sheets, also released Wednesday.
Despite the changes, McCarthy added that the new rule would expand the reach of the Clean Water Act by only about 3 percent. The measure is expected to take effect 60 days after it’s published in the Federal Register.
Defining where a navigable waterway begins and ends has long spurred disputes among the government, environmentalists and industry. Supreme Court rulings in 2001 and 2006 added to the confusion, imposing a less-than-clear requirement that upstream water must have a “significant nexus” to a navigable waterway to fall under the federal government’s jurisdiction.
Groups that back the rule, such as the Natural Resources Defense Council, the Sierra Club, Environment America and fishing organizations, want the definition to be as broad as possible, saying you can’t protect major lakes and rivers unless you protect their sources upstream. And they say the federal government needs an oversight role, argued that states lack the financial resources and manpower to keep water from becoming polluted.
Supporters of the rule were quick to herald Wednesday’s action.
“Small streams and wetlands provide drinking water to roughly 1 in 3 Americans and they must be protected from pollution at the source,” said Sen. Barbara Boxer of California, the top Democrat on the Environment and Public Works Committee, in a statement.
On the other side are Republicans and some of the biggest spenders in Washington.
“The administration’s cavalier attitude toward expanding the federal government’s authority into our backyards is absolutely outrageous,” said Sen. David Vitter (R-La.). “Not only were small businesses — who will be dramatically impacted by expanding of the definition of ‘waters of the United States’ — inappropriately excluded from the rule-making process, but the federal government shouldn’t be regulating puddles on private property in the first place.”
The Chamber of Commerce and the National Association of Manufacturers have joined the American Farm Bureau Federation, Dairy Farmers of America, pesticide manufacturers, mining companies, home builders, state and local governments, water utilities, flood control districts, the timber industry, railroads, real estate developers and even golf course operators among the more than 230 organizations and companies that have listed “Waters of the United States” on federal lobbying disclosures since the administration proposed the rule in March 2014.
Many food and beverage giants have pitched their thoughts to lawmakers on the measure, too, including Tyson Foods, Perdue Farms, Land O’Lakes, the potato giant J.R. Simplot and Ocean Spray Cranberries. Also weighing in are about 40 energy companies, including Halliburton, BP, Shell, Chevron, Rio Tinto and the Oklahoma Independent Petroleum Association, in addition to two dozen power companies such as Duke Energy and Pepco.
Many of the groups also made their case directly to White House and EPA officials during more than a dozen visits after the rule was sent for review at the Office of Management and Budget, meeting records show.
The lobbying effort has already had some success.
This month, the House passed a bill from Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) that would force EPA and the Army Corps to kick their rule back to the drawing board and consult with states and industries before writing a new proposal. The 261-155 vote included yes votes from 24 Democrats, of whom eight sit on the House Agriculture Committee and two sit on Energy and Commerce. Four of the Democrats are from energy-heavy Texas.
The Senate is considering a similar measure from Sen. John Barrasso (R-Wyo.) that is awaiting a vote in the Environment and Public Works Committee and has the backing of Senate Majority Leader Mitch McConnell. Other supporters include three Democrats on the Agriculture Committee: Joe Donnelly of Illinois, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.
Barrasso’s measure includes more detailed consultation requirements than the House version and sets a Dec. 31, 2016, goal for EPA to finish a revised rule.
The White House has threatened to veto Shuster’s bill, arguing that it would “derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.”
However, that won’t stop the agriculture industry and other opponents from suing. Among other objections, the suits are likely to debate whether the agencies violated the Administrative Procedure Act when trying to garner support for the measure and in reviewing comments, whether the rule-making violated federal protections for small businesses, and whether the rule’s expanded oversight of waterways falls outside what Congress intended when it wrote the Clean Water Act.back
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EPA Chief: We Made ‘Substantial Changes’ to Water Regulations
May 27, 2015 | The Hill - E2 Wire
By Devin Henry
Environmental Protection Agency (EPA) administrator Gina McCarthy said officials made “substantial changes” to the clean water rule it finalized Wednesday after sorting through public comments on the proposal.
The EPA’s rule designates which small waterways the agency can regulate under the Clean Water Act. Republicans, rural groups and agriculture interests have slammed it as a extension of federal power, one that could give the EPA authority over a range of new waterways.
But McCarthy said that’s not the case, noting that the rule maintained and expanded exclusions for farming, ranching and forestry, especially after the public comment period.
“They asked us about ditches, and they asked us about ditches, and they asked us about ditches, so we not only kept all of the exclusions and exemptions for agriculture that are in the current rule, we actually expanded those,” she said on a press call with reporters.
