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Inside Cal/EPA
An exclusive weekly report on environmental legislation, regulation and litigation
from the publishers of Inside EPA
Vol. 26, No. 1 — January 9, 2015
ARB Crafting Plan To Meet Brown’s Ambitious Call To Halve Oil Use By 2030
The state air board is working on a comprehensive plan for the state to reduce petroleum use 50 percent by 2030, a
goal announced this week by Gov. Jerry Brown (D) during his inaugural address to state lawmakers, according to
officials.
The board released a one-page “fact sheet” on the forthcoming plan, which provides a glimpse into possible actions
and scenarios for reaching the target. The fact sheet is available on InsideEPA.com. See page 2 for details.
Some of the elements of the California Air Resources Board’s (ARB) plan will reflect provisions contained in the
board’s updated greenhouse gas (GHG) regulatory “scoping plan,” according to a board spokesman, such as improving
vehicle efficiency while reducing vehicle miles traveled through land-use planning changes, reducing energy use, and
continued on page 4
WRCB To Weigh Settlement Giving Plant More Time To Meet OTC Policy
The state water board is expected to consider at a public hearing in the coming months a legal settlement involving
board staff, power companies and environmentalists that will allow a major southern California power plant three more
years to comply with the board’s once-through-cooling (OTC) policy, following years of negotiations to resolve a
lawsuit filed by several energy companies in 2010.
The Water Resources Control Board’s OTC policy and the litigation challenging it are being closely followed by
numerous stakeholders because the policy is seen as the first in the nation phasing out the technology and may have
substantial impacts on electricity reliability if some coastal power plants are forced to shut down rather than spend
millions of dollars to replace the systems. The policy has taken on even more importance since the permanent closure in
continued on page 6
Brown Avoids Debate On Post-2020 GHG Goals But Sets New 2030 Targets
California Gov. Jerry Brown (D) is skirting the emerging debate over the state’s long-term greenhouse gas (GHG)
emission reductions targets and timetables but in his inaugural address for his fourth and final term laid out three new
measures for cutting GHG emissions by 2030, which will help achieve any future goals.
In his Jan. 5 address, Brown laid out three goals for 2030: increasing the state’s supply of renewable power to 50
percent by 2030; reducing petroleum use in cars and trucks by up to 50 percent; and doubling the efficiency of existing
buildings while making heating fuels cleaner.
In addition, Brown promised to continue the state’s ambitious climate mitigation programs, saying California must
continue to “show the way” for other states and countries to help cut carbon emissions by 2050 to avoid catastrophic
continued on page 8
ARB Eases 2016-2019 LCFS Compliance Curve, But Keeps 2020 Mandate
State air board officials are proposing to further relax year-by-year compliance with the low-carbon fuel standard
(LCFS) from 2016 to 2019, compared with a draft proposal floated in October, while maintaining the original
regulation’s requirement for a 10 percent reduction in the carbon intensity of gasoline and diesel by the end of 2020
based on a 2010 baseline.
The proposal, contained in a formal LCFS regulatory amendment package released Dec. 30 by the California Air
Resources Board (ARB) and scheduled to be considered for approval next month, is drawing praise by biofuel advocates because it maintains the 2020 mandate even though it eases 2016-19 compliance requirements.
But oil industry sources say they remain convinced that, despite ARB’s proposed relaxation of the compliance
continued on next page
INSIDE
PESTICIDES: Advocates Urge DPR To Ban Chlorpyrifos, Seeing Flaws In EPA Risk Study ........ 3
AIR QUALITY: Truckers Cite PM Filter Fires In Push For ARB To Suspend Diesel Air Rule ........ 5
OUTLOOK 2015: Leading State Pack, California Debating Second Gen GHG Measures ...........7
CONGRESS: Despite GOP Gains, Preemption Remains Major Hurdle For TSCA Reform ........ 12
curve, the 10 percent cut by 2020 remains unachievable and that the board will be forced in the coming years to ease that
mandate as well.
Meanwhile, corn ethanol industry representatives are maintaining their criticism of ARB’s revision of a controversial
indirect land-use change (ILUC) factor used to revise the estimated greenhouse gas (GHG) emissions that are created by
the production of the fuel under the regulation.
While ARB is proposing to lower the factor, the corn ethanol industry charges it should be reduced by almost double
and remains convinced that the ILUC figure represents an unfair “penalty” against the fuel under the LCFS.
California’s LCFS is a cornerstone of its strategy to reduce GHG emissions from the transportation sector. State
regulators have recommended that lawmakers consider extending the LCFS to 2030 and requiring an additional 10 to 15
percent reduction in carbon intensity.
Fuel providers can comply with the LCFS by blending cleaner fuels, such as ethanol and biodiesel, into gasoline and
diesel and by purchasing credits generated by utilities and other companies that provide natural gas, electricity or hydrogen for transportation purposes.
The program is also considered a model for other states and regions. California, Oregon, Washington and British
Columbia in 2013 signed a joint climate “action plan” that commits policymakers in each state to implement and maintain
LCFS programs in each jurisdiction.
The California regulation has also been upheld by the Supreme Court, which last year declined to review a federal
appellate ruling that held the program did not violate the Constitution’s Commerce Clause. But a state court held in 2013
that the program violated the California Environmental Quality Act and required ARB to “readopt” the regulation in
compliance with state environmental and administrative procedure laws.
As a result, ARB froze the required 1 percent carbon intensity cut in gasoline and diesel through 2015. Under the
original rule, fuel providers were required to reduce intensity 2.5 percent by 2015.
In late October 2014, ARB staff proposed three revised 2016-2020 “compliance curve” options, including a
“more gradual path,” “straight line,” and original “base case.” Under the more gradual option, fuel providers would be
required to reach a 2.5 percent reduction by the end of 2016, 4 percent in 2017, 6 percent in 2018, and 8 percent in 2019.
This compares with the original base case of 3.5 percent in 2016, 5 percent in 2017, 6.5 percent in 2018 and 8 percent in
2019.
ARB staff had also floated a more stringent “straight line” approach requiring 2.8 percent in 2016, 4.6 percent in
2017, 6.4 percent in 2018 and 8.2 percent in 2019.
But in a Dec. 30 “initial statement of reasons” (ISOR) document for consideration at a Feb. 19 meeting, the board is
proposing to alter the 2016-2020 compliance curve under the program, proposing to further relax the “more gradual path”
by requiring: a 2 percent reduction by 2016; 3.5 percent by 2017; 5 percent by 2018; and 7.5 percent by 2019. The ISOR
is available on InsideEPA.com. See below for details.
A source with the Western States Petroleum Association (WSPA) says this week that the proposed relaxation of the
LCFS 2016-2020 compliance path may be a “recognition by [ARB] staff of what WSPA has been clearly stating for some
time — that there will be just not enough volumes of low carbon fuels and vehicles in the next several years.”
