Preview Newsletter
ACC June 10
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(ACC Mentioned) Chemtura May Consider Selling Off Part Of Itself
Jun 9, 2015 | Plastics News
By Simon Robinson
Chemtura Corp. may break itself up with the polyurethane business being potentially for sale as a single unit or in parts, CEO Craig Rogerson said at an American Chemistry Council meeting in Colorado Springs, Colo., according to a report by Bloomberg. Philadelphia-based Chemtura was assembled in the late 1990s from a number ... -
(ACC Mentioned) Polyurethanes Conference Explores Advancements and Research in Environment, Health, and Safety
Jun 9, 2015 | Plastics Engineering
Attendees of the 2015 Polyurethanes Technical Conference conference will have the opportunity to explore industry developments, innovations and research in environment, health and safety (EHS) during a dedicated pre-conference workshop and technical session. Hosted by the Center for the Polyurethanes Industry (CPI)... -
(ACC Mentioned) Buy Aarti Industries; target of Rs 396: CD Equisearch
Jun 10, 2015 | NBC - MoneyControl
AIL is one of India's leading manufacturers of chemicals and pharmaceutical intermediates: dyestuff; pigment; agro chemicals; speciality chemicals; active pharmaceutical ingredient (API); intermediates of API. If the forecast of The American Chemistry Council is anything to go by, then the speciality chemicals market appears to be c one of the... -
(ACC Mentioned) China's CPPIA Joins “Operation Clean Sweep” / Initiative With Goal Of Zero Pellet Loss Now Has 18 Signatories
Jun 10, 2015 | Plasteurope
The China Plastics Processing Industry Association (CPPIA, Beijing; www.cppia.com.cn) has become the 18th global trade association to sign on to “Operation Clean Sweep” (OCS, www.opcleansweep.org), signatories of which undertake to battle marine debris by promoting the goal of zero pellet loss. The Chinese group joined... -
(ACC Mentioned) Tracking a Deadly Problem in the US
Jun 9, 2015 | The New York Times - Newsletter
By Nicholas Kristof
Every year I hold a "win-a-trip" contest to take a student with me on a reporting trip abroad. This year my winner is Austin Meyer of Stanford University, but if you're thinking that that doesn't look like Congo or Cambodia, you're right. We're actually in Baltimore, and that's where my Sunday column is from. -
(ACC Mentioned) Oregon May Regulate Toxic Chemicals In Toys
Jun 9, 2015 | Statesman Journal
By Tracey Loew
A bill that would regulate toxic chemicals in children’s products is back before the Oregon Legislature. “Many of these chemicals in children’s products and toys can lead to serious health effects,” Sheri Malstrom, a public health nurse, said at a brief hearing in a Joint Ways and Means subcommittee Tuesday. The hearing was continued... -
Toy Industry Backs TSCA Reform As Brake On State Activity
Jun 9, 2015 | Chemical Watch
By Kelly Franklin
The Toy Industry Association (TIA) is calling for comprehensive reform of the Toxic Substances Control Act (TSCA) because it will stop the increase of “inconsistent” regulation at the state and county level. Chemical regulation bills, affecting the toy industry, have been passed or proposed in Oregon, Maine and Minnesota. In New York, the... -
Significant New Use Rules Proposed by EPA For 30 Processing Aids, Other Chemicals
Jun 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Significant new use rules that would allow the Environmental Protection Agency to oversee new uses of 30 mineral processing aids, surfactants, nanotubes and other chemicals will be proposed in a notice scheduled for publication in the June 10 Federal Register. The EPA already has allowed each of the 30 chemicals to go into production... -
Chemicals In Your Popcorn? Asks the Times’ Kristof. Yes, There Are
Jun 4, 2015 | American Council on Science & Health
We have often taken note of the Times’ columnist Nicholas Kristof’s rants expressing his concerns about various chemicals and substances he fears in his (and our) everyday environment. Here are some of the issues with which he and we have disagreed over the past 2-3 years... -
ECHA: Chemical Companies Should Include Nano Research Results in REACH Dossiers
Jun 10, 2015 | BNA Daily Environment Report
By Stephen Gardner
Chemicals companies should review their REACH registration dossiers to see if updates are necessary in the light of the finalization of an Organization for Economic Cooperation and Development nanomaterial testing program, the European Chemicals Agency said June 9. -
(ACC Mentioned) Obama Admin Outlines Voluntary Risk-Reduction Measures
Jun 9, 2015 | E&E News PM
By Sam Pearson
U.S. EPA and the Occupational Safety and Health Administration issued a long-awaited safety alert yesterday describing how chemical facilities can switch to safer procedures to reduce the consequences of a toxic release or other safety threats. The seven-page document, which was sent to stakeholders last night... -
EPA-OSHA 'Alert' Backing Voluntary Use Of IST Spurs Fresh Push For Rule
Jun 9, 2015 | InsideEPA
By Dave Reynolds
EPA and the Occupational Safety and Health Administration (OSHA) have issued a new “alert” backing voluntary use of inherently safer technologies (IST) to reduce risks and improve safety at chemical plants, but advocates say the non-binding alert highlights the need for EPA to quickly issue a rule that would mandate the use of IST. -
Bill Would Put Limits on BLM Regulation Of Oil, Gas Operations, Including Fracking
Jun 10, 2015 | BNA Daily Environment Report
By Alan Kovski
A bill to give states the lead role for regulation of hydraulic fracturing—overriding a recent federal rule on fracking on federal lands—drew a few supportive remarks during a Senate hearing June 9 as part of an effort to pull together a very broad legislative package on energy. -
EPA Looks at Fracking Risks to Water: No Data, No Problem?
Jun 9, 2015 | Environmental Defense Fund
By Mark Brownstein
The Environmental Protection Agency (EPA) released its long-awaited draft report on impacts associated with hydraulic fracturing on drinking water last week, completing the most extensive scientific review of published data to date. At nearly 1,000 pages, it’s a substantial report. But it’s nowhere near a comprehensive evaluation.... -
Murkowski Wants Allies to Seek Exemption To Oil Export Ban as She Works for Repeal
Jun 10, 2015 | BNA Daily Environment Report
By Ari Natter
Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) said June 9 she is encouraging U.S. allies to formally request exemption from a law barring the export of domestic crude oil, as she seeks to build support to repeal the trade prohibition. -
Barrasso Revives Push For Faster Exports
Jun 10, 2015 | E&E Daily News
By Hannah Northey
Sen. John Barrasso (R-Wyo.) yesterday took another shot at trying to speed up federal approvals of liquefied natural gas exports by means of the defense authorization bill, arguing that U.S. domestic gas should be used as a foreign policy tool to counter Russian aggression. -
Yes, Humans Really Are Causing Earthquakes — But Not How You Think
Jun 9, 2015 | The Washington Post
By Chelsea Harvey
Lately, life has become a little more unpredictable in the central United States. The region has seen a significant increase in earthquakes over the past six years — some of them capable of causing some real damage — when before there was very little seismic activity in the area. -
What’s Missing From Moniz’s New Energy Deal
Jun 9, 2015 | Politico - The Agenda
By Michael Grunwald
This week Energy Secretary Ernest Moniz announced a modest deal with the electric utility industry, pledging to work together to promote plug-in electric vehicles. The deal included a few minor pledges from the Obama administration as well as the utility-backed Edison Electric Institute to invest in research and charging facilities and outreach... -
Appropriators Propose Modest Changes To Interior Funding, With Strings Attached
Jun 10, 2015 | BNA Daily Environment Report
By Alan Kovski
Interior Department funding for fiscal year 2016 would be raised moderately for the Bureau of Land Management and the Office of Surface Mining while being reduced slightly for the U.S. Fish and Wildlife Service under a draft bill released June 9 by the House Appropriations Committee. -
Challenges to Proposed Clean Power Plan Are Premature, D.C. Circuit Says in Dismissal
Jun 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Federal appellate judges dismissed challenges to the Environmental Protection Agency's proposed carbon dioxide emissions limits for power plants June 9, saying they are premature, but one judge left open the possibility of similar lawsuits in the future (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, 6/9/15; West Virginia v. EPA, D.C. Cir... -
House Proposes Deep EPA Spending Cuts; Water Infrastructure Funds Hit Hard
Jun 10, 2015 | BNA Daily Environment Report
By David Schultz
A $7.4 billion fiscal year 2016 spending package introduced by the House Appropriations Committee would provide the Environmental Protection Agency 13 percent less funding than President Barack Obama had requested and almost 9 percent less than the EPA's current funding levels. -
House Interior-EPA Spending Bill Would Promote Biomass
Jun 9, 2015 | E&E News PM
By Amanda Peterka
House appropriators' draft fiscal 2016 spending bill for the Interior Department and U.S. EPA includes a boost for biomass energy. A provision buried in the draft released this morning would require EPA to base its biomass policies and actions on the "principle" that forest biomass is a carbon-neutral form of energy. -
Jewell, Enviros Slam 'Dreadful' Policy Riders In Interior-EPA Bill
Jun 10, 2015 | E&E Daily News
By Amanda Peterka, Phil Taylor and Manuel Quiñones
A top Obama administration official joined environmentalists in blasting numerous policy riders contained in the House fiscal 2016 spending plan for the Interior Department and U.S. EPA unveiled yesterday. Interior Secretary Sally Jewell said she is especially concerned about a provision in the bill that would bar the Fish and Wildlife Service from preparing a potential Endangered Species Act listing rule for sage grouse. -
EPA Praises Ruling That Tossed Challenges To Carbon Rule
Jun 9, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA says it’s "pleased" that the D.C. Circuit Court of Appeals has dismissed early legal challenges to its proposed carbon rule for existing power plants as premature. "EPA addressed the legal foundation for our actions when we issued the proposed rule in June and we will address all... -
Court Rejects Challenge To Obama Climate Rule
Jun 9, 2015 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court on Tuesday threw out the first judicial challenge to the Obama administration’s landmark climate rule for power plants. The Court of Appeals for the District of Columbia Circuit ruled that the energy companies and states that filed the lawsuit had jumped the gun, and the court cannot yet review a regulation that... -
Obama Administration Readies Big Push on Climate Change
Jun 9, 2015 | The Wall Street Journal
By Amy Harder
The Obama administration is planning a series of actions this summer to rein in greenhouse-gas emissions from wide swaths of the economy, including trucks, airplanes and power plants, kicking into high gear an ambitious climate agenda that the president sees as key to his legacy. -
Court Rejects EPA Haze Plan For Mont.
Jun 10, 2015 | E&E News PM
By Jeremy P. Jacobs
A federal appeals court today struck down U.S. EPA's air pollution plan to reduce regional haze in Montana. The federal plan was challenged at the San Francisco-based 9th U.S. Circuit Court of Appeals by environmental groups as too weak and by the owner of the largest emitter in the state as too stringent. -
Clean Jobs Legislation Maintains Momentum in Illinois
Jun 9, 2015 | Environmental Defense Fund
By Dick Munson
At the start of the 2015 Illinois legislative session, a diverse coalition came together to introduce and support the Illinois Clean Jobs bill – legislation which would strengthen Illinois’ energy efficiency policies, as well as update and extend the state’s Renewable Portfolio Standard (RPS). The bill would also create a market-based strategy... -
Court Gives Obama a Climate Change Win
Jun 9, 2015 | The New York Times
By Coral Davenport
A federal court on Tuesday dismissed a lawsuit by the nation’s largest coal companies and 14 coal-producing states that sought to block one of President Obama’s signature climate change policies. The lawsuit, Murray Energy v. E.P.A., challenged the Environmental Protection Agency’s proposed rule to reduce planet-warming greenhouse gas... -
DOJ Urges 8th Circuit To Reverse Ruling Allowing Review Of CWA Orders
Jun 9, 2015 | BNA Daily Environment Report
By David LaRoss
The Department of Justice (DOJ) is urging the U.S. Court of Appeals for the 8th Circuit to reverse its ruling that allowed pre-enforcement judicial review of EPA and other agencies' determinations that waterbodies are jurisdictional under the Clean Water Act (CWA), a decision that created a split with other appellate courts' rulings. -
In Late-Night Squeaker, 2016 Spending Bill Barely Clears House
Jun 10, 2015 | E&E Daily News
By Sean Reilly
The House narrowly passed a fiscal 2016 transportation spending bill late last night that would impose stiff cuts on Amtrak, public transportation and the widely used "TIGER" grant program but still doesn't go far enough to satisfy some conservatives. The 216-210 margin of approval came as 31 Republicans joined 179...
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(ACC Mentioned) Chemtura May Consider Selling Off Part Of Itself
Jun 9, 2015 | Plastics News
By Simon Robinson
Chemtura Corp. may break itself up with the polyurethane business being potentially for sale as a single unit or in parts, CEO Craig Rogerson said at an American Chemistry Council meeting in Colorado Springs, Colo., according to a report by Bloomberg.
Philadelphia-based Chemtura was assembled in the late 1990s from a number of companies including Great Lakes Chemicals, Compton and Knowles and Witco. Rogerson said in February that the firm lacks scale in a number of its key markets.
The Bloomberg report suggests that Chemtura would find it hard to grow in polyurethane chemistry, but quotes Rogerson as saying that an adhesives purchase is possible. He added that a “complex” route may be taken with different parts of the business purchased by different buyers. There is no formal timetable for the process.