The new Clean Water Rule has a more narrow definition of tributaries that fall under the EPA’s purview, McCarthy said, and leaves out ditches unless they function as tributaries, flowing downstream into other bodies of water.
“If you’re not a tributary and you’re a ditch, you ain’t in,” she said. “We got as clear as we could be that unless you act like a tributary and you have the features of a tributary, you are simply not jurisdictional under the Clean Water Act.”
The rule also defines the situations in which the EPA will review water use permits. It clarifies the EPA’s approach to issues like erosion features, such gullies and rills, water impoundments like dams, and constructed wetlands. The rule, McCarthy said, does not add new permitting requirements for agriculture interests.
“I think you will see that we made substantial changes that basically made this rule clearer, crisper and did the job that we were supposed to do and I’m very proud of the work we did here,” she said.
The EPA’s assurances are unlikely to relieve concerns over the rule’s impact on agriculture. The industry and its legislative allies have been critical of the water rule since officials released it in its proposed form last year.
That criticism continued after the final rule’s release on Wednesday. Sen. Steve Daines (R-Mont.) said the rule will “cripple Montana’s agriculture and natural resources industries.” Rep. Chris Collins (R-New York) called it “a continuation of [the Obama administration’s] regulatory assault on our nation's farmers.”
Bob Stallman, the president of the American Farm Bureau, a group long opposed the rule, said it was “undertaking a thorough analysis of the final [waters of the United States] rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period.”
Sen. Jim Inhofe (R-Okla.), the chair of the Senate Environment and Public Works Committee, said that “instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.”
The final rule puts regional water features such as “prairie potholes” — shallow wetlands often found in the Midwest — within the agency’s jurisdiction so long as they connect to a wider network of flowing water.
“In particular regions of the country, there are unique water bodies that are also scientifically shown to influence the health of downstream waters and therefore may be protected under the Clean Water Rule,” Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, said.
Congressional Republicans have said they will continue to fight the water rule. The House has passed a bill to repeal the measure and a group of Senators, including Inhofe, have pitched a bill to overturn the rule and instruct the EPA on how to write a new one.
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EPA Defends Approach To 'Significant Nexus' Legal Test In Final CWA Rule
May 27, 2015 | InsideEPA
By Bridget DiCosmo
EPA is defending the legality of its “significant nexus” approach in its final Clean Water Act (CWA) rule that it will use to help determine whether waterbodies are subject to the law, as critics say the agency failed to quantify when waters are “significant” and that the method is too similar to an approach the Supreme Court has already rejected.
In a technical support document (TSD) released with the final CWA jurisdiction rule May 27, EPA acknowledges that public comments on the proposed version of the regulation raised concerns about the legality of EPA's methods for allowing jurisdictional determinations to be broadly based on a connections, or nexus. But EPA and the Army Corps of Engineers, which jointly crafted the waters rule, takes steps to distance the approach from the prior policy that the justices scrapped.
Critics of the April 2014 proposal said that significant nexus test for jurisdiction was too similar to a “migratory bird rule” struck down by the Supreme Court in a 2001 ruling, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers. The justices found that non-adjacent, isolated waters fall outside of CWA jurisdiction when an ecological connection such as migratory birds is the sole basis for arguing jurisdiction.
But the TSD says the CWA rule “does not establish jurisdiction based on the Migratory Bird Rule,” and that the provision that was interpreted in the migratory bird rule has been deleted, and that its regulatory conclusions are “based on careful examinations of the science and the law to conclude that particular categories of waters significantly affect the chemical, physical, and biological integrity” of downstream, traditionally regulated waters.
The fight over EPA's method of determining significant nexus offers an early insight into potential lawsuits over the final waters rule that groups can file once the agency publishes it in the Federal Register.
Other early concerns raised over the rule include claims from Republicans, industry groups and others that EPA and the Corps failed to adequately consult with states and others over the rule, leading to a flawed policy. Critics of the rule say this allegedly flawed process means that Congress should approve a pending bill that would force the agencies to scrap the final rule and re-propose a new rule based on extensive new consultation.
Determining Jurisdiction
EPA however has defended its outreach on the CWA rule, and in its TSD similarly offers a robust defense of the significant nexus test that it and the Corps will use to determine jurisdiction.
The rule aims to clarify which waters are protected under the CWA following confusion resulting from competing tests that emerged as a result of SWANCC and a 2006 ruling, Rapanos v. United States.
In Rapanos, Justice Anthony Kennedy said in a concurring opinion that wetlands, whether “alone or in combination with similarly situated lands in the region,” pose a “significant nexus” and are therefore jurisdictional when they “significantly affect the chemical, physical, and biological integrity” of downstream, traditionally navigable waters.