And WSPA maintains its belief that the regulation’s 10 percent cut in carbon intensity by 2020 is not achievable.
“Unfortunately, it appears [ARB is] just delaying the inevitable need to significantly alter the compliance curve since they
have retained the 2020 10 percent reduction amount, which means they have shifted the major carbon reductions to right
Background Documents For This Issue
Subscribers to InsideEPA.com have access to hundreds of documents, as well as a searchable archive of back issues of
Inside Cal/EPA. The following are some of the documents available from this issue of Inside Cal/EPA. For a full list of documents,
go to the latest issue of Inside Cal/EPA on InsideEPA.com. For more information about InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Inside Cal/EPA:
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California Governor Proposes Three New Measures To Cut GHGs By 2030
California Maintains LCFS 2020 Mandate
DOI Commits To Include California In Reviewing Offshore Fracking Permits
California Outlines Plan To Achieve 50% Oil Cut By 2030
Truckers Charge California Diesel Rule Requires Dangerous PM Filters
Biofuel Advocates’ Report Shows Drop In Production Outlook
Settlement Allows California Plant More Time To Meet OTC Policy
Not an online subscriber? Now you can still have access to all the background documents referenced in this issue through
our new pay-per-view Environmental NewsStand. Go to www.EnvironmentalNewsStand.com to find out more.
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INSIDE Cal/EPA - www.InsideEPA.com - January 9, 2015
before 2020, and WSPA remains convinced this is an infeasible sustainable reduction amount.”
A low-carbon biofuel industry source says advocates remain very supportive of the latest ARB proposal because it
maintains the original 10 percent carbon intensity cut by 2020, despite the relaxation of the 2016-19 compliance curve.
“And the slightly slower curve to reach that target provides us with some additional flexibility,” the source says.
Meanwhile, corn ethanol industry representatives are maintaining their opposition to ARB’s proposal to lower
the ILUC GHG emissions factor for the fuel under the LCFS, arguing it should be lowered by a much larger degree.
The ILUC figure represents impacts from land-use changes in other parts of the world to grow more corn or
other feedstock for biofuel production or food in the U.S. and other countries such as Brazil. The ILUC number is
added to the base direct GHG emissions from producing and transporting the fuels to calculate the overall carbon
intensity value.
The LCFS’ current ILUC factor for corn-ethanol is 30 grams of carbon dioxide (CO2)-equivalent emissions per
megajoule (g/MJ). ARB has for years been developing an update to the factor based on new data, assumptions and
complex modeling work. Some of the complex factors ARB uses to calculate the ILUC levels include “yield price
elasticity, cropland pasture elasticity and the elasticity of crop yields with respect to area expansion.”
ARB staff proposed in March 2014 that the assumed ILUC GHG level for corn-ethanol should be reduced to 23.2 g/MJ.
And in an updated draft revision unveiled Nov. 20, ARB proposed to further lower the ILUC for corn-ethanol to roughly
20 g/MJ (Inside Cal/EPA, Nov. 28).
In the Dec. 30 ISOR, ARB staff is proposing that the factor be set at 19.8 g/MJ.
But an ethanol industry source says this week that ARB failed to incorporate the most recent research data and
analysis on ILUC, which the industry believe justifies lowering the factor to roughly 6 or 7 g/MJ.
More broadly, the industry source says noncompliance with the LCFS in 2020 is very likely. “We still believe ARB is
being overly optimistic about the volumes of sugarcane ethanol imports, electric vehicles, biogas, and renewable diesel
that will be available for compliance in the next five years,” the source says. “If those fuels don’t materialize in the
volumes expected by ARB, and if ARB fails to correct its carbon intensity scoring of crop-based biofuels, compliance in
the 2018-2020 timeframe will be extremely challenging.”
Advocates Urge DPR To Ban Chlorpyrifos, Seeing Flaws In EPA Risk Study
California environmentalists are calling on the state pesticides department to expedite its ongoing assessment of
chlorpyrifos and ultimately ban the product, saying there are major public health risks from the substance far beyond the
risks to farm workers that U.S. EPA found in what advocates say is a flawed assessment of chlorpyrifos.
Chlorpyrifos is manufactured by Dow AgroSciences and is widely used on crops such as almonds, walnuts and
oranges. Environmentalists contend that the widely used insecticide poses risks of harm to children and other members of
the public when it drifts from farm fields onto neighboring homes, schools and playgrounds.
At the federal level, EPA in its Jan. 5 draft risk assessment of the chemical found some risks to workers who handle
the substance. However, EPA also said, “There were no additional risks from pesticide exposures in food or exposures to
bystanders and workers from airborne chlorpyrifos” — a conclusion that disappoints environmentalists who fear it signals
the agency is likely to reject their petition asking the agency to prohibit use of chlorpyrifos.
In California, the Department of Pesticide Regulation late last year proposed to designate chlorpyrifos as a “state
restricted material when used for production of an agricultural commodity,” which requires that applications of the
pesticide be made or supervised by a certified applicator and that the purchase, possession or use of the chemical requires
the property operator to obtain a permit from the county agricultural commissioner, in addition to other conditions.
But environmentalists say the department’s action is insufficient to protect the public. “DPR’s designation of
chlorpyrifos as a restricted use pesticide does very little to limit use or create protections for vulnerable communities,
especially children,” says a source with Pesticide Action Network North America (PANNA).
“While it’s good news that DPR finally acknowledges use of the hazardous pesticide deserves greater oversight, it’s
not nearly enough. After more than a decade, the department has delayed any meaningful action and should move swiftly
to ban the neurotoxic pesticide,” the source adds.
Dow AgroSciences had opposed DPR’s restricted use listing, fearing adverse impacts on the sale of California
agricultural commodities. Company officials argued last year that the department is moving too quickly without adequate
data, citing the fact that key risk assessment and other studies on chlorpyrifos are incomplete.
At the same time, DPR officials have been working for several years on a reevaluation of chlorpyrifos and are
considering additional mitigations. They plan to review the controversial new EPA assessment as they look to finalize
their own evaluation. “DPR scientists are currently reviewing EPA’s risk assessment document, which consists of approximately 1,000 pages,” a department spokeswoman says. “Once complete, the review will help us to determine if California
needs to take additional measures to address California needs and exposure scenarios, that further protect human health
and the environment.”
But, “given shortfalls of EPA’s new assessment, and its reliance on Dow’s flawed models, California officials should
INSIDE Cal/EPA - www.InsideEPA.com - January 9, 2015
3
move forward with an independent and robust assessment that prioritizes children’s health,” the PANNA source contends.
DPR’s reevaluation in part requires product registrants to identify processes that contribute to chlorpyrifos detection
in surface water and to identify mitigation strategies, according to a DPR presentation from last summer.