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Jun 9, 2015 | Plastics Engineering
Attendees of the 2015 Polyurethanes Technical Conference conference will have the opportunity to explore industry developments, innovations and research in environment, health and safety (EHS) during a dedicated pre-conference workshop and technical session. Hosted by the Center for the Polyurethanes Industry (CPI), the 58th annual conference will be held Oct. 5 to 7, 2015, at the Gaylord Palms Resort and Convention Center in Orlando, Fla.
“In today's industry, polyurethane professionals go above and beyond to adress environment, health and safety,” said Lee Salamone, senior director of CPI. “The Poyurethanes Technical Conference is a place where they can learn about the latest EHS advancements and research, enabling them to continue to uphold our industry's high standards.”
The pre-conference workshop, titled "Introduction to Environmental, Health and Safety (EHS) Issues Relative to Diisocyanates," is returning for a third year to give participants an opportunity to learn more about EHS regulations, industrial hygiene, toxicology, medical surveillance and exposure controls.
On Monday afternoon, the conference will feature a dedicated EHS session that will highlight the applications of spray polyurethane foam, ASTM standards and volatile organic compounds (VOCs), and finish with a discussion on environmental and health impacts of VOCs in the atmosphere. In addition, various poster and technical sessions on spray polyurethane foams, chemical life-cycles and flame retardants will discuss EHS issues.
In addition to exploring these topics, the conference has a full program of technical and poster sessions, and professional development courses. Attendees can view the conference agenda and register through the conference website.
About the American Chemistry Council
The American Chemistry Council (ACC) represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people's lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care®, common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business of chemistry is an $812 billion enterprise and a key element of the nation's economy. It is the nation’s largest exporter, accounting for twelve percent of all U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns of ACC members, and they have intensified their efforts, working closely with government agencies to improve security and to defend against any threat to the nation’s critical infrastructure
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(ACC Mentioned) Buy Aarti Industries; target of Rs 396: CD Equisearch
Jun 10, 2015 | NBC - MoneyControl
AIL is one of India's leading manufacturers of chemicals and pharmaceutical intermediates: dyestuff; pigment; agro chemicals; speciality chemicals; active pharmaceutical ingredient (API); intermediates of API. If the forecast of The American Chemistry Council is anything to go by, then the speciality chemicals market appears to be c one of the most promising globally. It predicts this market to grow by 3.6% annually over the next five years (see chart). In fact, the growth would peak to as high as 4.4% in 2016 before settling at 2.6% in year 2019. It reckons that the production of speciality chemicals, particularly in US, will be driven by strong demand from end-use markets, most notably light vehicles and housing.
For Aarti, the decline in crude oil prices has played havoc as it has trimmed realizations for its benzene based finished products - benzene prices for instance has tumbled from Rs 85/kg in Q2FY15 to Rs 50/kg in the fourth quarter. Volumes also took a knock - just 5-7% growth in Q3FY15- as its customers cut down on their inventories, fearing losses. Revenues as a result slid 5.5% in the second half of last fiscal.
For all its plans to add new products - hydrogenated products; toulene derivatives; ethylene compounds - and boost capacities of nitro chloro benzene (ncb), nitro toulene and others, sales growth seems elusive at least for next one year. We estimate the base effect to start kicking in by the fourth quarter of current fiscal which together with volume growth of 12-13% would propel revenue growth to 26% in FY17. Margins expansion though would somewhat soothe nerves - EBIT margin estimated to jump 100 bps in FY16.
Despite all odds - related to lower sales realization and inventory mark downs- the company would still manage earnings growth of 10.5% in the current year. Sparked by combined effect of base effect and double digit volume growth (though in low teens), earning is estimated to climb by 31%in FY17. Both working capital and asset turnover ratios would improve with commissioning of ncb, pda, nitration and chlorination units. Yet intense volatility in crude oil markets pose colossal risks for Aati's speciality chemical business still accounts for over eight -tenths of revenues and nine -tenths to allocable EBIT.
"But the current valuation of 12.6x FY16earnings and 9.6xFY17e EPS of Rs 33.02 deserves attention. Factoring in less brutal fall in sales of speciality chemicals, we have upped our current year earning estimates by 6.6%. Notwithstanding high susceptibility of earnings to external factors - crude oil prices; regulatory approvals for pharmaceuticals; emerging benefits from geographical diversification cannot be by any means gainsaid. We, therefore, retain our buy rating on the stock with target of Rs 396 (implying peg ratio of 0.6 on average earnings growth of 21%; previous target: Rs 355) based on 12xFY17e earnings over a period of 9-12 months. (For more info, refer to our dated Jan 22, 2015)", says CD Equisearch report.
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Jun 10, 2015 | Plasteurope
The China Plastics Processing Industry Association (CPPIA, Beijing; www.cppia.com.cn) has become the 18th global trade association to sign on to “Operation Clean Sweep” (OCS, www.opcleansweep.org), signatories of which undertake to battle marine debris by promoting the goal of zero pellet loss. The Chinese group joined the initiative – which is a product stewardship programme of SPI: The Plastics Industry Trade Association (Washington DC / USA; www.plasticsindustry.org) and the American Chemistry Council (ACC, Washington DC; www.americanchemistry.com) – ahead of the recent “Chinaplas” industry fair (www.chinaplasonline.com), held in late May in Guangzhou / China (see Plasteurope.com of 29.05.2015).
CPPIA first started considering participation in OCS in 2012 and after SPI had the licensing agreement translated into Mandarin followed through with signing up. Its membership means the association will promote OCS’ goals among its own members and throughout China. Commenting on CPPIA’s decision to join, SPI senior vice president of Industry Affairs Patty Long said, “Keeping plastic resin pellets out of our oceans and reducing the amount of plastic in the ocean overall will take international collaboration and commitment, and CPPIA’s participation in OCS is a crucial piece of that puzzle.” -
(ACC Mentioned) Tracking a Deadly Problem in the US
Jun 9, 2015 | The New York Times - Newsletter
By Nicholas Kristof
Every year I hold a "win-a-trip" contest to take a student with me on a reporting trip abroad. This year my winner is Austin Meyer of Stanford University, but if you're thinking that that doesn't look like Congo or Cambodia, you're right. We're actually in Baltimore, and that's where my Sunday column is from.
I will take Austin to India and Nepal later this year, but it seemed that if we're going to look at global poverty, we might first take a look at domestic problems. So we visited Baltimore to look at the challenges of urban poverty - and also at the solutions. My column looks at the drug problem and what we can do about it.
I tell the story of Ricky Morris, and I'd particularly like to thank Ricky for his willingness to use his name. One of the problems with drugs is that stigma leads sufferers to prefer anonymity, and thus the problem often becomes invisible. I think we're more likely as a society to address problems that we see around us, that we can put a human face on. So, thanks to Ricky and the many others who spoke to me about their addictions for their courage to step up.
Austin has a separate blog post about visiting strip clubs with me in Baltimore (no, it's not what you're thinking!) and finding public health lessons there.
By the way, some of you may remember an HBO documentary about my 2007 win-a-trip journey to Congo. One of the stars of that was Leana Wen, a medical student who was the winner of the trip. Well, one reason we went to Baltimore is that Leana is now Baltimore's health commissioner and doing great things introducing evidence-based measures to improve health there. I expect great things of Leana in the years ahead!
In response to my last column about toxic chemicals, a reader commented: "The article is incomplete without names. Who are the chemical companies? What are the names of their CEOs? And who are the elected representatives who represent their interests and not ours? The fact that names are not named makes me wonder if mainstream journalism is as co-opted as our legislative and judicial systems. Mr. Kristof...what's the story?" I think that's a fair complaint, and one widely shared by readers. In the case of the chemicals that I was writing about, there is no one villain, but responsibility lies with a large number of chemical manufacturers, product manufacturers and so on. The American Chemistry Council, run by Cal Dooley, a former Democratic member of the House of Representatives, is the main chemical lobby and is an appropriate target of public wrath; it's today's version of what the Tobacco Institute was a generation ago.
One of my nerdy interests has been the toll of childhood lead exposure - both the loss of cognitive ability and the increase in risk of incarceration for violent crime decades later. I discovered the links between lead and crime only when writing A Path Appears, but they are quite strong. Indeed, there's some evidence that the decline in crime in the 1990s resulted in part from the removal of lead in gasoline two decades earlier. It's just a tragedy that so many American kids, disproportionately poor ones, still are exposed to lead (mostly from paint today). The Chicago Tribune is doing some fine reporting on this issue, and I commend it to you.
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(ACC Mentioned) Oregon May Regulate Toxic Chemicals In Toys
Jun 9, 2015 | Statesman Journal
By Tracey Loew
A bill that would regulate toxic chemicals in children’s products is back before the Oregon Legislature.
“Many of these chemicals in children’s products and toys can lead to serious health effects,” Sheri Malstrom, a public health nurse, said at a brief hearing in a Joint Ways and Means subcommittee Tuesday. The hearing was continued to Wednesday.
Senate Bill 478 would require the state to maintain a list of chemicals of concern for children’s products, require manufacturers to provide notice of chemicals on the list that they use in children’s products, and eventually require manufacturers to remove or use substitutes for certain chemicals.
It’s modeled on a similar program implemented in Washington state in 2009. California, Vermont and Maine also have state-level toxics laws.
Proponents in Oregon have been trying to pass legislation for at least six years. A similar bill passed the Oregon House in 2013, but stalled in the Senate.
The current bill proposes focusing on the same 66 chemicals as Washington’s law.
“There is sound scientific evidence showing that each of the chemicals on this list are of high concern to children’s health,” said Angela Crowley-Koch, legislative director for the Oregon Environmental Council.
Opponents say such regulation should be done at the federal level.
The federal Toxic Substances Control Act, passed in 1976, gives the U.S. Environmental Protection Agency power to require testing of chemicals. But the EPA has rarely used that power, prompting states to move on their own.
Congress is working on an update to the law and is expected to vote on reforms this summer.
“States have the opportunity to participate in that process,” Tim Shestek, of the American Chemistry Council, told the committee.
However, the proposal has been criticized for restricting states’ rights to pass their own rules about dangerous chemicals.
Several amendments to the Oregon proposal are in the works.
Although they slightly weaken the bill, the Oregon Environmental Council is supporting them in order to get the bill passed, Crowley-Koch said.
tloew@statesmanjournal.com, (503) 399-6779 or follow at Twitter.com/SJWatchdog
About the bill
Senate Bill 478 would require the state to maintain a list of chemicals of concern for children’s products, require manufacturers to provide notice of chemicals on the list that they use in children’s products, and eventually require manufacturers to remove or use substitutes for certain chemicals.
The Joint Subcommittee on Human Services will hold a public hearing on the bill at 8:30 a.m. June 10 in Hearing Room F at the State Capitol.
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Toy Industry Backs TSCA Reform As Brake On State Activity
Jun 9, 2015 | Chemical Watch
By Kelly Franklin
The Toy Industry Association (TIA) is calling for comprehensive reform of the Toxic Substances Control Act (TSCA) because it will stop the increase of “inconsistent” regulation at the state and county level.
Chemical regulation bills, affecting the toy industry, have been passed or proposed in Oregon, Maine and Minnesota. In New York, the patchwork of laws has reached the county level, with legislation passed in Albany, Westchester and Suffolk counties banning the sale of toys containing certain chemicals, and with several other counties eyeing similar measures.
The Safe to Play Coalition, an industry alliance of which TIA is a member, has filed suit against Albany's Local Law J [would prohibit the sale of children’s products or clothing containing benzene, lead, mercury, antimony, arsenic, cadmium and cobalt in the county], resulting in a motion to stay that has stalled enforcement of the law.
“One of the biggest challenges for TIA members is the barrage of state and local attempts to ban the use of certain chemicals in children’s products, when these products are proven to be perfectly safe,” said Ed Desmond, TIA executive vice president of external affairs.
TIA hopes that passage of TSCA reform will curb the growth of these local laws. “In many cases, bill proponents cite the failure of the federal government to act as the reason for these local laws,” said Mr Desmond. “A federal approach to chemical regulation avoids the problems inherent in a series of potentially inconsistent county and state regulatory programmes.”
TIA hosted a Washington DC fly-in on 2-4 June, to allow members to meet face-to-face with policy makers. In an open letter, TIA president Steve Pasierb called on participants “to push back against these redundant local laws, while we at the same time advocate for a single, federal law that addresses chemical use nationally.”
TSCA reform bills have been introduced in both the Senate and House. The House is set to vote on the TSCA Modernization Act of 2015 (HR 2576) the week of 22 June (CW 4 June 2015).
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Significant New Use Rules Proposed by EPA For 30 Processing Aids, Other Chemicals
Jun 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Significant new use rules that would allow the Environmental Protection Agency to oversee new uses of 30 mineral processing aids, surfactants, nanotubes and other chemicals will be proposed in a notice scheduled for publication in the June 10 Federal Register.
The EPA already has allowed each of the 30 chemicals to go into production with protective measures outlined in the premanufacture notices (PMNs) the original manufacturer submitted to the agency.
The new use rules are supposed to adopt the PMN conditions so they would apply to other manufacturers that want to make the same substances.
