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(ACC Blog) American Chemistry: Touching Our Lives Every Day
Jun 30, 2015 | American Chemistry Matters
How do you begin your morning? Many of you probably start by checking emails on your iPhone, or turning on your TV to catch up on the morning news. http://blog.americanchemistry.com/2015/06/american-chemistry-touching-our-lives-every-day/#sthash.bHk5wmea.dpuf -
(ACC Mentioned) US Osha Says Many Companies Met GHS Deadline
Jun 30, 2015 | Chemical Watch
The US Occupational Safety and Health Administration says it has received “anecdotal information, indicating that many manufacturers have been able to comply” with the 1 June deadline for implementing the new hazard communication standard [HazCom 2012]. -
Senator Boxer to Push for Passage of House TSCA Bill
Jun 30, 2015 | Chemical Watch
By Dinesh Kumar
In a surprise move, Senator Barbara Boxer has said she will push for the Senate to embrace the Toxic Substances Control Act reform bill passed by the House, rather than take up the Senate's own measure, the Udall-Vitter bill. -
And Now the Gory Details: A Deep-Dive Comparison of the Senate and House TSCA Reform Legislation
Jun 30, 2015 |
By Richard Denison
Yesterday I posted a side-by-side providing a 35,000-foot-level comparison of how the House’s TSCA Modernization Act of 2015 (H.R. 2576) and the Senate’s Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), address the key limitations of the Toxic Substances Control Act (TSCA). -
US EPA Revises Snurs for 21 Substances
Jun 30, 2015 | Chemical Watch
The US EPA is amending significant new use rules it issued for 21 chemical substances, which were the subject of pre-manufacture notices under the Toxic Substances Control Act. -
EPA Slates Vanadium IRIS Assessment For Release, Advances Other Studies
Jun 30, 2015 | InsideEPA
By Maria Hegstad
EPA has made the first update in more than a year to the status of chemicals under review in its Integrated Risk Information System (IRIS) program that creates hazard assessments underpinning many agency decisions, with a contested vanadium pentoxide (V205) review slated for release this fall and other chemical reviews advancing.] -
Mapping The Deadly Toll Of Asbestos – State By State, County By County
Jun 30, 2015 | Environmental Working Group
By Sarah Grantham
More than 50 years after a landmark study confirmed the lethal effects of asbestos exposure, we still don’t know exactly how many people asbestos kills. -
Watchdog Warns of Risks in CSB's Purchase Card Program
Jun 30, 2015 | E&E - Greenwire
By Sam Pearson
A program that lets U.S. Chemical Safety Board employees use agency charge cards poses a high risk for illegal, improper or erroneous purchases and payments, U.S. EPA's inspector general warns in a new report. -
OSHA's Weak Safety Standards Fail to Protect Workers -- Report
Jun 30, 2015 | E&E - Greenwire
An estimated 53,000 people died in 2007 from on-the-job exposure to toxic chemicals, according to widely cited research, but the federal agency charged with protecting them, the Department of Labor's Occupational Safety and Health Administration, has done little to tighten exposure limits that could reduce the deaths. -
Mercury Ruling Sets Up Legal 'Crapshoot' on Clean Power Plan
Jun 30, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Yesterday's Supreme Court ruling that U.S. EPA should have considered costs before issuing its mercury air standards for power plants left one major question unanswered: how the decision could affect coal companies' first legal challenges to President Obama's forthcoming greenhouse gas limits for power plants. -
Mercury Regs Ruling Emboldens Clean Power Plan Critics, But Few Changes Seen for Utilities
Jun 30, 2015 | E&E - Energywire
By Emily Holden, Jeffrey Tomich and Edward Klump
U.S. EPA critics heralded a Supreme Court decision yesterday that the agency should have considered the compliance costs of its mercury standards for coal plants, saying the ruling is proof that states should refuse to comply with the agency's Clean Power Plan until legal challenges play out. -
Checklist Lays Out Legislative Questions for Officials Weighing Clean Power Plan
Jun 30, 2015 | E&E - Climatewire
By Emily Holden
The national organization that represents state lawmakers says if states want to work together to comply with the Clean Power Plan, coordinating with legislatures will be key. -
For Now, Supreme Court's Mercury Ruling Preserves Challenges To ESPS
Jun 30, 2015 | InsideEPA
By Lee Logan
The Supreme Court's ruling remanding EPA's mercury rule for power plants to a lower court appears to have preserved -- for now -- critics' argument that the agency lacks threshold Clean Air Act authority to regulate greenhouse gas (GHG) emissions at existing power plants -- though some observers say that could change depending on how the lower court addresses the litigation. -
EPA Retains 'Affirmative Defense' In Consent Decree Despite SSM 'SIP Call'
Jun 30, 2015 | InsideEPA
By Stuart Parker
EPA in a proposed consent decree over a utility's alleged Clean Air Act violations includes an "affirmative defense" that will shield the company from civil liability for air law violations due to certain malfunctions, seemingly at odds with the agency's recent rule forcing states to remove affirmative defense provisions from their air quality plans. -
27 States Challenge Obama Water Rule in Court
Jun 30, 2015 | The Hill - E2 Wire
By Timothy Cama
Nine states sued the Obama administration Tuesday over its rule asserting power over small waterways like streams and wetlands, bringing the total number of states challenging the regulation to 27. -
9 More States Sue Obama Admin Over Hot-Button Rule
Jun 30, 2015 | E&E - Greenwire
By Annie Snider
Nine more states today sued the Obama administration over its controversial water rule, bringing the total to 27 states now challenging the effort to expand the number of streams and wetlands that receive automatic protection under the Clean Water Act following two muddled Supreme Court decisions. -
N.Y. Makes Fracking Ban Official as Industry Mulls Lawsuits
Jun 30, 2015 | E&E - Energywire
By Colin Sullivan
New York regulators yesterday released their legal justification for banning the drilling method known as high-volume hydraulic fracturing, or fracking, possibly setting the stage for lawsuits challenging the prohibition.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Energy and Environment News
Transportation News - There are no clips to report at this time
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(ACC Blog) American Chemistry: Touching Our Lives Every Day
Jun 30, 2015 | American Chemistry Matters
How do you begin your morning? Many of you probably start by checking emails on your iPhone, or turning on your TV to catch up on the morning news. Maybe you get in your vehicle and drive to work, or hop on public transportation, such as a bus or subway. It should come as no surprise that you are able to do all of these things because of the innovative technologies that are made possible through chemistry. In fact, the business of chemistry contributes to 96% of all manufactured goods, from automobiles to clothing, medical devices to smartphones, and nearly everything in between.