PANNA, the Natural Resources Defense Council and Earthjustice fault EPA’s human health risk assessment of
chlorpyrifos, which was required by legal actions taken against the agency by the groups.
The EPA assessment concludes that chlorpyrifos poses “some risks to workers who mix, load and apply chlorpyrifos
pesticide products,” according to a Jan. 5 EPA press release. “When used in large amounts, chlorpyrifos has the potential
to pose risks in limited geographic areas when drinking water from small watersheds. There were no additional risks from
pesticide exposures in food or exposures to bystanders and workers from airborne chlorpyrifos.”
Based on the results of the risk assessment, “additional restrictions may be necessary to ensure that workers who use
or work around areas treated with chlorpyrifos are protected and that drinking water sources are protected. The agency
will now begin work on measures to reduce these risks.”
The environmentalists charge that EPA’s new assessment “relies heavily on one model and scant studies from Dow,”
according to a Jan. 5 press release by the groups.
“We have gone to court because EPA has allowed children to be exposed to developmental impairments like reduced
IQ, autism, and attention deficit disorder,” said Earthjustice attorney Patti Goldman, according to the release. “EPA’s
assessment depends far too much on flawed studies from industry, and children are left in harm’s way.”
Though banned for home uses because of dangers to children, chlorpyrifos is still heavily used on fruit and nut
orchards, soybeans, and corn, with an estimated 5 million pounds applied in the U.S. annually, the groups say.
Margaret Reeves, Ph.D., senior scientist at PANNA, says in the release that there are “numerous independent, peerreviewed studies documenting risks to agricultural communities, but EPA and California officials have moved at a snail’s
pace, and have failed to protect children’s health.”
EPA says its assessment updates a June 2011 preliminary human health risk assessment based on new information
received, including public comments. EPA factored in exposures from multiple sources including from the exposures
from food and water, from inhaling the pesticide and through the skin. EPA considered all populations including infants,
children, and women of child-bearing age. EPA incorporated information from a 2012 assessment of spray drift exposure
and as well as new restrictions put into place to limit spray drift, according to the agency’s press release.
Industry Cites Current Reliance On Oil . . . begins on page one
strengthening the board’s low-carbon fuel standard (LCFS).
Halving of the state’s petroleum use over the next 15 years is necessary to enable the state to meet both its long-term
GHG-reduction targets, such as an 80 percent cut by 2050 compared with 1990 levels, as well as to achieve federal air
quality standards, ARB claims.
“In California, the production, refining, and use of petroleum accounts for almost half of GHG emissions, 80 percent
of smog-forming pollution, and over 95 percent of cancer-causing diesel particulate matter,” the fact sheet states.
ARB claims that existing policies will reduce petroleum use in the state by more than 20 percent by 2030. By
building on these policies, California can cut petroleum use from cars and trucks in half by 2030, according to the fact
sheet.
Under one scenario to achieve the 50 percent reduction by 2030, the state could reduce growth in vehicle-miles
traveled to 4 percent, increase on-road fuel efficiency of cars to 35 miles per gallon (mpg) and heavy-duty trucks to about
7 mpg, and at least double the use of alternative fuels such as biofuels, electricity, hydrogen, and renewable natural gas,
according to the fact sheet.
While ARB already has in place GHG vehicle tailpipe standards that require automakers to deliver cars that achieve
an average of 54.5 mpg by the 2025 model year, a second ARB spokesman clarifies that the 35-mpg figure referenced in
the scenario represents “‘real-world’ mileage, not the 54.5 mpg that considers mileage reductions for a range of elements
and a very specific test that does not replicate real world driving.”
ARB officials have already said in the scoping plan update that they intend to extend the LCFS to 2030 and
require an additional 10-15 percent reduction in the carbon intensity of gasoline and diesel. The current LCFS
requires fuel suppliers to reduce the carbon intensity of the fuels 10 percent by the end of 2020, based on a 2010
baseline.
The state should also continue providing “strong market support for zero emission vehicles and renewable fuel
production through carbon pricing and other incentives,” the paper says. Building high-speed rail will also aid the overall
effort.
ARB published the fact sheet on its website Jan. 5, the same day Brown gave his inaugural speech announcing the
goal of cutting petroleum use 50 percent by 2030 (see separate story, p1).
The first ARB spokesman says that the fact sheet “has to do with a document we’re working on,” and that its release
4
INSIDE Cal/EPA - www.InsideEPA.com - January 9, 2015
with the governor’s speech was “coincidental.”
Cathy Reheis-Boyd, president of the Western States Petroleum Association, says in a Jan. 5 written statement that
reducing petroleum use in California 50 percent by 2030 is “certainly an ambitious goal and one that will require a great
deal of involvement by all Californians,” especially given that state officials report that currently 96 percent of all
transportation fuel in the state is derived from petroleum.
Reheis-Boyd says she is looking forward to reviewing ARB’s plan “in greater detail and working with Gov. Brown
and the state Legislature on solutions that will sustain today’s energy and economic realities while protecting both our
environment and future energy needs.”
Truckers Cite PM Filter Fires In Push For ARB To Suspend Diesel Air Rule
Trucking companies are stepping up calls for the state air board to suspend requirements under its heavy-duty diesel
truck and bus regulation, claiming that a spat of engine fires has been caused by flawed or malfunctioning diesel particulate filters (DPFs) that are required in many cases to comply with the rule.
But California Air Resources Board (ARB) officials are rejecting the industry requests, asserting that the fires
being cited by the industry groups have for the most part been the result of faulty turbo diesel engines, according to
the industry.
Industry representatives were scheduled at press time to argue Jan. 9 in Glenn County Superior Court that the
regulation’s DPF requirements should be suspended because of the alleged safety threats and because ARB violated the
Administrative Procedure Act and the California Environmental Quality Act when it adopted the rules. The industry has
asked the court to issue a preliminary injunction to halt enforcement of the regulation.
The lawsuit specifically argues that ARB officials have withheld key information from board members and the public
about diesel particulate matter (PM) filter defects and design flaws, according to the Alliance for California Business,
which filed the lawsuit against the board last year. The group says its members include truck owners and operators across
the state.
ARB’s diesel truck and bus regulation, originally adopted in 2008 and also amended in 2011, requires truck owners
to generally upgrade their engines to newer model years and add PM filters in many cases. Older trucks must be retrofitted with filters or have their engines replaced with model-year 2007 or newer engines.
During the public comment portion of ARB’s Dec. 18 meeting, several trucking industry representatives called on
ARB members to take a more serious look at the PM filter safety issues, and ultimately suspend requirements under the
regulation for the installation of the equipment.