Any use of any of the chemicals that does not take into account the protective measures—releases to water above specified limits, for example—would be considered a new use and require notification to the EPA. The notice must be filed 90 days prior to the proposed new manufacturing or use of the chemical.
Direct Final Rules Issued, Withdrawn
The 30 chemicals are among 52 substances for which the agency published direct final significant new use rules (SNURs) on Oct. 27, 2014 (79 Fed. Reg. 63,821; 207 DEN A-6, 10/27/14).
In December 2014, the EPA withdrew the rules for the 30 chemicals (RIN 2070-AB27) after receiving an adverse comment from the Bergeson & Campbell PC law firm and a notice of intent to file adverse comment from Manatt, Phelps & Phillips LLP (79 Fed. Reg. 76,900).
In its adverse comment, Bergeson & Campbell said the new uses described in the SNURs for 28 chemicals differed from those the EPA had discussed with the original manufacturer as the agency reviewed the PMNs for those same chemicals.
Manatt, Phelps & Phillips did not provide details on its concerns.
The agency said it has met with some of the parties who raised concerns about the 30 SNURs, but awaits their formal critique during the comment period, which ends July 10.
Five Chemicals, Groups of Chemicals
The proposed rules would cover five chemicals or groups of chemicals:
• functionalized carbon nanotubes, which are used as a thin film for electronic devices;
• propaneperoxoic acid, 2,2-dimethyl-, 1,1,3,3- tetramethylbutyl ester (CAS No. 22288–41–1), which is used for the production of polyvinyl chloride and polyethylene resin;
• four fatty acid amide hydrochlorides, which are used as surfactants in asphalt emulsions;
• five fatty acid amides, which will be used to make other chemicals and as additives for flotation chemicals, which help separate compounds for further processing;
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Chemicals In Your Popcorn? Asks the Times’ Kristof. Yes, There Are
Jun 4, 2015 | American Council on Science & Health
We have often taken note of the Times’ columnist Nicholas Kristof’s rants expressing his concerns about various chemicals and substances he fears in his (and our) everyday environment. Here are some of the issues with which he and we have disagreed over the past 2-3 years:
HBO’s “Toxic Hot Seat” is toxic all right: it seems to have addled Kristof’s brain
Nutty Nick Kristof flunks chemistry again, and again…
A science lesson for Nick Kristof of the New York Times
Kristof frightened of his couch — but maybe he should be on it
He has expressed his deep concerns about the usual paranoid, chemophobia targets: endocrine disruptors, BPA (he avoids toxic cash register receipts), flame retardants (he will no longer sit on his couch) — among other fears (which we find even more astounding considering he travels the world to the most impoverished areas in his quest to help the unprivileged and oppressed, often women and children, seeming fearless of actual threats such as cholera and malaria).
One thing seems clear from today’s popcorn-chemical column: he does read the NYTimes. We say this because it was only one month ago that his employer ran this column: Commonly used chemicals come under new scrutiny. The subject of that “news” story: PFAs, perfluoroalkyl chemicals, which we all are exposed to mainly from non-stick cooking appliances and surfaces. And lo and behold, that’s the same bunch of chemicals that inspire Kristof’s alarm. As he puts it:
What do a pizza box, a polar bear and you have in common?
Yes! PFAs! We addressed that article at the time, noting specifically that the Times’ drumbeat against chemicals seemed to reach a crescendo with that day’s publication, featuring as it did fearmongering alarmist stories on numerous chemicals, coincidentally. Focusing on PFAs (which include a chemical involved in the production of Teflon, although that substance — PFOA — is not actually present in non-stick products), we noted that the “concern” was generated as a result of an op-ed piece in the junk science journal Environmental Health Perspectives, co-written by two well-known antagonists of chemicals of all types. There is no scientific evidence impugning PFAs as an actual threat to human health.
Of course, it wouldn’t be an authentic Kristof alarm without a swipe at those deadly cushions containing flame retardants! He cites another of ACSH’s favorite whackos, Arlene Blum, another “expert” who avoids chemicals whenever she can. Nick says,
“Arlene Blum is a chemist whose warnings about carcinogens have proved prophetic. In recent years, she has waged an increasingly successful campaign against modern flame-retardant chemicals because of evidence that they also cause cancer, but she told me that PFASs “are even a bigger problem than flame retardants.”
Blum’s “increasingly successful” campaign’s achievements have escaped us: some states have in fact banned some types of flame retardants; some EU nations have banned other types. Yet, no studies have shown strong evidence of any adverse health effects of these lifesaving substances in people, despite the repetitive mantra of “toxic, carcinogenic” easily found in the green blogosphere echo chamber. ACSH’s publication remains as valid today as when it was first published. These chemicals are present in many of our household items because: they retard flames and save lives.
More “authoritative” evidence against PFAs etc.:
Scientists are already taking precautions and weighing trade-offs in their personal lives. R. Thomas Zoeller, a biology professor at the University of Massachusetts, Amherst, says he now avoids buying nonstick pans. Rainer Lohmann, an oceanographer at the University of Rhode Island, told me that he is replacing carpets in his house with wood floors in part to reduce PFASs. Simona Balan, a senior scientist at the Green Science Policy Institute, avoids microwave popcorn and stain-resistant furniture.
They forgot to mention the aluminum helmets they wear to guard against radioactive transmissions from the Mother Ship. See how this works? Kristof speaks to his select group of anti-chemical experts and then turns around and uses their fears, which comport nicely with his own, to enhance the fear and alarmism.
Then he actually descends from his chemophobia platform to attack the chemical industry for lobbying in support of the upcoming revision to the chemical regulatory law, TSCA (Toxic Substances Control Act of 1976). Kristof and his greeniac acolytes think this revised law, backed by large majorities in both parties, is still too lax on chemicals, and he accuses the chemical lobby of working similarly to Big Tobacco and the lead-paint industry of the 20th century. Surely, he implies, any industry that spends money to support the appropriate regulation of its products must be in the same pigeonhole as the cigarette makers of old.
ACSH’s Dr. Gil Ross had this comment: “Nick should stick to his main, important topic: attacking human trafficking and the oppression of the powerless, women and children generally. He should avoid advocacy on topics of which he has no training nor expertise.”
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ECHA: Chemical Companies Should Include Nano Research Results in REACH Dossiers
Jun 10, 2015 | BNA Daily Environment Report
By Stephen Gardner
Chemicals companies should review their REACH registration dossiers to see if updates are necessary in the light of the finalization of an Organization for Economic Cooperation and Development nanomaterial testing program, the European Chemicals Agency said June 9.
The Paris-based OECD said it completed a seven-year program to test the properties and behavior in the environment of a sample group of 11 nanomaterials that are commonly used in consumer products and in medical and industrial applications.
The substances tested were cerium oxide, dendrimers, fullerenes, gold nanoparticles, multiwalled carbon nanotubes, nanoclays, silicon dioxide, silver nanoparticles, single-walled carbon nanotubes, titanium dioxide and zinc oxide.
The OECD used 110 chemical tests to assess the properties of the nanomaterials and found that “standard test guidelines used for normal chemical substances are in the most part suitable for use on nanomaterials,” it said in a statement.
The organization's guidelines for the testing of chemicals would be adapted where necessary “to make sure that the intrinsic properties of nanomaterials are fully accounted for,” the OECD said.
Impact on REACH Dossiers
ECHA said registrants that have submitted substance dossiers under the European Union's REACH law should “carefully assess the new data,” and if relevant “update their registration dossiers accordingly to ensure the safe use of their substances.”
Under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals), companies supplying chemicals on the EU market must file detailed registration dossiers with ECHA. For substances supplied in annual volumes of 100 metric tons or more, the last registration deadline was June 1, 2013, while for substances supplied in annual volumes from 1 metric ton to 100 metric tons, the deadline will be June 1, 2018.
REACH does not require separate registration of standard and nanoforms of the same substance, but does call for enough information to be provided so that any risks arising from the use of substances can be managed, including those specific to the nanoforms of substances.
Limited Information
ECHA officials have said little information on the nanoforms of substances has been provided in REACH registration dossiers (228 DEN A-7, 11/26/14).
The chemicals agency “expects registrants with a nanoform of a substance to provide all available and relevant information on the registered substance in the registration dossier,” ECHA told Bloomberg BNA in a statement June 9.
“The release of the nano-specific data from [the] OECD should therefore be considered by registrants supplying these nanomaterials on the EU market,” it added.
“We welcome more nano-specific data becoming publicly available,” ECHA Executive Director Geert Dancet said in a statement. And the OECD research results would be “a contribution for better transparency of safety information on existing nanomaterials,” he said.
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(ACC Mentioned) Obama Admin Outlines Voluntary Risk-Reduction Measures
Jun 9, 2015 | E&E News PM
By Sam Pearson
U.S. EPA and the Occupational Safety and Health Administration issued a long-awaited safety alert yesterday describing how chemical facilities can switch to safer procedures to reduce the consequences of a toxic release or other safety threats.
The seven-page document, which was sent to stakeholders last night, was called for in a 2014 report mandated by an executive order issued by President Obama to improve safety at chemical facilities.
The 2014 report -- "Improving Chemical Facility Safety and Security -- A Shared Commitment" -- called for continued coordination between federal agencies to minimize the chance that unsafe facilities could slip through regulatory gaps and outlined agency activities in the years ahead (Greenwire, June 6, 2014).
The new alert "explains the concepts and principles and gives brief examples of the integration of safer technologies into facility risk management activities," the document said.
The material can help chemical facilities, the alert says, because "it is preferable to avoid hazards in the first place."
It adds, "Ultimately, it is up to you to understand your facility's risks and what you need to do to protection your workers, the public, the environment and your capital assets."
While the alert describes how companies can choose to use safer management approaches, its proposals are only voluntary for chemical producers, which advocates said today is inadequate to ensure the safety of workers and communities near chemical plants.
The guidance document "will not protect workers or communities from chemical disasters," the Coalition to Prevent Chemical Disasters said in a statement.
The group noted that more than 350 chemical accidents resulting in 79 deaths and 1,500 injuries have occurred since the deadly ammonium nitrate explosion at the West Fertilizer Co. in West, Texas, killed 15 people and injured more than 160 in April 2013. The continued toll, the group said, means regulations are needed.
Though some advocacy groups called for using stricter legal tools, like the Clean Air Act's general duty clause, to crack down on chemical facilities by requiring them to implement new safety measures, the Obama administration has consistently avoided this route. Rather, an interagency task force on chemical safety has tried to coordinate regulatory efforts and focus on industry outreach to increase compliance with existing regulations.
EPA is also working on a plan to update its risk management program regulations and expects to issue a notice of proposed rulemaking on the changes in September (Greenwire, May 22).
However, the Coalition to Prevent Chemical Disasters and other advocacy groups have warned that the tight timeline could imperil the administration's ability to finalize the changes (Greenwire, March 19).
Some industry groups, such as the Society of Chemical Manufacturers and Affiliates, have defended the existing risk management program in public comments, arguing that EPA "has not convincingly demonstrated that anything is wrong with the current [risk management plan] regulations" (Greenwire, Oct. 30, 2014).
A spokesman for the American Chemistry Council noted the group's longstanding position was that "information sharing and performance standards are better and more productive than a prescriptive approach."
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EPA-OSHA 'Alert' Backing Voluntary Use Of IST Spurs Fresh Push For Rule
Jun 9, 2015 | InsideEPA
By Dave Reynolds
EPA and the Occupational Safety and Health Administration (OSHA) have issued a new “alert” backing voluntary use of inherently safer technologies (IST) to reduce risks and improve safety at chemical plants, but advocates say the non-binding alert highlights the need for EPA to quickly issue a rule that would mandate the use of IST.
The “Chemical Safety Alert: Safer Technology and Alternatives” released June 9 details principles of IST, such as industrial plants switching from chlorine to a chemical that would pose less of a risk to human health or the environment if released as the result of a facility accident or terrorist attack. “The first choice for managing chemical hazards and risks is the use of Inherently Safer Technology (IST) or Inherently Safety Design (ISD),” the alert says.
While noting IST measures, such as alternative chemicals or process changes, are not available in all cases, the agencies describe IST as “generally being highly reliable” as a strategy for bolstering safety.
The alert is part of a three-step process for weighing an IST requirement that EPA outlined in a July 2014 request for information on overhauling its Risk Management Plan (RMP) accident prevention program. The RMP requires facilities handling extremely hazardous substances to craft plans to reduce the risk of accidents.
The ongoing three-step process includes issuing an alert and then guidance promoting IST, and considering feedback on both documents before possibly pursuing a rule requiring analysis and documentation of safer alternatives, and/or implementation of those alternatives where feasible. The agency has said that it will not dictate that companies use a specific technology, process or design to boost safety.
EPA's overhaul of the RMP is part of a broad federal plan to implement President Obama's Executive Order (EO) 13650 on improving the safety and security of industrial plants through improved communication and information sharing, as well as modernized policies, rules and standards.
Obama issued the EO Aug. 1, 2013, in response to an ammonium nitrate explosion in April of that year at a fertilizer facility in West, TX, that killed 14 people, including first responders, and injured roughly 200 others.
Environmentalists have long urged EPA to quickly propose a rule under its authority in section 112(r) of the Clean Air Act to require facilities to use IST. They say the agency's stepwise approach of informing the regulated community through alert and guidance before proposing a rule is not moving fast enough toward an IST requirement.