It doesn’t stop there. The business of chemistry is an $801 billion industry – larger than either the motor vehicle of aerospace industries – and it continues to grow. In recent years, the chemical industry has seen rapid expansion to capitalize on the competitive advantages afforded by new development of natural gas and natural gas liquids from shale development. Since 2010, more than $145 billion of new chemical industry investment has been announced. Currently, our industry provides 804,000 skilled, good-paying American jobs, but that number stands to grow as these new facilities come online, with each new job in chemical manufacturing creating more than six new jobs in other areas of the economy. The business of chemistry is a driving force behind the growth and expansion of the U.S. economy, accounting for nearly 25% of the GDP and 14% of exports, the largest exporting industry in the U.S.
But our industry isn’t just about growing the economy – it’s about ensuring businesses and consumers enjoy healthier and longer lives, with chemistry playing an essential role in the creation of ground-breaking products that make our lives and our world healthier, safer, more sustainable, and more productive. From the airbags in your car to the water you drink, chemistry is saving lives every day.
As valuable as these products are, they must also be used responsibly. That’s why the American Chemistry Council (ACC) has long championed Responsible Care®, an initiative built around the safe, responsible, sustainable management of chemicals through their life cycles and for their intended uses. ACC member companies must adhere to the Responsible Care Product and Process Safety Codes, their commitments to driving continuous improvement in chemical product safety, and helping to ensure the safety of industry facilities and the many people they employ.
While we are already evaluating, demonstrating, and continuously improving our product safety and process safety performances, we continue to advocate for a balanced and comprehensive approach to updating our nation’s chemical regulatory framework that encourages expansion, innovation, and economic growth through a predictable regulatory environment.
You can learn more about the business of chemistry and its contributions to the U.S. and world economies in ACC’s 2015 Guide to the Business of Chemistry, our most comprehensive resource profiling the economics of this growth engine industry.
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(ACC Mentioned) US Osha Says Many Companies Met GHS Deadline
Jun 30, 2015 | Chemical Watch
The US Occupational Safety and Health Administration says it has received “anecdotal information, indicating that many manufacturers have been able to comply” with the 1 June deadline for implementing the new hazard communication standard [HazCom 2012].
HazCom 2012, which aligns the US standard with the Globally Harmonized System (GHS) of classification and labelling of chemicals, says that chemical manufacturers and importers must update their classifications, container labels and safety data sheets (SDSs). Distributors are allowed to ship products labelled under the old scheme until 1 December.
But in response to a petition for extension of the 1 June deadline, the agency said, in March, it would provide enforcement relief of six months for product formulators, manufacturers and importers, which can demonstrate that they cannot comply with the deadline through failure to obtain classification and SDS information from their suppliers (CW 3 March 2015).
An Osha spokesperson said the agency does not collect data on which companies need relief or that have come into compliance.
Meanwhile, the American Chemistry Council said that though its members have been “diligently preparing” SDS and labels to meet the 1 June deadline, it “recognises there may be compliance challenges throughout the supply chain”.
It will work with Osha in the development of implementation and enforcement guidance documents, including important instruction on how scientific studies should be weighed and evaluated for the purposes of hazard classification under GHS. “These guidance documents will assist manufacturers, importers, transporters, suppliers and stakeholders in ensuring accurate and consistent compliance with HCS.”
The Society of Chemical Manufacturers and Affiliates has not heard from members that they are unable to comply with the deadline, although the group supported the deadline extension, said Bill Allmond, vice president of government relations. “In general, the new GHS requirements, particularly the labelling provisions, are significantly burdensome and costly for Socma members.”
The American Cleaning Institute has not been tracking member compliance, said spokesman Brian Sansoni. “The critical issue for ACI is further harmonisation of the newly implemented Canadian [GHS] rule with Osha's rule, so we can continue to reduce trade barriers with our largest trading partner.”
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Senator Boxer to Push for Passage of House TSCA Bill
Jun 30, 2015 | Chemical Watch
By Dinesh Kumar
In a surprise move, Senator Barbara Boxer has said she will push for the Senate to embrace the Toxic Substances Control Act reform bill passed by the House, rather than take up the Senate's own measure, the Udall-Vitter bill.
The House passed the TSCA Modernization Act (HR 2576) on 23 June by a massive 398-1 vote (CW 24 June 2015).
The Udall-Vitter bill (S 697), which is more comprehensive than the House version, passed the Senate Environment and Public Works Committee in April (CW 29 April 2015) and is awaiting floor action in July.
Ms Boxer (D-California), the ranking member on the EPW committee and a strident critic of the Udall-Vitter bill, said if it is taken up instead of the House bill, she expects a “long, drawn-out process” and would object “at every opportunity because it is convoluted and will lead straight to the court house door”.
She said she had told the House bill's author, Republican Representative John Shimkus, that because of the “clarity, simplicity and overwhelming bipartisan support in the House” for the bill, she would push for the Senate to take it up with a “few perfecting amendments”. She added that several states oppose the Senate bill and support the House measure instead.
But a spokesman for Mr Shimkus told Chemical Watch his ultimate goal is “to get TSCA reform to the President's desk and he's not trying to intervene as the Senate works its will”.
Ms Boxer's proposal also met with push back from Senator Tom Udall (D-New Mexico), a co-author of the Senate bill. Jennifer Talhelm, an aide to Mr Udall, told Chemical Watch that, during a conversation with Mr Udall, Mr Shimkus had urged that the Senate take up S 697.
There are important provisions in the Senate bill that are not in the House bill, she added. They include a fee increase that would ensure that the EPA has the funds to test and regulate chemicals, reform of the new chemicals programme and a requirement that chemical companies disclose the makeup of their products so the public has access to safety information.
“Senator Udall believes that these changes and other [provisions] in the Senate bill are critical and will ensure the reformed law is strong enough to finally protect kids from dangerous chemicals,” Ms Talhelm said. “He and Congressman Shimkus agree that it's important to discuss these issues in a conference committee.”
“It is less important that we pick sides now over which TSCA bill is more preferred over the other and more important for both bills to pass with large bipartisan majorities,” said Bill Allmond, vice president of government relations at the Society of Chemical Manufacturers and Affiliates. “The House bill was overwhelmingly successful, so it clearly has the momentum and support, especially given Senator Boxer's explicit support for the bill and vow to complicate passage of the Senate bill.”
“Substantively, we believe that while both bills have key flaws, the House bill could more easily be amended to address the remaining health and environmental concerns,” said Andy Igrejas, director of the Safer Chemicals, Healthy Families coalition.
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And Now the Gory Details: A Deep-Dive Comparison of the Senate and House TSCA Reform Legislation
Jun 30, 2015 |
By Richard Denison
Yesterday I posted a side-by-side providing a 35,000-foot-level comparison of how the House’s TSCA Modernization Act of 2015 (H.R. 2576) and the Senate’s Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), address the key limitations of the Toxic Substances Control Act (TSCA).
For those left wanting more, available here [http://blogs.edf.org/health/files/2015/06/Side-by-side-TSCA-S.-697-H.R.2576-6-30-15.pdf] is a more detailed comparison of the bills relative to TSCA that lines them up on 12 major aspects of reform.