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to traditional navigable waters, and wetlands that have a "continuous surface connection" to such relatively permanent water bodies, are jurisdictional under the water law.
The final rule adopts the language from the Kennedy test, finding that tributaries and “adjacent waters” share a significant nexus with downstream waters and are jurisdictional, identifying specific types of other waters, such as prairie potholes, that could share a significant nexus to be assessed on a case-by-case basis.
The rule says that waters have significant nexus and are therefore covered by the CWA if “any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the the chemical, physical, or biological integrity” of the nearest jurisdictional water. traditional navigable waters, interstate waters, or the territorial seas.
To further clarify how significant nexus determinations will be made, the rule offers a list of specific functions to be considered in those decisions, including sediment trapping, nutrient recycling, pollutant trapping, transformation, filtering, flood retention, provision of life cycle dependent aquatic habitat and others.
Significant Nexus
But industry and GOP opponents of the rule criticized the agency's approach to the significant nexus test in the proposed version of the rule, saying that it too broadly considers “any connection” to indicate jurisdiction -- an approach rejected in Rapanos -- and the consideration of functions too closely resembles the migratory bird rule.
For example, Susan Bodine, general counsel for the Senate Environment & Public Works Committee's Republican majority, told a May 14 American Law Institute Continuing Legal Education event in Washington, D.C., that the agency's connectivity report, which provides the scientific justification for the rule, cites biota movement as vector for connectivity as evidence that the rule is trying to resurrect the migratory bird regime.
But the TSD seeks to differentiate the migratory bird rule from the approach taken in the CWA rule. “[F]or those limited waters for which the agencies will perform a case-specific significant nexus analysis, there is no authorization for considering migratory birds in the rule and the preamble is explicit that non-aquatic species or species such as non-resident migratory birds do not demonstrate a life cycle dependency on the identified aquatic resources and are not evidence of biological connectivity for purposes of the rule,” the TSD says.
Critics also said that because the rule lacks metrics for quantifying when a chemical, physical, or biological effect amounts to a significant nexus, it is inconsistent with the Kennedy opinion, which says a connection must not be speculative or insubstantial. But the TSD also offers a defense of the final rule's use of this approach, saying, “First, neither Justice Kennedy’s opinion nor any Circuit Court to address this issue required metrics or quantification of the waters’ effects on the downstream chemical, physical or biological integrity.”
In the document, EPA cites Precon Dev. Corp., Inc. v. U.S. Army Corps of Eng’rs II, a March 10 ruling in which the U.S. Court of Appeals for the 4th Circuit notes that the significant nexus standard is a “flexible ecological inquiry” and can be supported by either quantitative or qualitative applicability.
“The appellate courts have accepted a variety of evidence, including but not limited to, photographs, visual observation of stream condition, flow and morphology, studies, dye tests, scientific literature, maps, aerial photographs, and remote sensing data,” EPA says, citing a 2007 3rd Circuit decision in Northern California River Watch v. City of Healdsburg and a 2008 5th Circuit ruling in U.S. v. Lucas.
Water 'Boundaries'
EPA and Corps officials say the CWA rule sets clearer “boundaries” on which waters are and are not covered by the CWA than both existing law and the April 21, 2014 proposed rule and will provide regulatory certainty for agriculture, utilities, development and other industry sectors by dramatically reducing the need for case-by-case analysis.
The agencies in the final rule narrow the definition of “tributaries” by excluding wetlands and open waters that lack beds, banks and high water marks. The final rule defines tributaries as “waters that are characterized by the presence of physical indicators of flow -- bed and banks and ordinary high water mark (OHWM) -- and that contribute flow directly or indirectly” to downstream traditionally jurisdictional waters.
The final rule also narrows the definition of adjacency from all waters in riparian or flood areas or those with surface or shallow subsurface connections to jurisdictional waters to limit the definition to waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the OHWM.
While the proposed rule would have subjected all “other waters” to individual significant nexus determinations, the final rule attempts to limit the need for such case-by-case analysis. The rule limits those waters to be considered on a case-by-case basis to regional waters that are similarly situated, including prairie potholes, Delmarva and Carolina Bays, western vernal pools in California and Texas coastal prairie wetlands, as well as waters within the 100-year floodplain of a traditionally navigable water or within 4,000 feet of jurisdictional waters. “We were really careful to set boundaries to do case-by-case” analysis, EPA Administrator Gina McCarthy said during a May 27 press call, adding that the rule “creates clear boundaries never done before” and includes first-time exclusions for certain types of ditches that fall outside the “tributary” definition, stormwater features, erosional features, groundwater, and other features while retaining all existing agricultural and other exemptions.