EPA's alert “will not protect workers or communities from chemical disasters,” the Coalition to Prevent Chemical Disasters says in a June 9 statement. “Two years after the fatal West, TX fertilizer explosion, we need more than voluntary measures and recommendations.”
Safety Alert
In the alert, EPA and OSHA outline a process that facilities may follow to incorporate IST, and urges companies to thoroughly understand the hazards of the chemicals and processes they use. Federal officials note that the alert is intended only as guidance and does not impose any requirements.
The alert includes a hierarchy of controls and a flow chart to help companies identify practical and cost-effective alternatives to make facilities safer. The hierarchy lists “inherent” measures such as changing to less or non-hazardous substances, or reducing quantities of hazardous chemicals as the most protective measures.
The list also includes other safety measures, such as “passive” equipment, added to processes, that does not rely on action by workers to function, and “active” safety features, which require operation to reduce risks. The alert says “procedural” steps, like operating directions, are the least protective.
The agencies say there is no one-size-fits-all approach to plant safety, and that facilities may need to employ multiple protective measures to make processes as safe as possible.
In response to the alert, the Coalition to Prevent Chemical Disasters statement reiterates calls from a March 19 letter to Obama, urging the administration to speed its consideration of an IST requirement to ensure a final rule is issued well in advance of his leaving office.
In the statement, the coalition notes that since the 2013 West explosion, 350 industrial accidents have resulted in 79 deaths and 1,500 hospitalizations.
The group says EPA's plan announced in the Unified Agenda late last year, to issue a notice of proposed rulemaking updating its RMP requirements in September, is not fast enough because finalizing an EPA rule can take 12-15 months, possibly taking the policy through to the next administration that might abandon it. “EPA is the federal agency with the greatest authority to issue new chemical facility safety rules, yet the agency has delayed proposing new regulations until September 2015,” the coalition says.
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Bill Would Put Limits on BLM Regulation Of Oil, Gas Operations, Including Fracking
Jun 10, 2015 | BNA Daily Environment Report
By Alan Kovski
A bill to give states the lead role for regulation of hydraulic fracturing—overriding a recent federal rule on fracking on federal lands—drew a few supportive remarks during a Senate hearing June 9 as part of an effort to pull together a very broad legislative package on energy.
The hydraulic fracturing bill, Protecting States' Rights to Promote American Energy Security Act (S. 15), introduced in January by Sen. Orrin Hatch (R-Utah), was one of 114 bills that now have been given at least passing consideration for possible inclusion in an overarching bill that Sen. Lisa Murkowski (R-Alaska) said she intends to draft before August.
The attention given to the fracking bill was only a very small part of a wide-ranging hearing that included 42 bills. It remains to be seen what bills will be included in the package, but Murkowski and Sen. Steve Daines (R-Mont.) expressed their frustration with the federal government's sometimes awkward relations with states.
Daines welcomed S. 15 as a step toward reducing duplicative, unneeded federal regulations, a commentary that has been heard often by critics of the Bureau of Land Management fracking rule.
Karen Harbert, head of an energy policy advocacy group for the U.S. Chamber of Commerce, was more open in her advocacy of S. 15. She told the committee that the BLM issued the fracking rule despite having “failed to identify any specific shortcomings of the existing framework of state regulation.”
State-Federal Coordination Wanted
Oil and gas companies trying to develop sites within the National Petroleum Reserve-Alaska (NPR-A) have encountered one federal regulatory problem after another, including BLM insistence on stricter methods of measuring oil for royalty purposes.
One of the bills considered June 9 was S. 1230, introduced May 6 by Murkowski to require the BLM to coordinate with states to create consistent rules and processes for the management of oil and natural gas production.
The bill would require Interior—in response to a request by a governor—to direct the BLM to enter into memoranda of understanding with a state to create consistent rules and processes for oil and gas operations on federal lands.
Murkowski stressed during the hearing that her bill was intended to reduce unneeded complications in regulation, not get around environmental protections.
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EPA Looks at Fracking Risks to Water: No Data, No Problem?
Jun 9, 2015 | Environmental Defense Fund
By Mark Brownstein
The Environmental Protection Agency (EPA) released its long-awaited draft report on impacts associated with hydraulic fracturing on drinking water last week, completing the most extensive scientific review of published data to date. At nearly 1,000 pages, it’s a substantial report. But it’s nowhere near a comprehensive evaluation – or even enumeration – of the risks that oil and gas development poses to both surface and ground water.
The biggest issues aren’t what’s in the document, but what isn’t. For all its heft, the biggest lesson in the report is just how little we actually know about these critical risks.
Serious Data Limitations
First, the report is a review of existing studies. EPA did almost no original scientific research or fieldwork. Nor does it include much in the way of actual water quality readings – or baseline, pre-drilling data by which to compare. EPA doesn’t use this data because, for the most part, it doesn’t exist.
That’s a serious knowledge gap that needs to be filled. But in the meantime, it’s a mistake to think there are no problems just because they don’t turn up in the extremely limited data available. Indeed, EPA expressly acknowledges in the executive summary that “data limitations preclude a determination of the frequency of impacts with any certainty.”
While industry advocates are touting the report as wholesale exoneration, newspapers including the New York Times and Washington Post recognized that activities related to hydraulic fracturing do, in fact, pose real pollution risks to drinking water. Although EPA didn’t find evidence of hydraulic fracturing activities causing widespread, systematic drinking water contamination, they did find many instances of localized impacts to water supply and water quality.
Even in the limited scope of activity studied in the report, EPA also referenced hundreds of spills hydraulic fracturing fluid and so-called “produced water” – the mixture of hydraulic fracturing fluid and salty water found naturally underground that comes back to the surface once the well is drilled – many of which EPA says resulted in contamination of water and soil.
Just the Tip of the Iceberg
Because of the huge size and massive scale of these oil and gas operations, the risks, however well managed, are genuine and numerous. Hydraulic fracturing itself is just one factor, and not even the biggest one. Other key issues include the ongoing physical integrity of the wells and the storage, transport, and disposal of some 800 billion gallons of wastewater generated annually by onshore oil and gas operations in the United States.
Contamination risk associated with handling this wastewater is high, and the consequences can be dramatic. In many areas, this produced water is far saltier than sea water. It will kill plants, and can ruin the landscape for decades. It’s often laced with up to hundreds of toxic chemicals (anti-freeze to name just one).
Gallon for gallon, in other words, a water spill could be even more dangerous for the environment than an oil spill.
The potential for leaky underground injection wells to pollute water supplies, not evaluated in the EPA report, is another crucial pathway that is critical for regulators and industry to control. More than two billion gallons of produced water are disposed in these wells every day.
Another emerging disposal issue is how to protect water supplies when we know little about the environmental characteristics of the wastewater, particularly in situations where industry is given the go ahead to discharge it into rivers.
Flying Blind
The impact of the unconventional oil and gas boom on our water supply is not well understood, and the findings of the EPA report underscore just how much work remains to be done to fully comprehend the risks, the magnitude of impacts, and the best ways to manage the risks.
Better and more accessible data on activities surrounding hydraulic fracturing operations is needed. There’s been some progress, and the EPA study is a step in the right direction in terms of better understanding this issue, but by no means are we out of the woods.
Almost ten million Americans live within one mile of a hydraulically fractured natural gas or oil well between 2000 and 2013. They deserve as much information as they can get. Our oil and gas team is poring over the lengthy report and will post further analysis of the report’s various pieces, so stay tuned.
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Murkowski Wants Allies to Seek Exemption To Oil Export Ban as She Works for Repeal
Jun 10, 2015 | BNA Daily Environment Report
By Ari Natter
Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) said June 9 she is encouraging U.S. allies to formally request exemption from a law barring the export of domestic crude oil, as she seeks to build support to repeal the trade prohibition.
A white paper written by Republican committee staff notes that countries such as Poland, Belgium, Japan and South Korea could benefit from U.S. oil exports and that the Commerce Department has existing authority to exempt certain countries from the ban.
“Nothing at all prevents another government from requesting an exemption from the general prohibition on U.S. oil exports,” the white paper said. “Exempting certain countries on a case-by-case basis, as the statutes and regulations currently allow, would be a partial and helpful step towards the modernization of U.S. energy policy.”
Murkowski has frequently cited Poland, which according to the white paper gets 96 percent of its oil imports from Russia—as a country that could benefit from U.S. crude oil exports, and told reporters she has spoken with officials from Japan about seeking an exemption to the law barring crude oil exports as well.
Talks With Japan
“It's no great secret when the Prime Minister Abe was here six weeks or so ago there was certainly discussion from me to those that I met with that this is an option and an opportunity and I think would be wise if they would seek it,” Murkowski said in remarks following a legislative hearing on legislation (S. 1312) that would repeal the ban, among other bills.
The export prohibition, which was put in place in 1975 in the wake of the Arab oil embargo, is opposed by companies such as Hess Corp., Marathon Oil Corp. and ConocoPhillips Co., who stand to make more money selling their oil in overseas markets.
Supporters of keeping it in place include refiners such as Alon USA, Monroe Energy LLC, PBF Energy and Philadelphia Energy Solutions.
“The information we have thus far is inconclusive to how lifting the ban on oil exports may impact consumers— especially those in the Pacific Northwest, who experience some of the highest gasoline prices in the nation,” Sen. Maria Cantwell (D-Wash.), the Senate Energy Committee's top Democrat said in a statement.
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Barrasso Revives Push For Faster Exports
Jun 10, 2015 | E&E Daily News
By Hannah Northey
Sen. John Barrasso (R-Wyo.) yesterday took another shot at trying to speed up federal approvals of liquefied natural gas exports by means of the defense authorization bill, arguing that U.S. domestic gas should be used as a foreign policy tool to counter Russian aggression.
Barrasso floated an amendment to the National Defense Authorization Act (NDAA) for fiscal 2016 that would speed up federal decisions on LNG exports to countries that don't have a free-trade agreement with the United States.
Barrasso reiterated his argument that Russian President Vladimir Putin has bullied and coerced large swaths of Eastern Europe and NATO allies by shutting off gas supplies to energy-hungry countries.
Putin is also funding activists in Europe who are opposed to hydraulic fracturing to slow steps in countries like Ukraine toward developing domestic gas and loosening Russia's grip, Barrasso said.
The senator went on to push his amendment, which would require the secretary of Energy to approve or disapprove an LNG export application within 45 days of the Federal Energy Regulatory Commission's completing an environmental review. The amendment mirrors a bill, S. 33, the "LNG Permitting Certainty and Transparency Act," that the senator introduced in January with bipartisan backing.
"Our NATO allies have publicly called on Congress to help them access America's natural gas," Barrasso said. "And we can do that by adopting my amendment, No. 1582."
The Obama administration has signaled in the past that it doesn't see a need for such language, but it won't necessarily stand in opposition.
Chris Smith, DOE's assistant secretary for fossil energy, told members of the Senate Energy and Natural Resources Committee in January that Barrasso's bill is unnecessary because the process is already moving fast enough. But he also said the legislation is workable and that DOE would comply should it become law (Greenwire, Jan. 29).
Still, it's unclear which, if any, of the NDAA amendments will receive a vote on the Senate floor.
Senate Armed Services Chairman John McCain (R-Ariz.) last week estimated that between 100 and 200 amendments would be filed and that action on the defense measure would be finished by the end of this week.
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Yes, Humans Really Are Causing Earthquakes — But Not How You Think
Jun 9, 2015 | The Washington Post
By Chelsea Harvey
Lately, life has become a little more unpredictable in the central United States. The region has seen a significant increase in earthquakes over the past six years — some of them capable of causing some real damage — when before there was very little seismic activity in the area.
Scientists pretty much agree that the earthquakes are being caused by human activity in the area. But there’s some confusion among the public about exactly what activities are causing the rumbles, with the major misconception being that hydraulic fracturing, or “fracking,” is the main culprit. Now a new paper, published Tuesday in the journal Seismological Research Letters, sets the record straight on what’s actually causing the ground to shake out there and what we can do about it going forward.
Between 1973 and 2008, the central United States saw an average of 24 earthquakes with a magnitude of 3.0 or higher each year — a number that rose to an annual average of 193 between 2009 and 2014, claims the new paper. According to authors Justin Rubinstein of the U.S. Geological Survey (USGS) and Alireza Babaie Mahani of the Geological Survey of Canada, injecting fluids into the earth — a technique used in several industrial processes — is causing all the earthquakes by increasing fluid pressure in the ground and causing faults to slip. But while fracking is one activity that involves fluid injection, it’s not the main cause of the quakes. It turns out that wastewater disposal, which injects unusable water into the ground to get rid of it, is the major culprit.
Wastewater injection is a process often used to get rid of the contaminated water that comes up as a byproduct of oil and gas extraction. And there’s some confusion about how exactly it’s produced, according to the authors. A second major misconception they address is the idea that all wastewater is produced from the fracking process — but this isn’t the case at all. In fact, any type of oil or gas extraction is likely to produce wastewater. That’s because the ground is full of briny water that is often already trapped in the same pores that contain oil and gas. It tends to come up during the extraction process, whether fracking is used to get it or not. In some parts of the central United States, fracking does produce a large amount of the wastewater being disposed of. But in other areas, such as Oklahoma, fracking accounts for hardly any of the wastewater produced.