Enjoy!
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US EPA Revises Snurs for 21 Substances
Jun 30, 2015 | Chemical Watch
The US EPA is amending significant new use rules it issued for 21 chemical substances, which were the subject of pre-manufacture notices under the Toxic Substances Control Act.
The action changes the Snurs to allow certain uses, without requiring a significant new use notice (Snun), and extends Snun requirements to certain additional uses.
The move follows review of new data for the substances, the agency said in a Federal Register notice. This final rule takes effect on 31 August.
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EPA Slates Vanadium IRIS Assessment For Release, Advances Other Studies
Jun 30, 2015 | InsideEPA
By Maria Hegstad
EPA has made the first update in more than a year to the status of chemicals under review in its Integrated Risk Information System (IRIS) program that creates hazard assessments underpinning many agency decisions, with a contested vanadium pentoxide (V205) review slated for release this fall and other chemical reviews advancing.]
The agency announced the updates on its now-defunct IRISTrack website that listed the status of ongoing IRIS assessments. EPA says it will periodically update the list until it unveils a redesigned IRIS website sometime in the fall, which will provide schedules reflecting the agency's "enhanced" risk review development process. EPA is seeking to improve the IRIS program following a critical National Academy of Sciences (NAS) review in 2011.
The most recently released IRIS report was EPA's final assessment of Libby amphibole asbestos issued last December, following fiscal year 2014 when no IRIS assessments were finalized.
The IRISTrack update says EPA now plans to issue a final V2O5 assessment this fall. The V2O5 assessmenthas been expected as the first IRIS assessment EPA finalizes in calendar year 2015, and the second since the fiscal year began. The congressional justification document accompanying EPA's FY15 budget request stated that the V2O5 "is anticipated to be complete early in 2015."
It is unclear why the targeted deadline for V2O5 was not met, although staffing changes within the agency could potentially have contributed to the delay. IRIS' chemical manager for the V2O5 assessment left the IRIS program and moved to the front office of EPA's research and development office to work with Deputy Assistant Administrator Bob Kavlock. And the chief of the IRIS branch managing the assessment left the agency for an academic post, agency sources said last spring.
The new IRIS update adds that the V2O5 "assessment has been revised taking into consideration the public comments and in accordance with the recommendation of the final peer review report. The revised assessment is currently undergoing final agency/interagency science discussion."
The update does not address concerns from industry and the Defense Department, who last year requested the agency seek a second peer review of some portion of the draft assessment.
They also pressed EPA for a decision regarding the date of its stopping rule, part of a process for determining whether and to what extent new information is added to the assessment once it has passed the initial drafting phase. In this case, the request was expected to consider how and whether all results of an industry-military research program are reviewed by IRIS staff before completing the assessment.
Agency and stakeholder sources confirm that IRIS leaders have yet to respond to either request. But the update to the IRIS Assessment Status chart suggests it is unlikely there is time for a second peer review before the targeted deadline for completing the assessment later this year.
Pending Assessments
The V2O5 assessment is the only IRIS assessment listed in the status update with a target deadline for posting a final assessment. Several others, however, are listed at step 4a in the IRIS development process, where EPA will release a draft assessment to the public for comment.
EPA includes targeted deadlines for this step for three assessments: t-Butanol, ethyl tertiary butyl ether (ETBE) and hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX). In each case, EPA estimates that the draft assessment will be released for public comment this summer or fall, and the assessments are meanwhile "being revised in response to comments received during interagency science consultation."
The ETBE assessment is one of a half-dozen assessments caught up in concerns over the validity of data published by an Italian toxicology lab, known as the Ramazzini Institute, which used an unusual whole lifetime study approach in research with lab animals. In 2010, EPA's then Science Advisor Paul Anastas announced that the agency would not use Ramazzini data pertaining to soft cancers -- such as those for leukemias -- in its assessments.
The ETBE assessment had until then relied on Ramazzini data for its determination that "there is suggestive evidence of human carcinogenicity of ETBE based on the only oral cancer bioassay in Sprague-Dawley rats (Maltoni et al., 1999)."
The document has since been redrafted with different data, an agency source says. The source declined to provide additional detail.
The IRIS assessment of formaldehyde -- whose critical draft peer review by NAS in 2011 unleashed a torrent of reform efforts upon the IRIS program -- is also listed at step 4a for releasing a public draft. No deadline is estimated.
"A revised assessment is under development to address the 2011 NAS peer review recommendations," the status update says. "A revised assessment will repeat Agency review and interagency science consultation before being released for additional public comment and scheduled for discussion at a future IRIS public science meeting. The revised assessment will undergo peer review by" the EPA Science Advisory Board's Chemical Assessment Advisory Committee.
Another long-pending and controversial IRIS assessment, of inorganic arsenic, remains in the early stages, at step 2, which is agency review. After several rounds of critical comment on earlier drafts of the assessment over the years, EPA sought advice from NAS on how to conduct the assessment. Since the release of NAS' recommendations in 2013, progress on the report has slowed with one of the three arsenic chemical managers leaving the IRIS program.
The status update indicates that before submitting the early draft to internal agency review and comment, IRIS staff will release a revised version of their assessment development plan (ADP) this summer. Further, "two public webinars will be conducted in Summer 2015; one on the ADP and another on dose-response."
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Mapping The Deadly Toll Of Asbestos – State By State, County By County
Jun 30, 2015 | Environmental Working Group
By Sarah Grantham
Originally published on Asbestos Nation by Sarah Grantham, policy analyst for the Environmental Working Group Action Fund.
More than 50 years after a landmark study confirmed the lethal effects of asbestos exposure, we still don’t know exactly how many people asbestos kills.
EWG Action Fund researchers recently estimated as many as 15,000 Americans die every year from diseases stemming from asbestos exposure. Today, EWG Action Fund released an interactive map showing the deadly toll of asbestos from 1999 to 2013, broken down to the state and county levels.
Not surprisingly, the populous states of California, Florida, Pennsylvania, New York and Texas experienced the most asbestos-related deaths over that 14-year period. But those numbers don’t tell the whole story. When EWG Action Fund analyzed asbestos-related death rates, it turned out that in six states – Delaware, Maine, Montana, Pennsylvania, Washington and West Virginia – the death rates were 50-to-100 percent higher than the national average. The variability was even greater at the county level. More than 25 counties reported death rates that were 4-to-13 times the national average.
The map shows that asbestos-related deaths affect families and communities in every state and every county in America. Despite the dangers and asbestos’ deadly history, it is still legal and still everywhere. Americans continue to face exposure in the places they go and from the products they use every day, so it’s inevitable that thousands more will die in the years to come.
EWG Action Fund’s maps are interactive. Click on your state to learn more about asbestos mortality in your community.
Read the full story here.
Copyright © 2015, EWG Action Fund. All rights reserved.http://www.asbestosnation.org. Reproduced with permission.