Bud Caldwell, representing the Alliance for California Business, said trucks with DPFs are “igniting all over the
state.” Caldwell said he warned ARB a year ago that DPFs were dangerous, extremely expensive and didn’t work.
“Today, I say they are extremely dangerous, unsafe and frequently don’t work.”
Hank De Carbonel, a member of the group as well as the Concrete Pumpers Alliance, said that the insurance industry
is now investigating “the cause of the rapidly increasing incidence of fires on these trucks with these devices.” He warned
ARB members during last month’s meeting that “something needs to be done before we have a fatality or fatalities.”
De Carbonel called on ARB to suspend the DPF requirements “until we really know what we’re talking about,”
adding that the problem is not isolated to retrofitted engines. “It’s [original equipment manufacturer] equipment as well,
across all brands.”
In a Dec. 15 letter to ARB member Sandra Berg that included multiple pictures of recent heavy-duty engine fires
purportedly caused by DPFs, Alliance for California Business members charge that ARB’s DPF verification process
“completely neglects the matter of consumer safety, adopting a purely reactive model. That is, there is no provision to test
for safety and mechanical reliability before giving the DPF device the ARB stamp of approval for sale and use in the state
of California.”
The industry organization claims that ARB officials have given “three wholly unacceptable and unverifiable responses to the concerns over DPF safety, including that the fires have been caused by random electrical and brake
problems; that user error and/or better maintenance can prevent the problem; that the problem is with the rest of the truck;
and that if there is a problem, manufacturer warranties will fix it, the letter states. The letter is available on
InsideEPA.com. See page 2 for details.
“The overwhelming reaction of ARB, as well as the DPF installers and manufacturers is to tell the truck owner that
the turbo failed first, at which point the DPF followed suit,” the group adds. “Contrary to the assumptions by ARB,
manufacturers and installers of the DPF devices are not going to prevent or take responsibility for the catastrophic
failures caused by the DPF.”
ARB members and staff did not comment on the allegations during the Dec. 18 meeting.
An ARB spokeswoman did not respond this week to requests for comment by press time.
Last year, an ARB spokeswoman said in response to the industry’s lawsuit challenging the regulation that the board
“disagrees with the allegations, but will not respond in detail as this is pending litigation.”
INSIDE Cal/EPA - www.InsideEPA.com - January 9, 2015
5
Pact Gives Plant 3 More Years To Meet OTC Policy . . . begins on page one
2013 of the San Onofre nuclear power plant in southern California.
OTC refers to power plant systems that use open intakes to pump water from an ocean, estuary or bay to cool
generators or turbines and then discharge the water after one cycle of cooling. The process — through impingement and
entrainment — kills many different types of aquatic life and imperils others, while degrading habitats, according to
regulators and environmentalists.
Currently, more than a dozen power plants in California use OTC. Under the board’s OTC policy adopted in 2010,
coastal power plants are required to phase out the technology at different times within roughly the next eight years.
In the OTC case filed in 2010 in Sacramento County Superior Court, GenOn Energy Inc., et al., v. WRCB, et al.,
attorneys for power plant operators — including GenOn Energy, Inc. and Dynegy Moss Landing, LLC — argued that the
OTC policy violates the federal Clean Water Act, California Environmental Quality Act (CEQA) and the state PorterCologne Water Quality Control Act.
The power companies contended WRCB’s CEQA review of the policy failed to analyze potential environmental
impacts from complying with the policy, and failed to comply with other procedural requirements. The board should have
conducted a site-specific cost-benefit analysis in determining “best technology available” under the federal Clean Water
Act, according to the lawsuit. In addition, WRCB violated the Clean Water Act as interpreted in a state Supreme Court
ruling on OTC in terms of how to analyze cost-effectiveness, the lawsuit alleged.
Environmental groups, including California CoastKeeper Alliance and Natural Resources Defense Council, intervened in the case to defend WRCB and its policy.
After two years of talks, a settlement to resolve the suit was filed with the court on Oct. 31, 2014, with the court signing in
November an order staying the litigation pending full settlement implementation, according to an attorney involved in the case.
Full settlement implementation includes a requirement that WRCB hold a public hearing to consider approving the pact.
According to the settlement, WRCB staff is proposing to extend the OTC compliance date for the Moss Landing
Power Plant to Dec. 31, 2020. The 2,500-megawatt (MW), natural gas-fired plant located near Monterey Bay and owned
and operated by Dynegy Moss Landing, LLC, was originally required to comply with the policy by the end of 2017. The
settlement is available on InsideEPA.com. See page 2 for details.
Under the OTC policy, power plants can come into compliance using two options, or tracks. “Track 1” requires
intake flow rates to be reduced to a level commensurate with that which can be attained by a closed-cycle wet cooling
system. The policy identifies reduction as a minimum 93 percent cut in intake flow rates for each unit at the plant,
compared with the unit’s design intake flow, the settlement explains.
Under “Track 2,” which can be pursued if a plant owner demonstrates that Track 1 is not feasible, two provisions
allow for monitoring to demonstrate that reductions in impingement, mortality and entrainment are at a comparable level
to the reductions required under Track 1, according to the document. Comparable level is defined as an achievement of at
least 90 percent of the reductions required under Track 1. As a result, Track 2 compliance can be achieved by an 83.7
percent or greater reduction in impingement, mortality and entrainment, the settlement says.
Dynegy plans to use Track 2 to show Moss Landing’s compliance with the OTC by the end of 2020, in part by using
prior flow reduction credits allowed by WRCB; using operational controls to further reduce flow; and installing technology controls, according to the settlement.
Representatives of several of the intervening environmental groups did not return requests to comment on the
settlement and extension of the Moss Landing Power Plant’s compliance deadline.
A WRCB spokesman did not return a request for comment by press time about when the board may schedule a public
hearing to consider the settlement.
The document also stipulates that Dynegy reserves the right to repower its recently shuttered, 650-MW Morro Bay
natural gas power plant, after the company in 2011 concluded that the facility would not be able to comply with the OTC
Track 1 requirements.
The company “permanently retired” the Morro Bay plant on Feb. 5, 2014, “well in advance of its Dec. 31, 2015,
final compliance date” under the policy, the settlement says. Nevertheless, Dynegy Morro Bay, LLC, “reserves the right
to repower Morro Bay with a technology that does not utilize once-through-cooling.”
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INSIDE Cal/EPA - www.InsideEPA.com - January 9, 2015
Outlook 2015
Leading State Pack, California Debating Second Generation GHG Measures
California is pressing ahead with a bold agenda for adopting second-generation greenhouse gas (GHG)-reduction
regulatory programs with a vision of cutting emissions 80 percent by 2050, a path few other states in the country have
even contemplated.
Among the many implications of its efforts, California is well positioned to meet U.S. EPA’s pending GHG regulation
for existing power plants, while many other states fear disastrous results and are calling on the agency to shelve or
weaken the rule.