Of course, fracking and certain other processes, such as enhanced oil recovery, also inject fluids into the earth, but they cause significantly fewer quakes. That’s because wastewater disposal injects much larger volumes of fluid into the ground for much longer periods of time. In fact, wastewater disposal wells can operate for years, while fracking typically goes on for just a few days.
So why the sudden increase in human-induced earthquakes now? Simply put, there’s just more wastewater injection going on, the authors write. This is at least partly thanks to some new production techniques being used in the area, says William Ellsworth, a geophysicist at the USGS Earthquake Science Center. (Ellsworth has also co-authored several papers on the topic of induced seismicity in the central United States, including a paper published this month in the journal The Leading Edge.)
The primary method that’s been introduced in recent years is known as dewatering, he says, a process that involves drilling into rock formations not previously identified as oil reservoirs and pumping out the oil inside. Huge amounts of saltwater usually come out with the oil — anywhere from 15 to 50 barrels of water per barrel of oil, according to Ellsworth.
Figuring out how much of a threat these induced earthquakes pose, or “hazard modeling,” is one obvious concern. “One of the big challenges is understanding how strong the earthquakes might be and where they are likely to occur,” says Ellsworth. The USGS already produces a long-term hazard model for natural earthquakes, which includes risks over a 50-year period. But the next step will be to produce a hazard model for induced earthquakes, which Ellsworth says will include be a much shorter forecast, perhaps of a year. He says the USGS hopes to put out such a report by the end of the year.
While it may not help in long-term decision making, like writing building codes, the model could help local citizens prepare for the amount of seismic activity they’re likely to experience and may aid policymakers in making decisions about repairs or updates to older buildings and transportation systems, Ellsworth says.
Scientists are also hopeful that strategies can be developed to diminish the earthquakes themselves. “Fortunately, some authors have suggested that there is hope for mitigating the likelihood of damaging earthquakes through detailed seismic monitoring, variations of injection rates and pressures in response to ongoing seismicity, and a clear management plan,” write authors Rubinstein and Mahani.
The authors suggest that more information is needed regarding three different types of data in order to be able to mitigate induced earthquakes. The first is more seismic data, which requires sensitive instruments. In some cases, fault lines (which cause earthquakes) are completely unknown to scientists until an earthquake occurs. Additionally, better resources are needed to collect high-quality data on earthquakes in real time, says Ellsworth.
“Over much of the area where these earthquakes are currently occurring, we are really suffering from inadequate scientific resources,” Ellsworth says. “In particular, many of these areas do not have seismic stations located anywhere or too few to provide accurate information.”
The other types of data needed, according to the paper’s authors, are more geologic data about faults and the stresses that are placed on them, as well as more industrial data on injection rates and pressures. A better understanding of this kind of information could help industrial workers alter injection rates and pressures as needed and potentially stop earthquakes before they become damaging.
Bringing these issues to the public’s attention is obviously in the best interest of public safety. But according to Ellsworth, it’s also relevant to anyone with an interest in the way the energy industry is conducted in the United States.
“I think that the public has a big stake in what’s being done in terms of new ways of developing oil and gas reserves in the country. I think people want to see it done safely and responsibly,” Ellsworth says. “It’s in everyone’s interest to understand the scientific basis of earthquakes.”
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What’s Missing From Moniz’s New Energy Deal
Jun 9, 2015 | Politico - The Agenda
By Michael Grunwald
This week Energy Secretary Ernest Moniz announced a modest deal with the electric utility industry, pledging to work together to promote plug-in electric vehicles. The deal included a few minor pledges from the Obama administration as well as the utility-backed Edison Electric Institute to invest in research and charging facilities and outreach, but it was mostly a way to signal that both sides share a commitment to moving beyond oil-driven transportation.
Well, why shouldn’t they? Electric utilities like electric vehicles because they like selling electric power. The administration likes electric vehicles because it likes cutting carbon emissions and oil imports. If there was anything surprising about the deal, it was the skimpiness; the utilities only pledged to spend 10 percent of their annual fleet budgets on electric vehicles, and to bring just 800 new plug-ins into service. For the sake of comparison, Americans have already purchased well over 300,000 plug-ins since 2009 — a lot less than the 1 million President Barack Obama promised, but a lot more than the zero on the road before he took office — and very few of the buyers were in the electricity business.
It’s nice that utilities support the plug-in revolution, and the announcement provided a Kumbaya opening moment for EEI’s annual conference in New Orleans. But if you’re serious about cleaning up the way Americans use energy, it’s worth noting that many utilities are still resisting another Obama-era revolution: rooftop solar.
Like electric vehicles, solar power was virtually non-existent in America before 2009, but it has enjoyed even more spectacular growth; plug-ins are still less than 1 percent of the U.S. automotive fleet, while solar is on track to generate more than 1 percent of U.S. electricity this year, and it’s been almost doubling every year. (This week it emerged that solar represented 51 percent of new U.S. generating capacity in the first quarter, its best residential quarter ever.) But while electric vehicles are a business opportunity for most utilities, solar rooftops can be a threat. When you put a plug-in car in your garage, you buy more juice; when you install solar panels on your roof, you buy less. You become a kind of mini-power plant, competing directly with your utility.
It’s not quite right to say that solar rooftops are the new cell phones, freeing customers from the electric grid just as they were freed from landlines. But there’s no question that power companies are worried about the competition from their customers; EEI warned in a 2013 report that “distributed” solar is a disruptive technology with the potential to blow up the traditional utility business model. While the costs of electric-vehicle batteries have dropped by more than 50 percent in five years, the costs of solar panels have dropped by more than 80 percent.
In response, many utilities and their friends in state government have fought to limit the rise of rooftop solar — by preventing fast-growing solar-leasing firms like Solar City, SunRun and Sungevity from doing business in their states, or limiting the “net metering” that helps solar customers sell power back to the grid, or assessing exorbitant fees on grid-connected solar homes. In sunny states like Florida and Arizona, utilities are building their own low-cost solar generation plants while conspiring with politicians to stop homeowners from going solar.
This is unfortunate, because utilities don’t just sell power, they manage the electric grid for their customers — and rooftop solar can help them do a better job. Every megawatt that homeowners can generate themselves is a megawatt that utilities don’t need to generate from a dirty coal plant. Rooftop solar is especially helpful during the peak afternoon hours when customers in sunny areas blast their air conditioners. And the combination of rooftop solar and electric vehicles has the potential to be even more transformative, changing residences into mini-utilities, storing excess power for the grid at night and selling power to the grid in the daytime, helping central utilities balance supply and demand, dramatically reducing the need for round-the-clock “baseload” power. The combination of solar and energy storage can serve a similar function, and it was not a coincidence that Tesla Motors CEO Elon Musk, who is rolling out storage units for the home and the grid, was a featured speaker at the EEI conference.
This is the future unfolding for the grid: More clean-but-intermittent wind and solar power, less reliable-but-dirty coal power, more storage for renewable electricity, less power demand from more efficient homes and appliances, more power demand from electric vehicles, more homemade solar power generation. Utilities ought to be able to make money in that future, but they won’t be able to make it exactly the same way they’re making it now. As Secretary Moniz told me in a recent interview: “Business models are going to have to adjust to new realities.”
The administration has backed the solar revolution with stimulus grants and loans for solar research, development and (infamously in the case of Solyndra) manufacturing, plus an ongoing Sunshot Initiative to make solar cost-competitive with fossil fuels. The administration has also backed the plug-in revolution with stimulus grants and loans to Tesla and other advanced battery and vehicle manufacturers, plus an ongoing EV Everywhere program to spread charging stations around the country.
But there’s an obvious deal to cut with the utility industry, and it’s not the deal announced yesterday. The government should offer to do even more to promote the plug-in revolution; Obama’s commitment that half of all federal vehicle purchases will be plug-ins should just be a start. In exchange for the extra business, utilities should stop trying to block the solar revolution. That’s a more complex deal to cut. It would be less Kumbaya. But if utilities are really excited about “the economic, environmental, and security benefits of transportation electrification,” as EEI President Tom Kuhn said, they shouldn’t try to stop Americans from powering that transportation with zero-emission, low-cost power they can generate at home.
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Appropriators Propose Modest Changes To Interior Funding, With Strings Attached
Jun 10, 2015 | BNA Daily Environment Report
By Alan Kovski
Interior Department funding for fiscal year 2016 would be raised moderately for the Bureau of Land Management and the Office of Surface Mining while being reduced slightly for the U.S. Fish and Wildlife Service under a draft bill released June 9 by the House Appropriations Committee.
The spending bill for Interior, Environment and Related Agencies would extend for another year a prohibition on writing or issuing a final rule involving listing of the greater sage grouse for Endangered Species Act protections. The bird is found in 11 Western states, and lawmakers fear protections could disrupt almost any activity in sagebrush habitat.
The bill also would modify protections for the northern long-eared bat, found in 37 states and listed as threatened under the Endangered Species Act. Unintentional harm would be allowed for any activity conducted in accordance with habitat conservation measures specified by the Fish and Wildlife Service when it listed the species as threatened in April.
Another provision in the bill would block changes to the “stream buffer zone” rule governing waste rock disposal in or near streams. Separate legislation has been offered to create a three-year barrier to such changes (64 DEN A-5, 4/3/15).
The bill will be marked up June 10 by the House Appropriations Subcommittee on Interior, Environment and Related Agencies. If the subcommittee follows standard practice, amendment proposals will be saved for either the full committee or House floor action.
BLM Funds Partly for Grouse
The bill would provide $1.1 billion for the BLM, an increase of $30 million above the 2015 enacted level. It would provide BLM with $60 million—an increase of $45 million—for conservation plans for the greater sage grouse.
The BLM and the U.S. Forest Service released a set of land management plans in late May with protections for the grouse and its habitat in hopes of avoiding a need for listing the bird as threatened or endangered (103 DEN A-3, 5/29/15).
The Office of Surface Mining would receive $180 million, a $30 million increase over the 2015 enacted level. The increase would create a $30 million program to accelerate the reclamation of abandoned mine lands and, in the process, boost community redevelopment and economic growth.
The Fish and Wildlife Service would receive $1.4 billion, only $8 million below the 2015 enacted level.
Funding for the U.S. Geological Survey would remain level at $1.05 billion. The National Park Service would receive $2.7 billion, an increase of $53 million.
Forest Service Gets Fire Funds
The bill includes $5 billion for the Forest Service, $13 million below the 2015 enacted level. More than half of this funding is targeted to wildland fire prevention and suppression.
The bill also includes a provision that would prohibit the Forest Service or the BLM from issuing new closures of public lands to hunting and recreational shooting, except in the case of public safety.
Access for recreation, like access for energy development, mining and timber harvesting, has become a sore point between the Obama administration and Congress. That tension parallels a difference of opinion that puts environmental activists at odds with industry groups, some recreational groups and many local populations.
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Challenges to Proposed Clean Power Plan Are Premature, D.C. Circuit Says in Dismissal
Jun 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Federal appellate judges dismissed challenges to the Environmental Protection Agency's proposed carbon dioxide emissions limits for power plants June 9, saying they are premature, but one judge left open the possibility of similar lawsuits in the future (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, 6/9/15; West Virginia v. EPA, D.C. Cir., No. 14-1146, 6/9/15).
The U.S. Court of Appeals for the District of Columbia Circuit in a June 9 opinion said it would not take the unprecedented step of blocking the EPA Clean Power Plan before the final rule has been issued. Instead, states and industry groups opposed to the rule may file their lawsuits after the final rule is released and may petition the court to stay implementation of the rule at that time.
“In justiciable cases, this court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules,” Judge Brett Kavanaugh wrote in the majority opinion joined by Judge Thomas Griffith.
Judge Karen LeCraft Henderson wrote a separate concurring opinion that agreed a writ to block the EPA proposed Clean Power Plan is not warranted, but she took a broader view of the court's authority under the All Writs Act to review some federal agency proposals.
Murray Energy Corp. and several coal-dependent states had petitioned the court to issue an extraordinary writ that would block the EPA from promulgating the final Clean Power Plan. The company had argued the EPA is barred by the Clean Air Act from regulating carbon dioxide emissions from power plants under Section 111(d) of the act because they are already subject to hazardous air pollutant standards under Section 112. The D.C. Circuit never addressed that argument in its decision, instead finding that the lawsuit was premature because the EPA has not yet issued the final rule, which is expected in August.
“It's the least-surprising decision of the year,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA June 9.
The court's decision cites a similar opinion issued in 2012 dismissing challenges to the EPA proposed carbon dioxide new source performance standards for new power plants (Las Brisas Energy Center LLC v. EPA (D.C. Cir. 2012) ).
Costs Don't Justify Review
The court rejected states' and industries' arguments that they were incurring costs to prepare to comply with the upcoming EPA rule as sufficient justification to review the Clean Power Plan while still only a proposal.
“We recognize that prudent organizations and individuals may alter their behavior (and thereby incur costs) based on what they think is likely to come in the form of new regulations,” the court said. “But that reality has never been a justification for allowing courts to review proposed agency rules.”
The EPA's proposed Clean Power Plan (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state. State regulators would develop their own plans on how best to achieve those emissions goals. The rule is currently at the White House Office of Management and Budget for review.