EWG Action Fund is a 501(c)(4) organization that is a separate sister organization of the Environmental Working Group. The mission of EWG Action Fund is to protect health and the environment by educating the public and lobbying on a wide range of environmental issues.
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Watchdog Warns of Risks in CSB's Purchase Card Program
Jun 30, 2015 | E&E - Greenwire
By Sam Pearson
A program that lets U.S. Chemical Safety Board employees use agency charge cards poses a high risk for illegal, improper or erroneous purchases and payments, U.S. EPA's inspector general warns in a new report.
The report says CSB failed to meet federal requirements for purchase card programs because it didn't have a written management plan until late last year.
CSB had provided assurances it had appropriate policies even though it had not completed the plan, the report says, and the management plan the agency filed late was incomplete.
The requirements were established under the 2012 "Government Charge Card Abuse Prevention Act," which requires executive branch agencies to implement these safeguards, the IG said.
CSB also failed to require employees to receive written approval from supervisors before making purchases using the cards, the report says.
The agency said it had procedures for evaluating purchases after the fact to ensure they were not improper.
Because the IG found the purchase card program poses a high risk, the office will conduct an audit of the program in the upcoming fiscal year, the report says.
In response, CSB said it has formally documented guidance and controls on the program that previously were not included in written form.
The IG's report fails to recognize CSB's efforts, former board member Mark Griffon said in the response, which was dated May 27.
Griffon noted that the IG had not identified any instances where CSB staff made improper purchases.
"Although the CSB believes purchase card programs are inherently high risk we are concerned that your report is misleading because it does not recognize CSB efforts that have successfully mitigated the risks," Griffon wrote. "In addition the report leaves the erroneous impression that the CSB's program may be at higher risk than other such programs across the government."
He noted the Treasury Department's Bureau of the Fiscal Service, with which CSB has an interagency agreement for financial services, had told CSB in its most recent review that the program was well-managed.
The bureau wrote "the purchases were well documented and necessary for the completion of CSB's mission," he said, and added it was "very impressed at how well the cardholders are maintaining their supporting documentation and the forms that they are required to complete."
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OSHA's Weak Safety Standards Fail to Protect Workers -- Report
Jun 30, 2015 | E&E - Greenwire
An estimated 53,000 people died in 2007 from on-the-job exposure to toxic chemicals, according to widely cited research, but the federal agency charged with protecting them, the Department of Labor's Occupational Safety and Health Administration, has done little to tighten exposure limits that could reduce the deaths.
It's not by mistake, but rather by design. That's because OSHA uses a weaker system of hazard regulation than that for the general public.
OSHA standards -- which pro-business groups fiercely resist changes to -- are 10 to 1,000 times less protective than those of U.S. EPA.
The agency acknowledges its standards are grossly outdated but is largely impotent to do anything about it. In addition, the vast majority of chemicals used or made in the United States have no workplace exposure limit.
"With a few exceptions, OSHA's standards to protect workers from chemical exposures are weak and out of date, or simply nonexistent," said David Michaels, the assistant secretary of Labor for occupational health.
For decades, Congress has declined to strengthen the Occupational Safety and Health Act of 1970, which created the agency, by making the law clearer about what actions OSHA can take. The White House's Office of Management and Budget, too, has delayed standards for harmful substances like silica, which were held up for 921 days.
The gap in protections surprised construction worker Santiago Hernandez, who left Tlaxcala, Mexico, thinking he could find safer work conditions in the United States.
Instead, he said at a Department of Labor public hearing, "things are actually much worse here than in Mexico" (Morris/Hopkins/Jameel, Center for Public Integrity, June 29). -- SP
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Mercury Ruling Sets Up Legal 'Crapshoot' on Clean Power Plan
Jun 30, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
Yesterday's Supreme Court ruling that U.S. EPA should have considered costs before issuing its mercury air standards for power plants left one major question unanswered: how the decision could affect coal companies' first legal challenges to President Obama's forthcoming greenhouse gas limits for power plants.
In a 5-4 ruling, the high court's conservative wing said EPA should have considered the Mercury and Air Toxics Standards' $9.6 billion price tag before going ahead with the regulations (Greenwire, June 29).
But the court did not vacate the rule, remanding that decision for a lower court.
And, consequently, the justices provided no guidance on how the ruling will affect Clean Power Plan critics' primary legal argument that EPA doesn't have authority to issue the greenhouse gas standards because it already regulated power plants with the 2011 mercury rule.
Thomas Lorenzen, a former Justice Department environmental attorney now representing industry clients at Crowell & Moring, called the issue "very urgent."
Justice Antonin Scalia's majority opinion "doesn't address what the current status of MATS is," he said. "That's going to be a significant question that has profound implications" for the Clean Power Plan challenges.
The connection between the two regulations, which are pillars of President Obama's environmental agenda, is complicated.
Later this summer, EPA is scheduled to finalize the greenhouse gas limits for power plants. The standards, the most ambitious ever promulgated, are designed to cut carbon emissions by 30 percent by 2030 from 2005 levels, shifting the country from coal-based power to renewables and natural gas.
And EPA air chief Janet McCabe emphasized today that the agency will move forward with the Clean Power Plan as planned.
"The Administration remains committed to finalizing the Clean Power Plan this summer and yesterday's ruling will have no bearing on the effort to reduce carbon pollution from the largest sources of emissions," she said in a blog post.
The agency is promulgating the Clean Power Plan standards under Section 111(d) of the Clean Air Act.
But two versions of that section were signed into law, one from the Senate and one from the House. Critics of the plan, including utilities, coal companies and several states, contend that one version prohibits EPA from issuing standards under 111(d) for sources of pollution already covered by other regulations.
Critics of the Clean Power Plan claim EPA already regulated power plants with the mercury rule, so the agency lacks authority for the greenhouse gas rules (Greenwire, Dec. 16, 2014).
The other version of Section 111(d) prohibits only duplicative regulation of pollutants, and EPA and environmentalists contend both versions can be read to support the climate rule. So it is very unclear whether the industry argument will succeed.
The issue puts industry and challenging states in a precarious position that wasn't resolved by yesterday's Supreme Court ruling. If the mercury rule is vacated, one of their primary arguments against the greenhouse gas rule evaporates.
Speculation is already ramping up over what will happen next to the rule.
Technically, the rule should go back to the same three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that upheld the mercury rule in a 2-1 April 2014 ruling. Yesterday's Supreme Court ruling reversed that decision.
The panel will likely be quickly pressed to decide whether to vacate the rule while EPA reconsiders the cost issue. Vacating the rule could, in theory, help EPA with the inevitable challenges to the greenhouse gas regulations.
Paradoxically, if the court leaves the rule in place, that would bolster the industry Clean Power Plan arguments. That is particularly true because industry's mercury rule argument is a threshold issue -- meaning whether EPA has authority to issue the greenhouse gas limits in the first place. Industry challengers will want to make that argument when they ask the D.C. Circuit to immediately stay the climate rule after it is finalized.