California leaders insist their strategy will also ultimately yield monumental economic advantages spurred by a clean
energy economy, compared with states that continue to resist taking actions to set a price on carbon and implement
multiple regulatory programs to cut GHGs.
With the exception of several Pacific Northwest states that are trying to emulate some of the Golden State’s more
notable first-generation GHG regulations — and a handful of states in the Northeast operating a limited electricitygeneration GHG cap-and-trade program — California stands alone in constructing a multi-pronged climate change
regulatory strategy that officials continue to believe will provide a model for both state and federal government agencies.
“California policy examples are strong and serve as proof of concept to other states,” says one energy regulatory
policy consultant, citing its cap-and-trade program, renewable portfolio standard (RPS), aggressive energy efficiency
programs, renewables integration and interstate cooperation.
These are “all tools” for complying with EPA’s power plant GHG rule, the source adds.
The latest exhibits in California’s trailblazing master plan for reducing GHGs were revealed by Gov. Jerry Brown
(D) during his Jan. 5 inaugural address to state lawmakers. Brown called for the state to ensure that by 2030, 50 percent
of its electricity generation would come from renewable resources; that petroleum use in cars and trucks be cut by up to
50 percent; and that energy efficiency in buildings be doubled.
California must continue to “show the way” for other states and countries to help cut carbon emissions by 2050 to
avoid catastrophic climate change impacts, Brown said. California has the most far-reaching environmental laws of any state
and the most integrated policy to deal with climate change of any political jurisdiction in the Western Hemisphere, he boasted.
Less clear is how California will reach the 50 percent renewables by 2030 target for electricity generation. While
many have assumed that Brown implied that the state will simply ratchet up its current RPS, which requires 33 percent
renewables by 2020, sources have said in the past that the administration may pursue a novel “low-carbon electricity
standard” as a replacement for the current RPS.
Such a measure would set an overall electricity-sector GHG-reduction target for 2030 and require state grid operators
to prioritize energy efficiency, demand response and energy storage technologies to help stabilize and modernize
California’s electricity grid, sources have said.
This strategy would provide additional options for utilities to comply apart from purchasing more solar and wind
energy, sources have said. New options could include carbon capture and sequestration technologies, which could be
added to natural gas-fired plants and other fossil fuel-powered industrial facilities to slash carbon dioxide (CO2) emissions. Brown has also established a goal of installing 12,000 megawatts of distributed generation resources by 2020.
Long-Term Strategies
While the governor provided few details about how the state could achieve the new goals, California Air Resources
Board (ARB) officials have already laid out extensive proposals in their GHG regulatory “scoping plan,” which will be
updated this year with more clarity and potential new rules for the agriculture and water industry sectors.
For example, ARB plans to propose extending the state’s low-carbon fuel standard (LCFS) to 2030, requiring an
additional 10-15 percent reduction in the carbon intensity of gasoline and diesel fuel. The state’s current LCFS requires
fuel suppliers to reduce the carbon intensity of the fuels 10 percent by the end of 2020, using a 2010 baseline.
GHG cuts from fuel consumption are also expected from ARB’s bold inclusion Jan. 1 of gasoline and diesel fuel
under its GHG cap-and-trade program — a move strongly opposed by the oil industry for the past two years.
ARB is also in charge of California’s controversial GHG regulatory program that forces regional planning agencies
to make sweeping changes to their transportation and growth plans to reduce vehicle miles traveled (VMT). The board is
due this year to review whether 2020 and 2035 goals for each metropolitan area in the state should be tightened to reduce
more VMT.
The state is also scheduled to extend its GHG cap-and-trade program beyond 2020, according to the scoping plan,
though lawmakers are preparing to debate what future targets and timetables to set.
Some experts have said that EPA’s pending GHG regulation for existing power plants, which was proposed last June
and is expected to be finalized by this fall, provided a new strong driver for California’s long-term climate change
regulatory strategies. The new federal rule will likely make it easier for California to pursue its post-2020 GHG-reduction
targets in part because neighboring states will have to implement similar regulatory programs, which will help in several
ways including reducing emissions “leakage” from California to these states, sources have said. As a result, California is
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seen as gaining a competitive advantage over these states.
Moreover, California’s leadership could help chart a future regulatory path EPA can use as a model, much as it
helped provide the federal agency with GHG program “building blocks” that other states can employ to comply with the
new power plant rule.
EPA’s proposed existing source performance standards for electrical generating units set GHG-reduction requirements for each state to achieve by 2030, using a 2012 baseline. California officials have said that they believe their
current GHG regulations and programs — assuming their continued operation beyond 2020 — will be able to achieve the
emissions reductions required by 2030 under the EPA rule.
A university law school professor said last year that the EPA rule “is just what California would have wanted in terms
of both the flexibility for the state to reach its own GHG goals . . . but also, really importantly, in terms of ambitions for
other states.”
Environmentalists have said the Brown administration will over the next four years continue providing model GHGreduction programs for other states and the federal government, especially through clean energy programs such as the
RPS, energy efficiency mandates, demand-side management quotas and distributed generation targets, as well as through
the state’s economy-wide cap-and-trade program, which is linked to Quebec.
Future GHG Targets
ARB and the state’s Department of Finance also plan this year to develop a proposal for a 2030 GHG target, which is
expected to be debated by state lawmakers, who themselves have already introduced legislation calling for the establishment of 2030, 2040 and 2050 GHG-reduction targets.
The 2030 GHG target should put the state on a path to achieve an 80 percent reduction of GHGs by 2050, compared
with 1990 levels. Former California Gov. Arnold Schwarzenegger (R) signed an executive order in 2005 setting the 2050
goal. While the state is on track to meet AB 32’s requirement to reduce GHG emissions to 1990 levels by the end of
2020, ARB states in the 2014 scoping plan update report that between 2020 and 2050, emissions will have to decline at
more than twice the rate of that being achieved to meet the 2020 limit.
Officials also say in the report that California could achieve a 42 percent reduction below 2005 levels in 2030, which
is the level the United States pledged to reach as part of its support of the 2009 Copenhagen Accord. The commitment
translates to 35 percent below 1990 levels, according to the scoping plan.
If California realizes expected benefits of existing policy goals it could reduce emissions “by 2030 to levels squarely
in line with those needed in the developed world and to stay on track to reduce emissions to 80 percent below 1990 levels
by 2050,” the scoping plan states.
ARB and other administration officials will also be continuing efforts to achieve Brown’s 2012 goal that seeks to
have 1.5 million zero-emission vehicles on California roadways by 2025, in part via a mid-term review of the regulation
in 2016. — Curt Barry
Industry Seeks Cost Controls Under GHG Policies . . . begins on page one
climate change impacts. “We must also reduce the relentless release of methane, black carbon and other potent pollutants
across industries,” Brown told state lawmakers.