The judges heard arguments in the lawsuit April 16 (74 DEN A-1, 4/17/15).
Additional Lawsuits Coming
The court's decision only delays legal battles over the Clean Power Plan, which forms the centerpiece of President Barack Obama's plan to reduce U.S. greenhouse gas emissions heading into international climate negotiations in Paris later this year. Once the final rule is issued, it inevitably will be challenged in court.
“We stand by the arguments we made to the court, and believe that the litigation has further revealed the weakness of EPA's arguments on the merits,” West Virginia Attorney General Patrick Morrisey, who led the states challenging the proposal, said in a June 9 statement.
Murray Energy also pledged to renew legal challenges once the EPA issues the final rule.
“While we were disappointed by the Court's decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail,” the company said in a statement.
Henderson Defends Authority
Although Henderson agreed that a writ to block the Clean Power Plan is not justified given the final rule will be issued shortly, in her concurring opinion she defended the court's authority to use the All Writs Act to review proposed rules should the need arise.
Henderson said nothing in the Clean Air Act limits the court's jurisdiction to issue writs under the All Writs Act.
“Without an explicit command that jurisdiction under the All Writs Act had been withdrawn, we found it implausible that the court's equitable powers had been restricted,” she said.
While defending the court's authority, Henderson said the challenges to the Clean Power Plan did not warrant exercising that authority given the final rule will be out soon.
“In sum, although we have the authority to issue a writ of prohibition, I would decline to do so because the passage of time has rendered the issuance all but academic,” she said.
Although Henderson said the All Writs Act is inapplicable to Clean Power Plan challenges, some attorneys said she has left the door open to similar challenges to proposals in the future.
“Good lawyers will still look at that as an invitation in appropriate circumstances to file petitions for extraordinary writs,” Thomas Lorenzen, a partner at Dorsey & Whitney LLP, told Bloomberg BNA.inor-latin;}
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House Proposes Deep EPA Spending Cuts; Water Infrastructure Funds Hit Hard
Jun 10, 2015 | BNA Daily Environment Report
By David Schultz
A $7.4 billion fiscal year 2016 spending package introduced by the House Appropriations Committee would provide the Environmental Protection Agency 13 percent less funding than President Barack Obama had requested and almost 9 percent less than the EPA's current funding levels.
The committee's proposed spending bill, released June 9, also denies the president's request for an increased staffing ceiling at the EPA. Instead, the bill would reduce the maximum number of full-time positions at the EPA for the fifth consecutive fiscal year.
The Appropriations Subcommittee on Interior, Environment and Related Agencies is scheduled to mark up the spending bill June 10.
Water Infrastructure
One of the areas hit hardest by the proposed cuts is the agency's state revolving fund programs for wastewater and drinking water.
The $2 billion program, which regularly makes up more than a quarter of the EPA's total budget, provides low-interest loans to states and municipalities for large water infrastructure projects. It is comprised of two separate funds, one for drinking water projects and one for wastewater projects.
In his budget request for the 2016 fiscal year, Obama requested a nearly 23 percent cut for the wastewater fund from its fiscal year 2015 levels. At congressional hearings on the budget request, EPA Administrator Gina McCarthy said this cut was designed to make room for a 30.8 percent increase in the drinking water fund (22 DEN B-1, 2/3/15).
The House granted neither of these requests, however.
The bill would provide $1.02 billion for the clean water SRF, which amounts to a 29.7 percent cut from current funding levels, and $757 million for the drinking water SRF, a reduction of 16.5 percent.
The House's proposed funding levels for the revolving funds program in fiscal year 2016 are identical to funding levels that were in a fiscal year 2015 bill approved last year by the House Appropriations Committee. This bill never came up for a vote on the House floor.
Cuts ‘Draconian.'
Groups representing water quality agencies reacted to the House bill with a mixture of frustration and resignation.
Julia Anastasio, head of the Association of Clean Water Administrators, which represents state and local water pollution control officials, called the cuts to the revolving funds program “draconian.”
She said she suspects House members are proposing these reductions not because they dislike the program, but rather as a way to express their animosity toward the EPA.
“In the end, they're not hurting the EPA, they're in fact hurting states and local communities,” Anastasio told Bloomberg BNA. “This is pass-through money.”
Patricia Sinicropi, legislative director for the National Association of Clean Water Agencies, said upgrades to sewage and stormwater systems will still go forward if Congress makes big cuts to this program, but they will cost substantially more.
“People will look for money elsewhere, [but] it will be higher cost money,” she told Bloomberg BNA.
Dan Hartnett, legislative affairs director at the Association of Metropolitan Water Agencies, said the House regularly proposes deep cuts to the revolving funds program only to have the Senate restore those cuts later in the appropriations process.
“The wild card is this is the first year we're going through this process with Republicans in control in the Senate,” he told Bloomberg BNA.
At a March 4 hearing on the EPA's budget at the Senate Environment and Public Works Committee, both Republicans and Democrats indicated they thought any cuts to the revolving funds program would be a mistake (43 DEN A-7, 3/5/15).
The Senate has yet to introduce an appropriations bill funding the EPA for the 2016 fiscal year.
Policy Riders
In addition to containing funding for the EPA, the House bill also includes several provisions known as policy riders, that would prevent the EPA from spending funds on specific programs.
For example, the bill would prohibit the EPA from spending any funds during the 2016 fiscal year to:
• require Clean Air Act permits for greenhouse gas emissions from livestock operations,
• implement its Clean Power Plan or its Waters of the United States rule,
• work toward a final rule redefining the types of fill material mining companies can discharge into waterways,
• regulate the lead content in ammunition or fishing tackle.
Many of these riders have appeared in early iterations of previous appropriations spending bills, only to be excised at the 11th hour during final negotiations (243 DEN A-10, 12/18/14).
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House Interior-EPA Spending Bill Would Promote Biomass
Jun 9, 2015 | E&E News PM
By Amanda Peterka
House appropriators' draft fiscal 2016 spending bill for the Interior Department and U.S. EPA includes a boost for biomass energy.
A provision buried in the draft released this morning would require EPA to base its biomass policies and actions on the "principle" that forest biomass is a carbon-neutral form of energy. The draft legislation cites an analysis done by the Agriculture Department finding that U.S. forest carbon stocks "are stable or increasing on a national scale."
The policy provision would also stipulate that EPA actions should not pre-empt state decisions on how biomass should be used as a renewable energy source.
The language on Page 73 of the 134-page draft legislation makes similar arguments to those of the forestry and paper sector in favor of biomass energy being a key part of federal and state renewable energy goals.
It comes as EPA is considering whether biomass energy generation should be considered a zero-emission substitute for fossil fuels under its Clean Power Plan for reducing greenhouse gas emissions from power plants. Last November, EPA acting air chief Janet McCabe sent a memo advising air regulators that the agency is likely to recognize biomass combustion as a way to comply with the plan.
Biomass energy continues to be controversial, though, with environmental groups saying it could accelerate climate change by creating a "carbon debt."
Environmental groups have already objected to several policy riders in the draft bill, which the House Appropriations Subcommittee on Interior, Environment and Related Agencies is scheduled to mark up tomorrow. The bill would also put a halt to the Obama administration's efforts to regulate greenhouse gas emissions from new and existing power plants.
In all, the bill would give EPA and the Interior Department $30.17 billion in funding for fiscal 2016, or a decrease of $246 million below current spending levels and $3 billion below President Obama's request for Interior and EPA (Greenwire, June 9).
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Jewell, Enviros Slam 'Dreadful' Policy Riders In Interior-EPA Bill
Jun 10, 2015 | E&E Daily News
By Amanda Peterka, Phil Taylor and Manuel Quiñones
A top Obama administration official joined environmentalists in blasting numerous policy riders contained in the House fiscal 2016 spending plan for the Interior Department and U.S. EPA unveiled yesterday.
Interior Secretary Sally Jewell said she is especially concerned about a provision in the bill that would bar the Fish and Wildlife Service from preparing a potential Endangered Species Act listing rule for sage grouse.
"They're dreadful, and they should be eliminated," Jewell told E&E Daily about the policy riders after a wildfire briefing yesterday at the Rocky Mountain Arsenal National Wildlife Refuge outside Denver.
Republican House appropriators unveiled the draft bill about 24 hours before a markup scheduled for this morning in the Appropriations Subcommittee on Interior, Environment and Related Agencies.
In all, the bill would give EPA and the Interior Department $30.17 billion in funding for fiscal 2016, a decrease of $246 million below current spending levels and $3 billion below President Obama's request for Interior and EPA (Greenwire, June 9).
The 134-page draft bill includes more than 20 policy riders, including provisions that would bar EPA's efforts to regulate greenhouse gas emissions from new and existing power plants and amend which bodies of water get automatic Clean Water Act protection.
Along with the sage grouse provision, the bill would legislatively delist wolves in the Great Lakes and Wyoming and would limit the government's ability to regulate ivory and the use of lead in ammunition and fishing tackle.
Jewell said she has spoken with lawmakers on Capitol Hill about the bill's policy riders. She called sage grouse riders a "huge mistake" and warned that postponing habitat protections would leave the sagebrush ecosystem in worse shape in the future.
A separate rider attached to the House's defense authorization bill would roll back, at the request of a governor, federal sage grouse protection plans that do not conform with state habitat plans.
Jewell yesterday also called the spending bill's overall funding level -- set by Republicans to conform to sequester spending caps -- unworkable.
"We've got to get together and do some kind of a budget compromise," she said. "I'm hoping that at least with a markup, we're in a partial regular order process that will cause the sides to get together and maybe work on a two-year budget deal."
In a letter obtained by E&E Daily, more than 20 environmental organizations also yesterday said the draft bill's funding levels and policy proposals would undermine the administration's efforts to address climate change, clean up the air and water, and save endangered species.
"We are alarmed that this bill has once again become a target for anti-environmental and superfluous policy provisions, which have no place in the appropriations process," wrote the groups, which included the Natural Resources Defense Council, the Sierra Club, the Wilderness Society and Friends of the Earth.
The environmental groups charged that the policy provisions "have no place" in the annual appropriations process.
"Congress has had an opportunity to return the appropriations process to regular order this year, but burdening legislation with unnecessary and harmful policy provisions will only derail an already difficult process," they wrote. "Critical funding legislation should not be held hostage by unrelated and damaging riders."
In a statement yesterday, Interior, EPA and Related Agencies Appropriations Subcommittee Chairman Ken Calvert (R-Calif.) defended the policy riders, saying they represent "meaningful steps to shield our economy and defend American jobs from the executive overreach of EPA regulators."
As in previous years, appropriators will likely save most of their debate over the draft bill and amendments for a markup in the full House Appropriations Committee, which could take place later this week. Senate outlook
Senate appropriators have yet to unveil their proposed fiscal 2016 spending plan for Interior and EPA, but are planning to hold a markup next week, Senate Interior, Environment and Related Agencies Appropriations Subcommittee Chairwoman Lisa Murkowski (R-Alaska) yesterday told reporters.
Murkowski did not give any details on what her bill would contain and skirted a question on whether it would target EPA's Clean Power Plan. She also did not comment on specifics in the House proposal.
"I can't speak to the direction the House may go," she told reporters. "I think we traditionally have seen they've been a little more aggressive with riders than you've seen on the Senate side."
Murkowski previously suggested she would target the Obama administration's controversial Waters of the U.S. rule in the Interior-EPA bill in exchange for Sen. John Hoeven (R-N.D.) agreeing to drop an amendment targeting the rule during committee consideration of the energy and water appropriations bill (Greenwire, May 21).
Earthjustice water issues advocate Chris Espinosa said greens are nervous but also vigilant and hopeful. He said the Senate tends to be "a little more pragmatic" with policy riders but cited the promise by Senate Majority Leader Mitch McConnell (R-Ky.) to use the appropriations process to roll back the administration's agenda.
"We know the attacks are coming," Espinosa said.
Other potential riders include a provision to prevent the Interior Department from finalizing its forthcoming stream protection rule to protect waterways from coal mining and blocking EPA from crafting new bonding requirements for hardrock mines.
Greg Conrad, executive director of the Interstate Mining Compact Commission, said uncertainty prevails for now, but he thinks there's a greater chance the Senate will "seriously consider" policy riders now that the chamber is in GOP hands.
Sen. Dan Coats (R-Ind.), who has introduced stand-alone legislation related to the stream protection rule, said yesterday, "The real question is does it ever have a chance of getting through the White House."
A measure that may prevail with bipartisan support is a proposal in the House spending bill to provide $30 million in abandoned coal mine cleanup grants to Appalachian states reeling from the mining downturn.
The measure harks back to a White House proposal to speed up the release of $1 billion from the abandoned coal mine reclamation fund. But the smaller House version may be more palatable to lawmakers because it doesn't involve amending the Surface Mining Control and Reclamation Act.
Asked whether the same proposal would end up in the Senate bill, Conrad said, "I know the Senate is thinking about this." He added that in conversations with aides, "They did not offer what they were thinking or doing."
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EPA Praises Ruling That Tossed Challenges To Carbon Rule
Jun 9, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA says it’s "pleased" that the D.C. Circuit Court of Appeals has dismissed early legal challenges to its proposed carbon rule for existing power plants as premature.