Whether the D.C. Circuit vacates the rule is not a simple legal question.
Under the Administrative Procedure Act, a court is directed to vacate a rule that is deemed unlawful.
But there is precedent at the D.C. Circuit of the court leaving in place large environmental regulations that yield significant health benefits. For example, the court in 2011 left in place a George W. Bush-era EPA program to address air pollution that crosses state lines that it had previously found unlawful while it considered challenges to the Obama administration's more stringent version (Greenwire, Jan. 3, 2012).
The question will likely come down to the three-judge panel. Judge Judith Rogers, a Democratic appointee, sat on the cross-state air case as well, so she may be inclined to leave the mercury rule in place.
Judge Brett Kavanaugh, a Republican appointee, was also on the cross-state panel, but he dissented from the court's original mercury rule decision. He may, therefore, be inclined to follow a conservative reading of the Administrative Procedure Act and vacate the rule.
That leaves Chief Judge Merrick Garland, another Democratic appointee, who could be the decisionmaker on the issue, Lorenzen said.Timing could be key
There is also a complicated timing issue. Lorenzen said he thinks challengers to the Clean Power Plan will push for a resolution of whether the mercury rule is vacated quickly so they will have time to adjust their legal strategy for their challenges to the greenhouse gas rule.
But there is a good chance that even with an expedited review, Lorenzen said, they still won't have an answer on the vacateur question for months -- perhaps not in time to file their Clean Power Plan lawsuits.
Patrick Parenteau of Vermont Law School said the challengers to the greenhouse gas regime may be better off pushing to delay that rule's implementation.
"I could see industry tactically arguing, stay [the Clean Power Plan] until the [mercury rule] issue is sorted out," he said. That could, he said, prevent the Clean Power Plan from being completed before Obama leaves office in January 2017.
Suzanne Murray, a former EPA regional general counsel, countered that the agency's legal team could see "slow walking" the vacate issue as advantageous.
"There may be some benefits to the Clean Power Plan to letting this sit or be acted," said Murray, now a partner at the firm Haynes and Boone. "During that time, you have a vacuum. And during that time, it makes the Clean Power Plan easier to defend."
EPA may feel comfortable with that option, she said, because nearly 70 percent of the coal industry is already complying with the mercury rule.
Sean Donahue, a lawyer who frequently represents environmental groups in air cases, said he thinks EPA will be more aggressive than that.
"I expect and hope that EPA rolls up its sleeves instead of saying, 'We'll wait for what the D.C. Circuit tells us what the status of the rule is,'" he said. "That does have the potential to be dragged out."
He and Parenteau both said they think the rule will remain in place and won't be vacated.
But, Parenteau added, nothing is certain after the Supreme Court's ruling.
"It's a bit of a crapshoot," he said.
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Mercury Regs Ruling Emboldens Clean Power Plan Critics, But Few Changes Seen for Utilities
Jun 30, 2015 | E&E - Energywire
By Emily Holden, Jeffrey Tomich and Edward Klump
U.S. EPA critics heralded a Supreme Court decision yesterday that the agency should have considered the compliance costs of its mercury standards for coal plants, saying the ruling is proof that states should refuse to comply with the agency's Clean Power Plan until legal challenges play out.
"While much of the damage of this regulation has already been done, the ruling serves as a critical reminder to every governor contemplating the administration's demands to impose more regressive -- and likely illegal -- regulations that promise even more middle-class pain," said Senate Majority Leader Mitch McConnell (R-Ky.). "Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today."
Twenty-three states and various industry groups challenged the mercury rules, called the Mercury and Air Toxics Standards, or MATS. In a 5-4 decision, with the majority opinion written by Justice Antonin Scalia, the Supreme Court found EPA erred in not considering compliance costs of $9.6 billion in determining whether it was "appropriate and necessary" to regulate mercury emissions from power plants.
The court remanded the case to the U.S. Court of Appeals for the District of Columbia Circuit to reconsider whether to strike down the rule (Greenwire, June 29).
Opponents of the air regulations said the ruling could foreshadow how much deference the court will afford EPA in future cases.
Scott Segal, a utility industry lobbyist and partner at law firm Bracewell & Giuliani, said the opinion should serve as a warning as EPA prepares to release the final Clean Power Plan this summer.
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"Today the Supreme Court clearly had cautionary words for an agency that would proceed without due consideration of cost," Segal said. "These considerations should serve as important warnings to consider cost and reliability in a thorough manner before it finalizes its carbon rules."
But EPA said in a statement that the decision "was about how and when the Agency considered costs in its decision that mercury and air toxic emissions from power plants threaten public health and the environment, and not EPA's Clean Air Act authority to limit hazardous air pollutants."
The Sierra Club's managing attorney, Sanjay Narayan, backed that assessment, calling the decision a narrowly scoped ruling that won't affect other EPA regulations like the Clean Power Plan.
"The majority took some pains to be clear that this is just about a particular threshold finding," he said, "which basically involves a different portion of the Clean Air Act from the Clean Power Plan, different language than the Clean Power Plan, and different pollutants than the Clean Power Plan."
Narayan dismissed McConnell's argument that states should wait and see if carbon regulations are overturned by the courts before starting to write compliance plans.
"Despite this decision, EPA's record in front of the D.C. circuit and Supreme Court during this administration has actually been very strong. The courts have upheld their rules," Narayan said.Compliance already in motion
Nonetheless, McConnell is using the ruling to bolster his campaign for governors to "just say no" to the carbon rule.
The House last week passed legislation that would allow states to opt out of the carbon standards until court challenges are settled, but the White House will likely veto any legislative threat to the rule. Critics are instead counting on state resistance and legal attacks to hamper EPA's plans.
The Texas Public Policy Foundation, a frequent EPA critic, said the mercury ruling means "states should think long and hard before complying with the newest Clean Power Plan before it is fully litigated."
"While the EPA lost the case today, their rule has already caused damage to the economy, jobs, and cost of energy," said a statement from Doug Domenech, director of TPPF's Fueling Freedom Project.
A majority of the coal-fired units affected by the Mercury and Air Toxics Standards had already installed the appropriate controls, switched fuels or shut down before the rule's compliance date in April.
Many coal-fired units already had installed controls needed to comply with MATS in order to meet the requirements of other rules, according to a study by MJ Bradley & Associates. EIA predicted last year that more than 64 percent of coal capacity was already in compliance with MATS at the end of 2012, the study said.
Chris Van Atten, a senior vice president at MJ Bradley & Associates, said roughly half of the country's coal capacity -- 142 gigawatts -- applied for extensions to comply with MATS. The National Association of Clean Air Agencies in its own survey found that one-third of coal plants applied for extensions.
EPA expressed disappointment at the ruling but noted that the regulation "was issued more than three years ago [and] investments have been made and most plants are already well on their way to compliance."
