Supreme Court: No Review of Ruling on New Source Review

On April 30, the U.S. Supreme Court rejected a petition by the federal government to review a decision striking down a Clean Air Act rule that limited the circumstances under which new source review (NSR) requirements apply to maintenance projects at power plants and other industrial facilities  

The federal government had asked the court to grant "cert," or a review, of a decision in 2005 by the U.S. Court of Appeals for the D.C. Circuit that overturned an EPA rule exempting from NSR equipment replacement projects that cost less than 20 percent of the replacement cost of the entire unit.

 The D.C. Circuit said the Clean Air Act language stating NSR applies to "any physical change" at an applicable source of air pollution is unambiguous and not subject to interpretation by the Environmental Protection Agency.

NSR requires major stationary air pollution sources to install modern pollution controls when they make plant modifications that increase emissions. The equipment replacement rule would have defined plant modification as a change that cost more than 20 percent of the replacement cost of the plant.

The D.C. Circuit said that under the Clean Air Act, NSR applies to "any physical change" that increases emissions and that EPA cannot interpret this phrase to exclude changes that fall below the 20 percent cost threshold for equipment replacement.

The Department of Justice petitioned the court for cert November 27. The agency was joined by a group of electric utilities known as the Utility Air Regulatory Group.

Several state governments and environmental organizations filed briefs opposing cert January 26.

Contact Deidra Ciriello.

Mine Safety Bills Introduced in Congress

Two new Occupational Safety and Health Administration reform bills were introduced in Congress this week.  The identical House and Senate bills would impose a penalty structure similar to that applicable to MSHA following last year’s Mine Improvement and New Emergency Response Act of 2006 (the MINER Act). 

H.R. 2049 was introduced by Rep. Lynn C. Woolsey (D-CA), and Senate bill S.1244 was introduced by Senators Edward Kennedy (D-Mass.) and Patty Murray (D-Wash.).

The bills would:
...• Institute minimum penalties of $50,000 per violation in the case of fatalities or serious injuries with maximum penalties up to $250,000;
...• Provide significant increases in other penalty provisions; and
...• Provide for felony (rather than misdemeanor) criminal sanctions for willful violations that lead to death or serious injury of a worker.

The bills were referred to the U.S. House Committee on Education and Labor and the Senate Committee on Health, Education, Labor, and Pensions, respectively.  No hearings are scheduled at this time.

Contact Deidra Ciriello.

Senate Energy Committee Marks up Energy Bill

The Energy and Natural Resources committee held a mark up on Wednesday to approve bi-partisan energy legislation that would improve energy efficiency, promote renewable fuels diversity, and invest in carbon capture and sequestration programs. 

The legislation passed through the committee with a vote of 20 to 3, with Senators Craig Thomas (R-Wyo.), Richard Burr (R-N.C.), and James DeMint (R-S.C.) opposing. 

In spite of a truce not to include language in the bill regarding coal to liquid production, Senator Thomas and Senator James P.D. Bunning (R-Ky.) introduced an amendment to that effect which was rejected along party lines by 12-11. 

Democrats and others on the committee instead approved Senator Jesse Bingaman Jr. ’s (D-N.M.) amendment which creates a research and development program for carbon sequestration targeted specifically for manufacturing industries by a vote of 15-8. 

Cement plants were mentioned twice as candidates who could apply for this program, which would provide a 50/50 match of funding for technology that would capture and store a mandatory 85% of CO2 emissions.  Until there is the technology to capture CO2 from coal production, the majority of the committee was hesitant to provide a boost for coal to liquid processes.

Senate Majority Leader Harry Reid (D-Nev.) would like to take up the energy legislation on the floor sometime before Memorial Day, although it is unknown if this will occur, since energy legislation will not come up until after debate occurs on the Water Resources Development Act, war supplemental and immigration bills. 

Contact John Shaw, David Hubbard, or Jessica Hogel.

House Veterans’ Subcommittee Holds Hearing on Benefits

The U.S. House Veterans’ Affairs Committee, Subcommittee on Economic Opportunity held a hearing on expanding the accelerated benefits program of the Montgomery GI Bill to pay for special vocational programs that don’t currently qualify under the program.  

In the first panel, Rep. Mike H. Michaud (D-Me.) testified on H.R. 1824, a bill he introduced that would extend accelerated Montgomery GI Bill benefits to veterans enrolled in an accredited program of study leading to employment as a commercial motor vehicle operator.

Chairwoman Stephanie Herseth Sandlin (D-S.D.) and Ranking Member John Boozman (R-Ark.), cosponsors of H.R. 1824, expressed their desire to report the bill out of subcommittee as soon as possible.

NACA partner NRMCA strongly supports H.R. 1824 as it would help to alleviate the severe driver shortage currently being experienced by the ready mixed concrete industry.

Contact Robert Sullivan.

As part of their settlement of a threatened challenge to the exclusion of cement from a recent rulemaking on hexavalent chromium by the construction trades of the AFL-CIO, the Occupational Safety and Health Administration (OSHA) has clarified the safety requirements at construction sites. 

PCA and NRMCA advocated forcefully and successfully to exclude cement from each of the standards contained in the rulemaking.  A key element of our advocacy was the position that existing standards would require adequate worker protection at construction sites to protect workers from trace levels of hexavalent chromium in cement. 

OSHA endorsed this position but has taken the opportunity to clarify precisely what those requirements are.  PCA and NRMCA have also stressed the need for concrete workers to use adequate personal protective equipment and to flush areas exposed to cement with clear water.

Contact Tom Carter or Tom Harman.

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