"EPA addressed the legal foundation for our actions when we issued the proposed rule in June and we will address all comments we’ve received on this issue in the final Clean Power Plan,” the agency said in a statement. “We appreciate the high level of interest in taking action on climate change demonstrated by the millions of comments received."
The administration is expected to issue its final carbon rules this summer, possibly in August. Rules covering existing, new and modified power plants are under review at the White House Office of Management and Budget. -
Court Rejects Challenge To Obama Climate Rule
Jun 9, 2015 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court on Tuesday threw out the first judicial challenge to the Obama administration’s landmark climate rule for power plants.
The Court of Appeals for the District of Columbia Circuit ruled that the energy companies and states that filed the lawsuit had jumped the gun, and the court cannot yet review a regulation that has only been proposed, but not made final.Though the decision was widely expected, it nonetheless hands the Environmental Protection Agency (EPA) its first major win in defending President Obama’s key executive action to fight climate change.
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule,” Judge Brett Kavanaugh wrote in the opinion on behalf of himself and Judge Thomas Griffith, both appointed by Republican presidents.
“But a proposed rule is just a proposal,” he continued.
“In justiciable cases, this Court has authority to review the legality of final agency rules. We do not have authority to review proposed agency rules.”
Judge Karen Henderson agreed with the ruling, although she wrote a separate opinion arguing that it is within the court’s jurisdiction to review the rule if it wanted to.
While attorneys and the judges spent considerable time discussing the merits of the case during the oral arguments in April, the court did not mention the merits at all in its ruling. But those arguments can be litigated after the regulation is made final this summer.
Murray Energy Corp. led a coalition of energy companies in challenging the rule, arguing that the Clean Air Act does not allow the regulation of carbon dioxide from power plants since other emissions from those plants are already regulated.
West Virginia led 15 states that also challenged the rule, and the cases were combined.
The EPA and its allies cheered with the ruling.
“EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature,” EPA spokeswoman Liz Purchia said in a statement.
Purchia went on to defend the merits of the regulation, which the agency contends aligns with the Clean Air Act and will prevail against further court challenges.
The Environmental Defense Fund, which joined the case to defend the EPA, applauded the decision against “deeply flawed” challenges.
“Today’s decision is a big win for clean and healthy air, and an important victory for a fair and democratic rulemaking process,” Tomás Carbonell, an attorney for the group, said in a statement. “These lawsuits were an attempt to do an end-run around the public participation process.
Murray Energy said the fight is far from over, and vowed to sue again after the regulation is made final.
“The Obama EPA has promulgated a clearly illegal rule in its so-called Clean Power Plan,” spokesman Gary Broadbent said in a statement. “While we were disappointed by the Court’s decision, we will fully litigate the rule once it is formally finalized by the Obama EPA and we will prevail.”
West Virginia Attorney General Patrick Morrisey also said he knew it would be tough to fight a proposed rule.
“While we are obviously disappointed with the court’s ruling today, we still think we have a compelling case that the rule is unlawful,” Morrisey said in a statement.
“When we filed this case last summer, we knew there would be procedural challenges, but given the clearly illegal nature of the rule and the real harm occurring in West Virginia and throughout the country, we believed it was necessary to take all available action to stop this rule as soon as possible. We believe that the litigation has further revealed the weakness of EPA’s arguments on the merits.”
Morrisey did not specifically pledge to sue when the rule is made final, but he said he will “continue to take every available step” to protect West Virginia from the regulation.
The EPA plans to make the regulation final in August, at which point more court challenges are expected.
As proposed last June, the rule would cut the power sector’s carbon emissions 30 percent by 2030.
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Obama Administration Readies Big Push on Climate Change
Jun 9, 2015 | The Wall Street Journal
By Amy Harder
The Obama administration is planning a series of actions this summer to rein in greenhouse-gas emissions from wide swaths of the economy, including trucks, airplanes and power plants, kicking into high gear an ambitious climate agenda that the president sees as key to his legacy.
The Environmental Protection Agency is expected to announce as soon as Wednesday plans to regulate carbon emissions from airlines, and soon after that, draft rules to cut carbon emissions from big trucks, according to people familiar with the proposals. In the coming weeks, the EPA is also expected to unveil rules aimed at reducing emissions of methane—a potent greenhouse gas—from oil and natural-gas operations.
And in August, the agency will complete a suite of three regulations lowering carbon from the nation’s power plants—the centerpiece of President Barack Obama’s climate-change agenda.
The proposals represent the biggest climate push by the administration since 2009, when the House passed a national cap-and-trade system proposed by the White House aimed at reducing carbon emissions.
Anticipating the rules, some of which have been telegraphed in advance, opponents of Mr. Obama’s regulatory efforts are moving to block them. Senate Majority Leader Mitch McConnell (R., Ky.), is urging governors across the country to defy the EPA by not submitting plans to comply with its rule cutting power-plant emissions.
Nearly all Republicans and some Democrats representing states dependent on fossil fuels say the Obama administration is going beyond the boundary of the law and usurping the role of Congress by imposing regulations that amount to a national energy tax driven by ideological considerations.
“The Administration seems determined to double down on the type of deeply regressive regulatory policy we’ve already seen it try to impose on lower-and-middle-class families in every state,” Mr. McConnell said in a statement. “These Obama administration regulations share several things in common with the upcoming directives: they seem motivated more by ideology than science, and they’re likely to negatively affect the economy and hurt both the cost and reliability of energy for hard-working American families and small-business owners.”
Supporters of Mr. Obama’s efforts say the regulatory push has the backing of both science and the force of law. They cite a 2007 Supreme Court decision that compelled the EPA to regulate greenhouse-gas emissions if the agency found they endanger the public’s health and welfare, which the EPA did in 2009 with a scientific finding shortly after Mr. Obama became president.
They also argue that the moves became necessary after the Senate in 2010 rejected the administration proposal to cap the amount of carbon emitted in the U.S. Mr. Obama in 2013 issued an executive order directing the EPA to issue the regulations, which it did a year later, in June 2014.
“It’s a demonstration of his commitment. He tried one path, it wasn’t successful, so he took another path that was available,” said Carol Browner, Mr. Obama’s top climate adviser for the first two years of his administration and EPA administrator for President Bill Clinton. “He’s following the law Congress passed in 1990,” added Ms. Browner, referring to the 1990 Clean Air Act Amendments.
The actions expected as soon as this week include a scientific finding concluding that carbon emissions from aircraft contribute to climate change, a move that legally prompts the requirement to regulate based on the 2007 ruling by the Supreme Court, and new carbon-emission standards for big trucks and trailers, such as a typical 18-wheeler semi-truck.
Two factors are driving the timing of the push this summer. The administration wants to complete it ahead of December’s United Nations summit on climate change, where world leaders will meet in Paris to decide whether to agree on a global accord to cut carbon emissions. The EPA’s regulatory agenda represents nearly everything Mr. Obama is set to offer world leaders on what the U.S. is doing to address climate change.
Secondly, once the EPA rules on emissions by power plants become final, states will have a year to submit plans while lawsuits challenging the rule are expected to be heard by the courts. The administration wants to make sure that its officials can oversee as much of these two developments as possible instead of relying on the next president, especially if it is one of the GOP White House candidates who have expressed opposition to the EPA’s climate agenda altogether.
“When you’re regulating as much of the economy as he [Mr. Obama] is attempting to regulate by executive order, that’s clearly an overreach,” said Tim Phillips, president of Americans for Prosperity, a political advocacy group backed by the wealthy Koch brothers.
People on either side of the fight hotly contest to what degree—or whether at all—the regulations will create new costs on the U.S. economy.
EPA Administrator Gina McCarthy has averaged about two speeches a week on climate change since the agency first proposed the carbon rule for power plants a little more than a year ago, according to EPA. Many of the speeches, which include addresses in front of oil and natural gas industry executives around the world, focus on what Ms. McCarthy describes as the positive economic impact of new regulation.
“Strategies to reduce carbon can double as investments that return value for your operations as they evolve over time,” Ms. McCarthy told an audience of energy executives at a conference in Houston in late April about the agency’s proposed rule cutting carbon from the utility sector.
Other experts maintain the economic upshots of regulations aren't as clear-cut.
“There is no question that regulations are shifting supply and demand curves, so they are increasing costs,” said Susan Dudley, who was a top regulatory official in the White House during the George W. Bush administration. “Some of those costs are encouraging cleaner alternatives; sometimes they’re shifting things to other countries. Fully understanding the costs and benefits is really challenging.”
Corrections & Amplifications:
An earlier version of this article incorrectly stated that Congress rejected cap-and-trade for carbon emissions in 2009. The House passed the measure in 2009 but the Senate rejected it in 2010. (June 9, 2015) -
Court Rejects EPA Haze Plan For Mont.
Jun 10, 2015 | E&E News PM
By Jeremy P. Jacobs
A federal appeals court today struck down U.S. EPA's air pollution plan to reduce regional haze in Montana.
The federal plan was challenged at the San Francisco-based 9th U.S. Circuit Court of Appeals by environmental groups as too weak and by the owner of the largest emitter in the state as too stringent.
At issue are PPL Montana's coal-burning units at the Colstrip power plant, as well as its hydroelectric facility.
EPA required PPL Montana to implement emission controls, particularly on two of Colstrip's four units to reduce emissions of nitrogen oxide and sulphur dioxide.
But environmentalists have for three years said EPA should have required more expensive and effective selective catalytic reduction (SCR) controls, instead of selective noncatalytic reduction technologies (Greenwire, March 22, 2012).
PPL Montana contended that EPA failed to adequately explain its cost-benefit analysis for the controls.
In a complicated ruling today, the 9th Circuit agreed with both sides on some points. In particular, it said EPA did not lay out its reasoning and remanded the rule back to the agency for further consideration.
"The rule offers essentially no reasoning behind EPA's selection" of noncatalytic reduction measures instead, Judge Diarmuid O'Scannlain wrote.
The judge added that EPA failed to address comments from PPL Montana regarding the visibility models it used to determine the severity of the emissions reductions.
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Clean Jobs Legislation Maintains Momentum in Illinois
Jun 9, 2015 | Environmental Defense Fund
By Dick Munson
At the start of the 2015 Illinois legislative session, a diverse coalition came together to introduce and support the Illinois Clean Jobs bill – legislation which would strengthen Illinois’ energy efficiency policies, as well as update and extend the state’s Renewable Portfolio Standard (RPS). The bill would also create a market-based strategy to meet new federal carbon regulations to limit carbon emissions from existing power plants, otherwise known as the Clean Power Plan (CPP).
So now that the regular legislative session has ended, where does the Clean Jobs bill stand?
A victory for the little guy
Initially, the Clean Jobs bill was far from the energy legislation spotlight. Two deep-pocketed companies also introduced bills. Exelon proposed a bailout for three of its uneconomic nuclear reactors. And Commonwealth Edison (ComEd) wanted to restructure its rates to ensure a profit because efficiency and clean energy had reduced the demand for power.
Most political observers felt Exelon and ComEd – which employ teams of lobbyists and enjoy substantial political clout – would quickly obtain what they asked for. Yet neither went anywhere, and it was actually the Clean Jobs legislation that obtained more co-sponsors than the Exelon and ComEd bills – combined.
Despite delay, support remains high
None of the energy bills passed because several factors encouraged legislators to postpone consideration of energy legislation until the veto session in the fall. Most prominent, Illinois is currently facing a $3 billion budget deficit, and budget discussions have taken the wind (pardon the pun) out of Clean Jobs and other energy bills – for now. Some politicians also wanted to wait until after the release of the final CPP late this summer.
Yet we remain optimistic. The Clean Jobs bill would provide thousands of renewable energy jobs, lower electricity bills through increased energy efficiency, and use money saved to invest in initiatives like workforce development, low-income bill assistance, and research and development of new clean energy technology. It presents an economic opportunity that would benefit the state, people’s pocketbooks, and the environment.
For this reason, the bill has reached across the aisle and seen support from a wide array of groups, including faith-based, business, environmental, and labor organizations. Leaders from all of these areas even formed the official Illinois Clean Jobs Coalition to endorse the legislation – of which Environmental Defense Fund is a proud member. 26 sponsors in the Illinois Senate and 58 sponsors in Illinois' House are behind the bill, demonstrating the bipartisan appeal. Mayor Rahm Emanuel is on board and even Chicago high school students have banded together to voice their desire to see the measure pass.
Despite the lag in timing, the intense display of support “puts us way ahead of where we have been in these discussions in the past," said Rep. Elaine Nekritz (D-Northbrook). She created the bill along with Sen. Don Harmon (D-Oak Park).
The Clean Power Plan and Illinois
The Environmental Protection Agency (EPA) intends to release the final CPP regulations in August. The plan, as proposed, allows states maximum flexibility to craft an implementation plan that will take advantage of state-specific resources.
Thanks to previous moves to advance clean energy in the state, Illinois is already more than 75 percent of the way to meeting the 2020 benchmarks. The Clean Jobs bill directs the Illinois EPA to develop a market-based approach to meeting the requirements, ensuring the state can easily achieve the remaining reductions.
Thanks to the thousands of EDF members who have asked their legislators to co-sponsor and advance the Clean Jobs legislation. We have momentum on our side for Illinois to be a leader in energy efficiency and clean energy, and to craft a CPP implementation plan most beneficial to our state.