The Sierra Club agreed that the ruling couldn't reverse decisions energy companies have already made to comply.
"Practically speaking, today's decision won't revive the fortunes of Big Coal or slow down our nation's transition to clean energy," said Mary Anne Hitt, director of Sierra Club's Beyond Coal Campaign. "Most utilities have long since made decisions about how to meet the standard. Only a few dozen coal plants are still operating today with no pollution controls for mercury and air toxics and no clear plans to install them."No imminent effects for utilities
Utilities were still reviewing the ruling yesterday, but several said they were already compliant with MATS and the decision would have no effect on their plans to shutter older coal-fired units.
The nation's investor-owned utilities are already "making significant strides in reducing mercury and other emissions" as they transition their generation fleets to clean electricity, said Quin Shea, vice president for environmental issues at the Edison Electric Institute.
"The court's decision will not change this trend, and positive progress will continue well into the future," he said.
"It is unclear what instructions the D.C. Circuit Court ultimately will give to EPA and what effect they will have on the MATS rule and its future implementation," Shea said.
The trade association for rural electric cooperatives, which rely predominantly on coal-fired generation, expressed satisfaction with the court's ruling and its focus on the cost of regulations.
"Today's ruling is a victory for a balanced approach to regulating the utility sector," said Jo Ann Emerson, CEO of the National Rural Electric Cooperative Association.
Clair Moeller, the Midcontinent Independent System Operator's executive vice president of transmission and technology, recently told a group of Midwestern utility regulators that 12,000 MW of coal-fired generation was expected to be retired because of the MATS rule. Of that, 11,000 MW has already been shut down.
The Electric Reliability Council of Texas (ERCOT), the state's main grid operator, said about a third of coal-fired capacity in its region was compliant with MATS when the rule went into effect. Another two-thirds received extensions, with some of that segment now compliant, according to Robbie Searcy, an ERCOT spokeswoman.
Houston-based Dynegy Inc., which owns more than 12,000 megawatts of coal-fired generation following acquisitions in recent years, said its entire fleet is MATS-compliant. The company hasn't closed any of its plants because of the MATS rule, nor does it have plans to, said spokesman Micah Hirschfield.
Likewise, Minneapolis-based Xcel hasn't shut down any plants because of MATS, nor did it plan to. The company said its entire generation fleet is MATS-complaint.
Jackson, Mich.-based Consumers Energy is planning to retire its "Classic 7" coal plants by April under a separate settlement with EPA and said the MATS ruling won't affect those plans.
"Even if the federal [MATS] rule does not take effect as scheduled, the state of Michigan has its own environmental rule which requires significant controls on mercury emissions from power plants," spokesman Dan Bishop said in a statement.
Entergy Corp., which has utility operations in parts of Louisiana, Arkansas, Mississippi and Texas, said "because the courts did not issue a stay on implementation when the MATS rule was originally challenged, Entergy began installing the mandated controls so as to meet the U.S. EPA's 2015 deadline for compliance. ... [A]ccordingly, as of June 2015, the installation of these controls is substantially complete at all three of our affected plants."
"This ruling enhances our view that customer costs always should be a factor as new environmental regulations are considered," said Ajay Arora, Ameren Corp.'s vice president of environmental services and generation resource planning.
Elena Craft, a senior health scientist with the Environmental Defense Fund in Austin, Texas, said it's important to understand that the Supreme Court's decision was narrow in scope. She suggested that an updated version of a cost analysis will bolster EPA's position on cost-effectiveness.
"This is not something where EPA is going back to the drawing board," Craft said in an interview. "This is not something where these standards are going to be vacated."
Environmental Defense Fund President Fred Krupp added that it's "critically important for our nation that these life-saving protections remain in place while EPA responds to the court's decision, and EDF will focus its efforts on ensuring these safeguards are intact."
Reporters Scott Detrow and Rod Kuckro contributed.
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Checklist Lays Out Legislative Questions for Officials Weighing Clean Power Plan
Jun 30, 2015 | E&E - Climatewire
By Emily Holden
The national organization that represents state lawmakers says if states want to work together to comply with the Clean Power Plan, coordinating with legislatures will be key.
State air agencies and environmental regulators will work with utility commissions and energy offices to submit plans for cutting carbon emissions under the rule, but state lawmakers will also need to be involved, according to the new section of a report written by the the National Conference of State Legislatures and released by the National Association of Regulatory Utility Commissioners.
"The role of state legislatures in this process is critical, even though it may not be obvious. ... Legislative action will likely be required to effectively meet Clean Power Plan requirements and to engage in multi-state compliance efforts," it notes.
Glen Anderson, energy program manager for NCSL, said the report is a "steppingstone" to conversations among regulators and lawmakers in different states. It includes an appendix with examples of related bills from various states.
Depending on a state's approach to the Clean Power Plan, lawmakers might need to enact substantial policies, like renewable portfolio standards. Or, he said, they might just need to outline how they are going to define credits or decide which states they might work with.
Some legislatures have also passed laws requiring that they review and approve state compliance plans. Others have limited the carbon reduction options available to regulators writing proposals -- making it difficult for neighboring states to coordinate with them (ClimateWire, April 10).
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NCSL's checklist says state officials should consider whether they have legislation in place enabling multi-state efforts, including to trade renewable energy credits or participate in cap-and-trade programs. The list asks whether those trading systems can be modified to count greenhouse gas reductions and whether they will comply with EPA's requirements for evaluating, measuring and verifying those reductions.
Research from the Cadmus Group for the Western Interstate Energy Board has explored using such systems to trade Clean Power Plan compliance credits (ClimateWire, May 4).
NCSL says state lawmakers may also want to adopt common definitions to allow them to trade reductions with other states, an idea that has been fleshed out by Duke University's Nicholas Institute (ClimateWire, March 17).
States should take a look at how they engage in regional activities, such as fulfilling Clean Air Act requirements, developing energy plans and conducting utility generation and transmission planning, NCSL said. They also should find out whether they need to designate authority to regulators to implement certain carbon-cutting programs.
Even states that don't work together should examine whether other states are being too lax about counting certain efforts toward compliance and making it harder for their neighbors to compete.Confusion holding back coordination
Many industry experts say states will save money if they reduce emissions as part of a broad multistate effort.
Anderson said lawmakers in some states have talked about multistate coordination, but they are in a "rudimentary stage" and are holding back because they aren't sure how it would work. Some believe states with easier goals might not want to coordinate with states that have tougher goals.
After the final rule comes out this summer, that will likely change, Anderson said. He thinks legislators will begin to understand both states could benefit from that sort of arrangement.
There may be a bit of a lull in how legislatures react though. Many of them will have already adjourned for the year when the rule drops, NCSL notes. , And next year, legislatures will not meet in four states -- Montana, Nevada, North Dakota and Texas -- and they will have limited sessions in six states -- Arkansas, Connecticut, Maine, New Mexico, North Carolina and Wyoming.