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Other Crude-by-Rail Issues Take Spotlight As Tank Car Rule Moves to Litigation Phase
May 28, 2015 | BNA Daily Environment Report
By Rachel Leven
The federal government and others are moving to address safety and environmental issues associated with crude-by-rail services beyond those associated with a recently finalized Transportation Department rule, a department official and other speakers said May 27.
“It's worth noting that there's a whole host of local questions that are outside of the tank car rule,” Sean Dixon, a staff attorney for Riverkeeper, said during an American Bar Association webinar.
Meanwhile, the department's tank car and operational controls rule is mired in litigation, and more administrative or legal challenges are still possible, including from the Association of American Railroads. But while this piece of the safety puzzle is being determined, the federal government, railroads and environmental groups are mindful that there are other prevention, response and even mitigation steps that can be addressed.
The webinar centered on the department's Pipeline and Hazardous Materials Safety Administration final rule, which implemented stricter requirements for large carloads of flammable liquids being shipped by rail.
It also focused on other environmental and safety challenges that are coming up related to crude oil and other flammable liquid train derailments, which have resulted in threats to drinking water and other environmental and property damages (85 DEN A-14, 5/4/15).
Areas to Watch
On the regulatory front, Sean Ford, an attorney advisor for the Transportation Department, highlighted several upcoming rules that are in the works ranging from requiring more thorough oil spill response plans for trains carrying certain flammable liquids to requiring more crew members on certain trains (51 DEN A-10, 3/17/15).
There are also rules in the works on requiring risk reduction planning and “securement” of certain trains, Ford said. The securement rule would aim to prevent incidents similar to the crude oil train derailment in Lac Megantic, Quebec in July 2013 that killed 47 people (174 DEN A-7, 9/9/14).
In addition to regulatory requirements for industry, Dixon said that crude-by-rail transport raises a host of air quality and water protection concerns.
Concerns Differ in Communities
Each community that a train runs through will have different concerns, Dixon said. For example, if the train travels over a bridge, releases crude oil over water and that water affects drinking water supplies, that could be a unique issue to prepare for or consider, whereas a train that runs through a land-centered community may be more worried about air quality issues resulting from a crude oil train derailment in highly populated areas, he said.
Notably, many crude-by-rail issues also have an environmental justice component—for example, right to know issues under the Emergency Planning and Community Right-to-Know Act. Many rail yards and loading terminals for these trains are located near low-income or minority communities and put these communities at higher risk, Dixon said.
Administrative Appeal Extension
But even as these issues begin to receive more attention, tank car safety issues aren't solved yet. The Association of American Railroads has requested that the Transportation Department extend its 30-day administrative appeal deadline for its final rule on tank car and operational controls for crude oil and other flammable liquids transport by rail, Michael Rush, senior vice president for the railroad group, said.
So far, the railroad group has expressed disappointment with certain brake requirements included in the PHMSA final rule but hasn't challenged the rule in court. On the webinar, Rush highlighted instances where it seemed that the department hadn't considered comments that had been submitted and noted that a key document cited in support of the railroad-opposed electronic brake requirement was released after the rule itself (86 DEN A-16, 5/5/15).
The rule (RIN 2137-AE91) was published in the Federal Register May 8 (80 Fed. Reg. 26,644) after being announced May 1 (85 DEN A-14, 5/4/15). Barring a deadline extension, the rule can be challenged administratively through the Transportation Department only through June 8.
Lawsuits Filed
Several other groups have lawsuits in court, including the American Petroleum Institute, the American Short Line and Regional Railroads Association and a group of environmental and public interest groups led by the Sierra Club (97 DEN A-20, 5/20/15).
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Schumer Formally Introduces Crude-by-Rail Bill
May 28, 2015 | BNA Daily Environment Report
Sen. Charles Schumer (D-N.Y.) May 22 formally introduced a bill that would make requirements for moving flammable liquids, such as crude oil, by rail more stringent than a recently released Transportation Department final rule. The Eliminating Dangerous Oil Cars and Ensuring Community Safety Act (S. 1462) would make the final deadline five years earlier than the rule—by May 2020—for phasing out use of non-retrofitted DOT-111 and CPC-1232 standard tank cars for moving flammable liquids. The bill would also expand applicability of speed requirements, implementing speed limits to 40 miles per hour in communities with a population density equal to or greater than 20 people per mile. Additionally, routes used by trains carrying crude oil or ethanol would be required to have positive train control systems installed by 2018. It would also require more thorough oil response plans for trains carrying certain products. The bill, which Schumer said May 4 he intended to introduce, is available at http://op.bna.com/env.nsf/r?Open=rlen-9wwl6m (86 DEN A-2, 5/5/15). The fact sheet is available at http://op.bna.com/env.nsf/r?Open=rlen-9wwln7.
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