“And we must manage farm and rangelands, forests and wetlands so they can store carbon. All of this is a very tall
order. It means that we continue to transform our electrical grid, our transportation system and even our communities.”
Text of the speech is available on InsideEPA.com. See page 2 for details.
Brown said he envisions a “wide range of initiatives” to reach the goals, including more distributed power, expanded
rooftop solar, micro-grids, an energy imbalance market, battery storage, the full integration of information technology and
electrical distribution and millions of electric and low-carbon vehicles.
His remarks come as state lawmakers are preparing to debate legislation that would set long-term GHG reduction
targets beyond 2020, when the state’s existing authority under AB 32, the 2006 global warming solutions law, expires.
Lawmakers have already introduced measures that would set goals through 2050 or other target dates.
Likely to be one of the most controversial bills is SB 32, by Sen. Fran Pavley (D-Agoura Hills), who authored AB 32 when
she served in the Assembly. Her new bill would require the California Air Resources Board (ARB) to approve a GHG emissions
limit for 2050 that is 80 percent below 1990 levels, which must also include “short-lived” climate pollutants.
As introduced, the bill also authorizes ARB to approve interim GHG emission targets to be achieved by 2030 and 2040.
ARB Chairwoman Mary Nichols has said she prefers that lawmakers provide the board with generic authority to set
future targets and timetables.
‘Pragmatic Caution’
As the debate has begun, many industry groups are seeking to ensure that any new “second generation” climate
and energy programs emphasize “affordable” energy, “achievable” goals, accountability for regulators and other
similar approaches.
In his inaugural address, Brown appeared to acknowledge the industry concerns. “How we achieve these goals and at
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what pace will take great thought and imagination mixed with pragmatic caution. It will require enormous innovation,
research and investment. And we will need active collaboration at every stage with our scientists, engineers, entrepreneurs, businesses and officials at all levels,” he said.
Industry groups welcomed Brown’s note of caution, with California Manufacturers & Technology Association
President Dorothy Rothrock underscoring Brown’s remarks by saying “our efforts to inspire technologies to reduce
climate change emissions must do so without harming the vibrancy of our economy, so we must ensure that we control
costs for manufacturers and not further increase the already highest electricity rates of any industrial state.”
Despite his caution, Brown also touted the state’s significant achievements so far, noting that California has the most
far-reaching environmental laws of any state and the most integrated policy to deal with climate change of any political
jurisdiction in the Western Hemisphere.
Under laws the state has enacted, “we are on track to meet our 2020 goal of one-third of our electricity from renewable energy. We lead the nation in energy efficiency, cleaner cars and energy storage. Recently, both the SecretaryGeneral of the United Nations and the President of the World Bank made clear that properly pricing carbon is a key
strategy. California’s cap-and-trade system fashioned under AB 32 is doing just that and showing how the market itself
can generate the innovations we need. Beyond this, California is forging agreements with other states and nations so that
we do not stand alone in advancing these climate objectives.”
However, while the state’s efforts are impressive, they are “not enough,” Brown said. He cited the United Nations’
Intergovernmental Panel on Climate Change’s goal of limiting warming to 2 degrees Celsius by the year 2050 through
drastic reductions of GHGs. “If we have any chance at all of achieving that, California, as it does in many areas, must
show the way. We must demonstrate that reducing carbon is compatible with an abundant economy and human wellbeing. So far, we have been able to do that.”
He also noted that the state is well on its way to meeting its GHG-reduction target under AB 32 of 431 million tons
by 2020.
Environmentalists welcomed Brown’s new program announcements, especially the new 50-percent renewables goal.
“Weaning the state off dirty fossil fuels and embracing clean energy is the kind of immediate action we need to confront
the worst effects of climate change,” Earthjustice said in a statement.
California Seeks More DOI Assurance In Offshore Fracking Permit Reviews
California officials plan to seek more specificity and assurance from the Department of the Interior (DOI) about how
federal agencies will include the state in reviewing applications for offshore hydraulic fracturing permits, according to
sources, after DOI last month sent a brief letter committing to some level of cooperation.
The California Coastal Commission is seeking a much greater role in regulating offshore fracking and other oil and
gas well stimulation activities in federal waters, claiming that bureaus within DOI have essentially rubber-stamped such
activities in the past without alerting the commission for its input or ensuring that applicable laws are followed.
The commission’s efforts were triggered in early 2013 in part by the release of reports by environmental organizations that showed dozens of offshore fracking events in recent years were not known to California regulators and that
toxic substances have been discharged into the ocean from the activities.
In response, commission officials in June sent a letter to DOI’s Bureau of Safety & Environmental Enforcement
(BSEE) and Bureau of Ocean Energy Management (BOEM), asking the agencies to take a number of actions to tighten
their regulation of fracking and other oil and gas well stimulation practices on the Outer Continental Shelf (OCS).
The commission also wrote a letter in May to U.S. EPA Region IX, asking the agency to establish new discharge
limits on certain chemicals used in fracking and to require additional testing and monitoring of discharges.
In response to the June letter, the regional directors of BSEE and BOEM sent the commission a Dec. 10 joint letter,
committing to partnering with the California regulators.
BSEE “will coordinate with the commission and share information, as appropriate,” the letter states. “Further,
consistent with our practice, the [National Environmental Policy Act (NEPA)] review of the application will be commensurate with the potential impacts of the activity, as called for in the regulations implementing NEPA . . .”
In addition, the agencies will compile “additional information about well stimulation techniques” in response to any
new applications for permit to drill that may include fracking as defined by a 2013 California law and subsequent
regulations required by the law, the letter says. “This information will provide context for hydraulic fracturing practices
on the Pacific OCS, particularly with respect to the range of environmental issues that have been raised in the public
forum.” The letter is available on InsideEPA.com. See page 2 for details.
Further, the federal agencies “will continue to work closely with the commission regarding our collective obligations
under the Coastal Zone Management Act [CZMA],” the letter adds.
The federal law, first enacted in 1972, gives states the right to object to federal actions in the coastal zone if they are
inconsistent with states’ coastal management plans, though National Oceanic & Atmospheric Administration (NOAA), the
federal agency that oversees the law’s implementation, can overrule states’ determinations.
The bureaus note, however, that fracking on the Pacific OCS “occurs relatively infrequently,” and that BSEE’s
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Pacific Region office has no pending applications to use fracking or other well stimulation techniques.
A state source says that while the letter from BSEE and BOEM is appreciated, it lacks clarity and specificity in
the commitments. “I see this as a start,” the source says. “We want notifications of applications for well stimulation and
for there to be coordination among the agencies. This letter agrees to that. Once we are notified of any application, we
can see if we believe we have jurisdiction to review that proposal under the CZMA. I haven’t had a chance to talk with
anyone from BSEE or BOEM yet, but I’d like more detailed agreements on notifications to us within X days of receiving
any application, etc.”