But that won't stop them from meeting and drafting legislation, Anderson said.
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For Now, Supreme Court's Mercury Ruling Preserves Challenges To ESPS
Jun 30, 2015 | InsideEPA
By Lee Logan
The Supreme Court's ruling remanding EPA's mercury rule for power plants to a lower court appears to have preserved -- for now -- critics' argument that the agency lacks threshold Clean Air Act authority to regulate greenhouse gas (GHG) emissions at existing power plants -- though some observers say that could change depending on how the lower court addresses the litigation.
Power industry and other sources say that litigants in the mercury rule case could seek surprise remedies that could change the legal posture in any upcoming litigation over the existing source performance standards (ESPS) for GHGs.
For example, one former Justice Department (DOJ) attorney says industry officials who might normally seek to vacate the mercury rule could instead seek to preserve the regulation in order to preserve future litigation against the ESPS. Conversely, EPA may seek to vacate the mercury rule in order to head off a key challenge to the ESPS.
“It's going to make for some very interesting bedfellows,” the source says.
EPA Administrator Gina McCarthy appeared to leave the agency's options open. She told reporters during a June 29 event in Washington, D.C., that it is important to note that “nothing has been vacated. The [mercury] rule still stands.”
McCarthy also sounded bullish on the eventual fate of the mercury rule, saying the court's ruling is “not a set-back, it's an extra step.” Noting that the rule has been implemented for three years, she added: “We feel very confident we can achieve these reductions and we already are, and it will continue.”
Even so, McCarthy acknowledged that the agency faces some uncertainty on the next steps for the mercury rule. “We don't know what work we'll have to do yet,” she said.
At issue is the high court's June 29 ruling in Michigan et al. v. EPA et al that the agency unreasonably declined to consider costs when determining it was “appropriate and necessary” to regulate the plants' mercury emissions.
While the court, in its 5-4 ruling, faulted the agency's interpretation of its statutory obligations, the justices did not vacate the rule, and instead remanded the litigation to the U.S. Court of Appeals for the District of Columbia Circuit “for further proceedings consistent with this opinion.”
That leaves the mercury and air toxics standards (MATS) rule in place for now -- though the D.C. Circuit could later decide to vacate the rule or simply remand it to EPA to address the flaw identified by the justices.
How the appellate court addresses the MATS regulation is important because the two rules are linked as a result of language in the air law that critics say bars EPA from regulating the power sector under Clean Air Act section 111, the section EPA is planning to use to craft its ESPS for GHGs, if it is already regulating that sector under section 112, which EPA used to regulate air toxics.
The critics charge that the “plain language” in section 111(d) prevents EPA from regulating power plants' GHG emissions if the agency already regulates the plants' air toxics emissions under section 112. They brought such challenges to the proposed version of the rule, though a federal appellate court held the suits were premature.
Overlapping Provisions
But the legal issue is complicated because House and Senate amendments to section 111(d) were never reconciled in a conference committee before the 1990 air act amendments were signed into law.
The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section, while the House language could be read as prohibiting EPA's rule because its exclusion is focused on source categories, not pollutants.
Given the rules' legal linkage, if the court opts for a remand, that would mean the power sector would technically remain regulated under section 112 -- and would preserve critics' ability to challenge EPA's GHG rule using that argument. But if the appellate court vacates the mercury rule, it would likely hamper critics' ability to make their arguments on this threshold issue.
The former DOJ attorney says the Supreme Court ruling's impact on EPA's ESPS remains “unanswered.” Although the court finding a flaw at such a fundamental stage of the mercury rulemaking process would traditionally suggest a vacatur, the source says that might not be the case this time.
“You might well see some who you would normally expect to be asking for vacatur of [the mercury rule] urging some caution, saying, 'Lets keep MATS in place while EPA does this analysis,'” the source says.
The source says that similar proceedings for EPA's cross-state air pollution rule following a high court decision took about nine months to resolve, though parties in this situation might seek expedited consideration due to the 111/112 issue, as well as to achieve regulatory certainty in the face of an April 2016 deadline for plants that received a year-long compliance extension under MATS.
Even if EPA is required to conduct a cost review for its “appropriate and necessary” finding, the task might not be as difficult as the initial review because many plants have already installed new pollution controls or decided to shut down, making it easier for the agency to justify the costs it would impose.
Similarly, a utility industry source says that the D.C. Circuit will entertain motions to proceed from parties in the litigation. “The thing here that's interesting is under normal circumstances you might envision . . . that the industry would come in and say the rule needs to be vacated until EPA reconsiders and the Justice Department would say no. But here you might find just the opposite. Here you might find the industry may think it's wise to leave this rule not vacated because that does not destroy the 111/112 argument.”
The source adds that industry and the administration might take “exactly the opposite position they would normally take if it wasn't for 111/112 issue. I don't know how it will play out.”
The former DOJ source says it is not clear where EPA will come down on vacatur. “To the extent they are concerned about the 111/112 argument, they may think to themselves that MATS is already baked into the mix,” the source says. “Maybe MATS isn't as important to them as the Clean Power Plan.”
But Jacob Hollinger, a former EPA Region 2 air official now at McDermott Will & Emery, downplayed prospects that the appellate court will remand the mercury rule. “There is the possibility, albeit a small one, that the D.C. Circuit will leave the mercury regulations in place on remand, giving EPA additional time to justify those regulations, rather than actually vacating the regulations."
But not all observers are as uncertain about the fate of the mercury rule. Richard Revesz, director of New York Law School's Institute for Policy Integrity and a supporter of EPA's regulations, says in a statement that it is “very likely that the mercury rule will ultimately be upheld, and that it will remain in place as the legal process continues.”
Revesz adds that a “remand without vacatur” is a common technique used by the D.C. Circuit, and that “there is good reason to use this technique here” because EPA already conducted a cost-benefit review for the rule that showed the benefits outweighed compliance costs.
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EPA Retains 'Affirmative Defense' In Consent Decree Despite SSM 'SIP Call'
Jun 30, 2015 | InsideEPA
By Stuart Parker
EPA in a proposed consent decree over a utility's alleged Clean Air Act violations includes an "affirmative defense" that will shield the company from civil liability for air law violations due to certain malfunctions, seemingly at odds with the agency's recent rule forcing states to remove affirmative defense provisions from their air quality plans.
"On the one hand, EPA does a lot of things to settle a case that they might not accept in a rulemaking -- that's because these consent decrees involve some bargaining and horse trading," says one environmentalist.
But the source is "surprised" to see the inclusion of the defense in the decree shortly after the agency released its rule to require the deletion of the defense from air law compliance plans known as state implementation plans (SIPs). The "SIP Call" rule issued May 22 will require 36 states to revise the plans and strike the language, and addresses federal appeals court rulings that found the defense -- and an earlier, related exemption for liability for emissions violations during startup, shutdown and malfunction (SSM) periods to be unlawful.