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Court Gives Obama a Climate Change Win
Jun 9, 2015 | The New York Times
By Coral Davenport
A federal court on Tuesday dismissed a lawsuit by the nation’s largest coal companies and 14 coal-producing states that sought to block one of President Obama’s signature climate change policies.
The lawsuit, Murray Energy v. E.P.A., challenged the Environmental Protection Agency’s proposed rule to reduce planet-warming greenhouse gas emissions from power plants. If enacted, the rule could shutter hundreds of such plants, freeze construction of future plants and slow demand for coal production in the United States.
The lawsuit was the first in a wave of expected legal challenges to the E.P.A. climate change rules. Legal experts say they expect some of those challenges to make it to the Supreme Court.
Among the lawyers arguing on behalf of the coal companies was Laurence H. Tribe, a renowned Harvard scholar of constitutional law and Mr. Obama’s former law school mentor.
The E.P.A. put forth the power plants proposal last June, and after taking public comments and revising the plan, the agency is scheduled to reveal it in final form in August. The judges in the United States Court of Appeals for the District of Columbia Circuit rejected the challenge, saying it was unprecedented for a court to review a rule that had been introduced only in the form of a draft.
All three circuit court judges agreed that the challenge was premature.
“Petitioners are champing at the bit to challenge E.P.A.’s anticipated rule restricting carbon dioxide emissions from existing power plants,” Judge Brett Kavanaugh wrote in the opinion. “But E.P.A. has not yet issued a final rule. It has issued only a proposed rule. Petitioners nonetheless ask the court to jump into the fray now. They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule.”
He concluded, “We deny the petitions for review and the petition for a writ of prohibition because the complained-of agency action is not final.”
Liz Purchia, a spokeswoman for the agency, wrote in a statement, “E.P.A. is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature.”
Environmentalists also cheered the decision. “The first legal challenge to the Clean Power Plan failed today, and others the polluters will trot out should fail as well,” said David Doniger, the head of the climate and clean air program for the Natural Resources Defense Council, an advocacy group.
But litigants are already preparing to file a new suit once the rule is put into effect.
“We are obviously disappointed with the court’s ruling today, but we still think we have a compelling case that the rule is unlawful,” said Patrick Morrisey, the attorney general of West Virginia, who led oral arguments against the rule. “As the court recognized, the rule will be final very soon, and we look forward to continuing to press the issue. We will continue to take every available step to protect our citizens and the State of West Virginia from this unlawful power grab by Washington bureaucrats.”
Legal experts on both sides of the issue say the final regulation is expected to stand as a novel and even audacious legal interpretation of the 1970 Clean Air Act. Under standard Clean Air Act regulations, the E.P.A. assigns emissions limits to polluting entities such as power plants and dictates how companies will meet the limits — for example, by installing pollution-reduction equipment, like chemical scrubbers, in power plant smokestacks.The agency has taken a unique approach with the climate change rule, however. It is expected to assign each state a different target number for reducing its levels of greenhouse gas emissions, though states will be able to create their own plans for doing so. Those plans may range far outside the power plant fence with states complying, for example, by increasing their production of renewable energy from wind and solar, by installing energy-efficiency technology, or even by enacting a carbon tax.
The E.P.A. contends that the broad approach will give states the flexibility to customize an emissions reduction plan that best suits their energy profile. But that broad interpretation of the Clean Air Act could also create legal vulnerabilities in the plan.“Although the administration dodged a bullet, it can’t really claim the case as a big victory,” wrote Jeffrey R. Holmstead, a top E.P.A. official in the George W. Bush administration who now lobbies for electric utilities with the firm Bracewell & Giuliani. “The court did not say anything about the legal merits of the Clean Power Plan. All those issues are simply put off to another day."
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DOJ Urges 8th Circuit To Reverse Ruling Allowing Review Of CWA Orders
Jun 9, 2015 | BNA Daily Environment Report
By David LaRoss
The Department of Justice (DOJ) is urging the U.S. Court of Appeals for the 8th Circuit to reverse its ruling that allowed pre-enforcement judicial review of EPA and other agencies' determinations that waterbodies are jurisdictional under the Clean Water Act (CWA), a decision that created a split with other appellate courts' rulings.
If the court grants the request and undoes its March 23 decision then it could eliminate the split and moot a pending industry request for the Supreme Court to take up the issue of when CWA orders are reviewable by courts. Other courts have said that they cannot review the findings prior to them being used in enforcement actions.
In its June 9 petition for rehearing by the three-judge panel that issued the ruling, as well as rehearing en banc by the full appellate court, DOJ renews its arguments that the jurisdictional determinations (JDs) cannot by challenged in court before any enforcement or permitting action, and that the 8th Circuit erred.
DOJ says that the case is important enough to warrant rehearing. “[T]he panel acknowledged that it created a conflict among the circuits; that alone demonstrates that this case presents a question of exceptional importance and should be reheard by the panel or this Court sitting en banc,” the petition says.
The 8th Circuit's unanimous ruling in Hawkes Co., et al. v. U.S. Army Corps of Engineers held JDs to be judicially reviewable “final actions” because they carry practical consequences for recipients.
The case centered on peat mining company Hawkes' plan to mine a 530-acre parcel of land for peat, which it suspended after the Army Corps of Engineers issued an order saying that the land included wetlands subject to the CWA.
Hawkes then sued to challenge that JD, claiming the waters were not jurisdictional. A federal district court ruled that it lacked authority to review the order prior to any enforcement or permitting by the federal government, and Hawkes then appealed that to the 8th Circuit, resulting in the ruling allowing review of JDs.
“[H]ere, the Revised JD requires appellants either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties,” Circuit Judge James B. Loken wrote for fellow panel members Judges Myron H. Bright and Jane Louise Kelly.
But DOJ counters in its new brief that the consequences Loken describes come from the terms of the CWA, rather than the JD.
“The statute prohibits the discharge of fill material into the waters of the United States whether or not the Corps has issued a jurisdictional determination,” the petition says. And referring to Loken's list of Hawkes' options for proceeding, it says “The statute -- not the jurisdictional determination -- requires that of Hawkes.”
Pre-Enforcement Review
The petition also seeks to distinguish JDs from the compliance orders at issue in the high court's unanimous 2013 decision in Sackett v. EPA. That case opened the agency's CWA compliance orders, as well as some other pre-enforcement actions, to legal challenges in part because the justices found such orders carry financial penalties for noncompliance above and beyond the consequences for violations of the water law.
The Hawkes decision found that JDs are analagous to the orders in Sackett because they can trigger enhanced CWA penalties for “knowing” violations of the act. But DOJ argues in its petition that the fact that regulators could possibly consider a JD evidence of deliberate lawbreaking does not trigger court review.
“[T]he Act does not assign any weight or function to a jurisdictional determination; in fact, the Act does not mention jurisdictional determinations at all. And any number of non-final agency warnings or opinion letters -- or even a private consultant’s report -- could have the same potential effect,” it says.
It adds that “[b]ecause the jurisdictional determination does not contain any directive that could be violated, the CWA does not provide for additional penalties for violating the CWA after receiving a jurisdictional determination. Before and after a jurisdictional determination is issued, the landowner therefore faces the same legal regime, the same potential obligations, and the same legal exposure.”
DOJ has only 8 days left to file its response to a recycling company's petition seeking high court review of a separate JD case, Kent Recycling Services v. U.S. Army Corps of Engineers.
Kent is seeking review of a 5th Circuit ruling that found JDs are not judicially reviewable. The justices rejected a petition for certiorari in the case before Hawkes was decided, but the firm is asking them to reconsider based on the newly created circuit split.
In a May 18 order the justices gave DOJ 30 days to formally respond to Kent's petition, setting a deadline of June 17 for the brief -- which represents the administration's first chance to outline its case on whether the divided courts warrant the justices taking up the question. But if the 8th Circuit agrees to take up Hawkes again it would vacate the panel's opinion, voiding the split -- at least until the court delivers a new ruling.
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In Late-Night Squeaker, 2016 Spending Bill Barely Clears House
Jun 10, 2015 | E&E Daily News
By Sean Reilly
The House narrowly passed a fiscal 2016 transportation spending bill late last night that would impose stiff cuts on Amtrak, public transportation and the widely used "TIGER" grant program but still doesn't go far enough to satisfy some conservatives.
The 216-210 margin of approval came as 31 Republicans joined 179 Democrats in voting "no." Pushing the bill to passage shortly before midnight were 213 Republicans and three Democrats.
The level of GOP opposition, while relatively modest, was much higher than on passage of any of the other four 2016 spending bills that have so far cleared the House.
For some Republican dissenters, the proposed reductions may have hit too close to home. The bill, for example, would slash federal funding for the Washington, D.C.-area Metro transit system by one-third, a step that may have cost it the support of Rep. Barbara Comstock, who represents a swing Virginia district served by the system. Last week, Comstock had joined eight area Democrats in expressing disappointment with the cut.
But Heritage Action for America, an influential right-wing organization, yesterday urged opposition to the bill, saying it would keep funding for Amtrak and other programs that it says deserve elimination. Those voting "no" last night also included Reps. Louis Gohmert (R-Texas), Thomas Massie (R-Ky.) and other members of the House GOP's arch-conservative wing.
The $55.3 billion measure, which would also fund the Department of Housing and Urban Development, sets aside $17.2 billion in discretionary transportation spending. In a statement after the vote, House Appropriations Chairman Hal Rogers (R-Ky.) said that the benefits of its programs are felt "far and wide."
"We face tight budget restrictions, yet this bill provides adequate investments in critical infrastructure and much-relied-upon housing programs," Rogers said.
The White House, however, has already warned of a veto in the improbable event that the legislation passes Congress in its current form. Senate Democrats intend to bottle up all of next year's appropriations bills until Republicans agree to end the governmentwide spending restrictions -- often labeled as the "sequester" -- created under the 2011 Budget Control Act, two members said yesterday.
"We are not going to move forward on them," Sen. Charles Schumer (D-N.Y.) said at an afternoon news conference. Joining him was Sen. Barbara Mikulski (D-Md.), ranking member of the Senate Appropriations Committee.
"We believe we need to have a new budget agreement," Mikulski said. "We need to have more money; we need to end sequester."
But Senate Majority Leader Mitch McConnell (R-Ky.) dismissed Democratic calls for a budget summit, saying the chamber would stick with its existing spending plan. While there has been "a lot of big talk about stopping bills," McConnell told reporters yesterday, "we'll see whether they really want to do that."
The standoff is already reviving memories of the 2013 partial government shutdown that was triggered by a spending impasse. The Senate Transportation, Housing and Urban Development and Related Agencies Appropriations Subcommittee has not yet marked up its version of next year's legislation.
For transportation programs, the House bill approved last night would impose about a 5 percent overall cut in comparison with this year's threshold. Amtrak's federal subsidies would be reduced by 18 percent to approximately $1.1 billion; the budget for TIGER (short for "Transportation Investment Generating Economic Recovery") grants would fall 80 percent, from $500 million to $100 million; and funding for major public transportation projects would take a 9 percent trim to $1.9 billion. The measure contains modest increases for highway and pipeline safety programs.
In floor debate that spanned three days, House members agreed only to a handful of transportation-related tweaks -- most notably an amendment by Rep. Charlie Dent (R-Pa.) to give Amtrak $9 million for installation of "inward-facing" video cameras in the cabs of locomotives on its Northeast Corridor line.
The cameras are intended to monitor engineers while they're driving trains along the Boston-to-Washington, D.C. route; Amtrak opted to add them after the May 12 train derailment in Philadelphia that killed eight passengers and injured more than 200 others. Although federal safety investigators have not determined what led to the wreck, they've already concluded that the train was traveling at more than 100 mph -- or roughly twice the speed limit -- just before jumping the tracks.
On a voice vote, lawmakers approved an amendment by Rep. Jeff Denham (R-Calif.) to keep California from tapping previously allotted federal money for a planned bullet train linking San Francisco and Los Angeles. Denham, who chairs a House railroads subpanel, said the money would be better spent on the automated rail safety system known as positive train control.
With the backing of 60 Republicans, the House also endorsed by a 241-184 vote an amendment by Rep. Scott Peters (D-Calif.) that aims to reinforce the Obama administration's policy barring federal contractors from discriminating against employees on the basis of sexual orientation. Rep. Dan Lipinski (D-Ill.) voted "present" on the amendment.
But attempts by Rep. Mo Brooks (R-Ala.) to strip Amtrak of all federal support went down to defeat, as did amendments offered by House Rules Chairman Pete Sessions (R-Texas) to eliminate the use of taxpayer dollars on long-distance train routes that are particularly big money-losers. By a 163-259 vote, the House last night also turned back a proposal by Rep. Marsha Blackburn (R-Tenn.) to pare the bill's across-the-board spending levels by another 1 percent.
The bulk of federal highway and transit funding, however, is set not by appropriators but through a separate authorization measure. Congress has so far been unable to approve a long-term bill to replace the authorization act that originally expired last September. The latest two-month extension runs out at the end of July; without additional money in its replacement, Transportation Secretary Anthony Foxx has said he will have to begin rationing reimbursements to states this summer.
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