The coastal commission argued last year that drilling applications could require more extensive BSEE and BOEM
environmental reviews, which would trigger federal consistency review under the CZMA.
Regulations also require supplemental OCS plans for any situation where the bureaus determine that any activities
have not been authorized under an existing OCS plan, the commission has asserted. Once OCS plans are revised or
supplemented, they trigger “formal Coastal Commission federal consistency review,” the June commission letter says.
While DOI approved 11 of 23 platforms in California OCS waters prior to the commission’s federal consistency
authority, OCS plans for the remaining 12 platforms were subject to such review, which also renders them subject to the
CZMA’s ongoing review and monitoring provisions, the commission also asserted last year.
The coastal commission believes that some of the hydraulic fracturing and other well stimulation treatment activities
are “likely being conducted in a manner that is not consistent with California’s approved management program, as they
raise a host of not-previously-considered significant coastal marine resource protection concerns,” including adverse
impacts to aquatic organisms associated with exposure to toxic chemicals; potential spills related to accidental releases of
chemicals temporarily stored on oil and gas platforms; and whether platforms and wells have been designed for the
extended life associated with continuing oil and gas production, the June letter says.
Environmentalists continue to push EPA and DOI to take much more aggressive actions in reviewing fracking and
other drilling permits for their potential environmental harms, and have criticized the two federal bureaus of responding
to California’s concerns much too slowly.
Meanwhile, oil industry representatives have said there is very little offshore fracking happening, companies are in
compliance with all applicable regulations and environmentalists are blowing the issue out of proportion.
Regulatory Uncertainty Crimps Low-Carbon Fuel Capacity, Report Says
California’s temporary freeze on its low-carbon fuel standard (LCFS) requirements in the face of lawsuits and U.S.
EPA’s difficulty in crafting new renewable fuel standard (RFS) mandates are major contributors to a drop in estimated
production capacity for low-carbon advanced biofuels in 2014 and beyond, according to a new report.
But the report, “Advanced Biofuel Market Report 2014,” says actual production of advanced biofuels — those that have at
least a 50 percent smaller carbon footprint than gasoline — will increase as regulators put the programs on firmer footing.
“Once the EPA’s 2014 rule is soon published and the LCFS court proceedings are now in the past, we can expect the
regulatory market to stabilize in comparison to the past 12 months, thus encouraging more investment and capital
expansions,” Environmental Entrepreneurs (E2), a group of businesses that advocate for environmental policies, says in
its annual assessment of the low-carbon advanced biofuel market. The report is available on InsideEPA.com. See page 2
for details.
The Jan. 6 report estimates total advanced biofuel production capacity for 2014 at between 819-933 million gallons,
down from the group’s 2013 estimate of about 1.2 billion gallons. Similarly, projected capacity in 2015 is down to a
range of 846 million to 1.1 billion gallons, compared to its past estimate of almost 1.4 billion gallons.
The group says the decrease in 2014 estimates is due to some projects ceasing operations, others falling outside the
scope of the study and a number being delayed until 2015 or later, adding that many of those decisions are tied to the
regulatory uncertainty.
The report quantifies frequent warnings from biofuel producers, who have long charged that EPA’s proposal to cut
RFS mandates in 2014 — and the agency’s subsequent delay in completing the rulemaking — have created significant
uncertainty for an industry that relies on regulatory signals to drive markets.
“This regulatory instability leads to decreased investment, which further exacerbates other challenges associated with
commercialization,” the report says.
Under the RFS, EPA sets annual fuel production targets for various renewable fuels that emit fewer greenhouse gases
(GHGs) than conventional gasoline. Cellulosic and advanced biofuels have the lowest carbon footprint of the fuels
required to comply, with cellulosic generally having to emit 60 percent fewer GHGs than petroleum.
Refiners can comply with the RFS targets either by blending necessary volumes of fuels or by purchasing expensive
renewable identification number credits.
But EPA’s targets drive fights between obligated parties — such as refiners that must meet the rules’ blend targets —
and biofuels advocates who seek larger targets in part to drive demand and investment. Refiners, who say EPA should set
achievable targets, have been especially concerned because EPA has in the past set targets for cellulosic fuels that are
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significantly higher than what has been produced, forcing refiners to purchase costly compliance credits from the agency
to offset the lack of production.
In 2014, EPA proposed a rule that significantly lowered blend mandates for many fuels, a measure that drew stiff
opposition from biofuel producers. EPA subsequently delayed the 2014 mandates.
A source with E2 says the agency’s proposed rule lowered potential demand and “really had a dampening effect” on
the industry as it “quieted investment and made competition more stiff.”
LCFS Legal Challenges
In addition to the difficulties plaguing EPA’s rulemaking, the report also finds that California’s decision to freeze its
2013 LCFS requirements through 2015 as the state dealt with litigation also contributed to the uncertain regulatory
environment.
Those legal challenges have now been addressed as the Supreme Court declined to hear a case challenging the law’s
constitutionality and state regulators are correcting state court findings that its rules violate environmental review requirements.
In fact, the California Air Resources Board announced last year that it plans to maintain the program’s current
requirement that fuel providers cut the carbon intensity of gasoline and diesel 10 percent by 2020, while providing a new
compliance path from 2016 to 2019 (see separate story, p1).
California and other Pacific Coast states are also currently working to create a regional LCFS market, which would
further increase demand for low-carbon fuels.
Such requirements and plans are boosting confidence in the local programs and raising credit prices, creating a
financial incentive for producers to increase production, the E2 report says.
“There remains some uncertainty as to how the industry will respond once EPA volumes are established,” the report
says. “Although some projects may never recover, we expect biofuel companies to have increased interest in West Coast
LCFS markets, where the policy outlook is more certain at this time,” the report adds.
Still, the group says it expects “significant increases” in production capacity, particularly of drop-in fuels and
cellulosic ethanol in 2016. “By 2016, there may be the capacity to produce over 1.4 billion gallons of advanced biofuels,”
the report says.
EPA Launches Rulemaking To Craft FIP For ESPS, Delays Issuing NSPS
U.S. EPA is launching a rulemaking to develop a federal implementation plan (FIP) for its pending greenhouse gas
(GHG) rule for existing power plants, a measure that will detail how the agency will implement the rule’s requirements in
states that choose not to, and likely provide a legal test of the agency’s power to requires states to comply.
California officials are likely to closely follow and support the FIP rulemaking, based on their desire that other states
be forced to comply with the power plant regulation.
According to a Jan. 7 fact sheet, the agency is formally launching the process for crafting the FIP this month and will
propose the measure alongside the final existing source performance standard (ESPS), which is slated for promulgation
later this summer. EPA says it will “be in a position to issue” a final FIP in the summer of 2016, around the time states are
required to submit their initial state implementation plans (SIPs) showing how they plan to comply.
The fact sheet also indicates that EPA is delaying its pending rule governing GHGs at new power plants. The measure, which was proposed last January, was slated to be issued Jan. 8, but the fact sheet says the new source performance
standard will now be promulgated alongside pending rules for modified and existing sources.
Many opponents of EPA’s rules are urging state officials to withhold their compliance plans as a way to test the
agency’s authority to impose ESPS requirements. Many say that the agency lacks authority under the Clean Air Act to
require states to take action beyond power plants’ fencelines, so forcing EPA to impose FIP requirements could be a way
to test its legal authority.
Some critics, like GOP strategist Mike McKenna, have argued that forcing EPA to impose a FIP would likely result
in less severe impacts on states because EPA’s FIP authority is much more limited than what states can do in SIPs.
But EPA officials and supporters of the ESPS say the agency has authority to implement the rule. Lori Schmidt, a top
EPA lawyer, has said that officials believe they have authority to require “sources” to take some steps beyond the
fenceline, such as hiring third parties to implement energy efficiency programs. Even if the action cannot be done “at” the
facility, it can still be done “by” the facility, Schmidt said.
And Megan Ceronsky, a lawyer with the Environmental Defense Fund, has said the agency has long interacted with
the regulated power sector in implementing its regulations. In this case, she said the agency could create an “emissions
rate trading program” for a state without a plan. This would result in either direct regulation of facilities by requiring
them to meet a GHG rate target and/or it would allow the facilities to incorporate renewable energy and energy efficiency
credits, though she said there would need to be a quality control mechanism to assess the credits’ veracity.
The dispute has driven competing pressures on states over whether to submit plans to comply with the ESPS, with
many in the power industry urging states to submit plans or risk strict federal mandates, while conservative critics are
urging states to ignore the requirement in a bid to test the agency’s FIP authority.
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Despite GOP Gains, Preemption Remains Major Hurdle For TSCA Reform
Preemption of chemical management programs in California and other states will likely remain the major hurdle to
the 114th Congress approving legislation to reform the Toxic Substances Control Act (TSCA) despite Republicans
winning control of both chambers last year, sources say.
TSCA reform legislation failed in the 113th Congress due to divisions between the GOP and Democrats on how to
craft such a bill, with preemption repeatedly seen as a stumbling block. For example, then-Senate Environment & Public
Works (EPW) Committee Chairman Barbara Boxer (D-CA) refused to allow a vote on approving a bipartisan TSCA
reform bill until her concerns about preemption were resolved — something that was not to happen.
Observers expect that Republicans will revive debate on TSCA reform early in 2015 given their control of both
chambers of Congress and ability to move legislation on their terms.
But one industry source says early debate on the issue will focus on questions such as how to find resources for EPA
to implement requirements of a TSCA reform bill, with preemption talks to occur in the 11th-hour after all other issues
have been resolved — a change from 2014, when the early focus was on the preemption fight. “I think Democrats hold
that chip till the end, before compromising on preemption,” the source says.
Proponents of reforming the 1976 chemical safety law have said that the GOP midterm election gains may help clear
a path for reform legislation of the law, which is largely seen as a broken statute because of its limits on EPA’s ability to
address the safety of chemicals already in the marketplace.
Among the reasons for TSCA reform supporters’ optimism is that Boxer will no longer be able to block the bill
advancing in EPW, with Sen. James Inhofe (R-OK) chairing the panel.
But industry officials continue to stress the importance of continuing efforts to reach compromise on several issues,
most notably preemption. If the GOP pushes a bill through Congress with little Democratic or environmentalist support, it
will do little to improve consumer confidence that chemicals are safe, they say.
“The path is not yet clear, but the change gives us the best chance in years to see TSCA reform get across the finish
line,” Mike Walls, vice president of regulatory and technical affairs of the American Chemistry Council (ACC), told a
Chemical Watch summit in Arlington, VA, in December.
But Walls cautioned, “We need more of a public debate” on the bipartisan bill floated early last fall by Sens. David
Vitter (R-LA) and Tom Udall (D-NM). Boxer released details of that draft and highlighted concerns including that it
would preempt many state efforts, prompting Vitter to scrap plans for moving any bill late last year.
Walls signaled that proponents of TSCA reform will be looking to ensure broad bipartisan backing, adding, “There is
not a desire on anybody’s part to try to ram anything through.”
The Vitter-Udall discussion draft is likely to be re-introduced as early as January, the industry source says, adding
that it is unclear whether the senators will try to get new Democratic sponsors for the bill, which previously had 26 total
sponsors, 13 of them Democrats, or pursue new sponsors.
Walls told the summit that including preemption language to limit state chemicals management programs remains a
top ACC objective for a TSCA reform bill.
The Procter & Gamble Company’s Julie Froelicher said at the same summit that while she does not want to see
“states taking continued regulatory action independent of EPA,” there may be a “significant role for states on chemicals”
in negotiating TSCA reform.
Lynn Bergeson, of the Washington, DC, firm Bergeson & Campbell, noted that the “rights of states need to be part of
the discussion on preemption in reform talks during the next Congress,” adding that the importance of the issue “cannot
be overestimated” in securing approval of a TSCA reform bill.
The initial draft of S. 1009, the bipartisan TSCA reform bill introduced by Vitter, ranking member on EPW in the
113th Congress, and the late Sen. Frank Lautenberg (D-NJ), would have allowed EPA to preempt state rules limiting or
banning the use of chemicals in certain applications once EPA has made a safety determination.
Boxer as chairman of EPW said she would not allow movement on S. 1009 until a series of her concerns with the bill
were addressed, including the provisions preempting state chemical laws, which she feared could disrupt existing California programs such as its green chemistry rules, protections for vulnerable populations and other issues.
The legislation would have barred states from imposing new restrictions on chemicals identified as “high-priority” by
EPA at the time the agency publishes a schedule for assessing safety of the substance and once the agency designates a
chemical as “low-priority.”
Following Lautenberg’s death, Udall worked with Vitter to revise S. 1009 to address concerns from Boxer, environmentalists, and others. Changes included adding considerations for vulnerable subpopulations, deadlines for EPA to take
action on chemicals, and new preemption language that would only block state action on high-priority chemicals once
EPA commences a safety assessment.
But gridlock on the bill escalated in September when Vitter criticized Boxer for what he said was a premature release
of the revised bill.
Boxer released not only a revised S. 1009 bill but her revisions to the updated measure, which included dropping the
provisions that she said would preempt state programs and tightening the bill’s safety standard. — Bridget DiCosmo
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