A Texas industry source says that the inclusion of the affirmative defense in the consent decree is surprising, but argues that such provisions are necessary given the difficulties in controlling emissions during malfunctions. The source suggests the decree was in the works before the EPA rulemaking, hence the inclusion of the defense.
The decree announced June 24 aims to resolve alleged air law violations at the Four Corners power plant, built on Navajo land in New Mexico and operated by utilities in that state, Texas and Arizona. The pact will require the plant to install pollution controls to reduce emissions of nitrogen oxides, sulfur dioxide and fine particulate matter.
The decree also binds some environmental groups including Din Citizens Against Ruining Our Environment, National Parks Conservation Association, To' Nizhoni Ani, and law firm Earthjustice to refrain from further litigation against the plant's owners, after the groups brought civil actions over alleged air law infractions. Those citizen suits prompted EPA's Clean Air Act enforcement action that resulted in the consent decree.
The decree further imposes a fine of $1.5 million, compliance reporting requirements and an obligation for the companies involved, including primary operator Arizona Public Service Company and also Public Service Company of New Mexico, to pay for environmental mitigation projects in the community.
According to a June 24 statement from the agency, such projects will use $6.7 million of mitigation funds on three types of projects, including cleaner heating systems that do not burn wood, weatherization of homes and a Health Care trust fund to address respiratory illness among residents of the Navajo Nation.
Affirmative Defense
But the decree also contains an affirmative defense provision, saying if any electric generating unit at the Four Corners plant "exceeds a unit-specific 30-Day Rolling Average Emission Rate or 30-Day Rolling Average Removal Efficiency due to Malfunction, Owner Defendants, bearing the burden of proof, have an affirmative defense to stipulated penalties under this Consent Decree if Owner Defendants satisfy the conditions and reporting requirements as approved by EPA" in its 2012 federal implementation plan (FIP) imposing air controls on the plant.
The plant's operators are obligated to report details of qualifying malfunction events to EPA -- though the decree does appear to try to limit the scope of the defense from other unrelated violations that might occur. "The affirmative defense provided herein is only an affirmative defense to stipulated penalties for violations of this Consent Decree, and not a defense to any civil or administrative action for injunctive relief," it says.
The environmentalist says the inclusion of such an affirmative defense in the decree is surprising, in the light of EPA's rule requiring states to remove similar affirmative defenses from their plans.
"I am surprised that EPA would agree to an affirmative defense for a limit based on a 30 day average. It would take a pretty severe malfunction to cause Four Corners to violate a 30 day standard -- that's because long term averaging gives units time to 'smooth out' emissions caused by short term" emissions spikes, the source says.
Still, the source notes the defense is based on requirements in EPA's FIP for the plant rather than a state-crafted SIP. If EPA's pushing to get these [affirmative defenses] out of state SIPs, they aren't going to be able to justify them in federal plans either. Sounds like we should take a look at that one," the source says.
Texas utility Luminant and allied industry groups have filed suit in the U.S. Court of Appeals for the 5th Circuit to challenge the SIP Call rule, among the first of what may be several challenges to the rule.
Luminant in the filing does not list its reasons for filing, but notes that the same SSM provisions at issue in the Texas SIP were upheld by the court in its 2012 opinion in Luminant v. EPA, subsequently reissued by the court in largely unchanged form in 2013. Luminant says EPA's rule therefore directly contravenes the court's holding.
Luminant argues that with respect to Texas, the rule is not "nationally applicable" or of "nationwide scope or effect," and therefore the suit belongs in the 5th Circuit.
The industry source says that many other industry groups or states may challenge the SIP Call with respect to its application in their state, in the applicable regional circuit court of appeals, rather than the D.C. Circuit.
Consent Decree
EPA's inclusion of an affirmative defense in the Four Corners consent decree simply "makes the case that all these companies are making," the source says, predicting that litigants may choose to cite it in cases they may bring against EPA. "I think you are going to see states filing in the circuits that apply to them," the source says.
The source says the SIP Call contradicts a basic principle of environmental regulation that has applied for decades, that states have had some discretion to excuse excess emissions during SSM periods.
Emissions limits were never intended to operate when emissions controls were either not operating or not operating as intended, the source argues. "You cannot run a facility that way," the source says.
Industry groups in litigation over various recent air rules, such as air toxics standards, have argued that EPA should have taken high emissions during SSM periods into account when setting emissions limits, but EPA consistently counters that it has no such obligation given the appellate rulings vacating such exemptions.
In a lawsuit filed June 12 with the D.C. Circuit, free-market advocacy group Southeastern Legal Foundation challenges the SIP Call rule, arguing that court is the proper venue as it hears suits challenging nationally-applicable rules. In prior comments to EPA on the proposed version of the SIP Call, the group claims EPA's interpretation that emissions controls must apply "on a continuous basis" is wrong, citing the 5th Circuit's opinion in Luminant v. EPA.
The industry source says that litigation is likely by environmental groups against states to ensure the SSM provisions are removed from SIPs, as states' eventual responses to the SIP Call could also be litigated.
For example, states may opt to issue "interpretive" letters to EPA clarifying their interpretation of SIP provisions rather than go through a time-consuming process of full-blown SIP revision, in order to makes "fixes or tweaks" to their plans. While environmentalists might attack a process that stops short of formal SIP revision, from the state perspective, "it is not so much the process . . . it is what is the fix?" the industry source says.
Environmentalists are already petitioning EPA to scrap what they say are unlawful SSM exemptions that Texas granted to 19 power plants in the state under its SIP. The groups, including Environmental Integrity Project, Air Alliance Houston and Environment Texas in their May 27 petition call on EPA to ensure Texas revised its SIP to remove the SSM provisions within two years, or to step in and directly regulate the plants under a FIP.
Future Litigation
Meanwhile, a recent court ruling in Ohio might have some bearing on civil litigants' rights to file future claims in instances where industry has entered into a consent decree with EPA, where the decree covers some but not all of the issues raised by environmental groups in their lawsuit against coke-producing facilities.
In its June 17 ruling in Graff v. Haverhill N. Coke Co., the U.S. District Court for the Southern District of Ohio found that a consent decree reached by EPA and industry in a separate case does not preclude all environmentalists' claims. The separate case, U.S. v. Gateway Energy & Coke Co., LLC, in the U.S. District Court for the Southern District of Illinois, involved some of the same facilities and defendants at issue in Graff.
Citizens in Graff may continue to bring certain claims for violations of limits on opacity -- a measure of smokestack pollution -- operational standards, regulations requiring visual inspection of coke ovens and other specific air permit requirements, according to the ruling.
The decision addressed the principle of res judicata, which typically holds that issues covered by an enforcement action brought by the government cannot be re-litigated elsewhere.
The Graff court held that citizens may continue to bring claims that do not relate to matters specifically addressed by a consent decree involving the same industry defendant.
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27 States Challenge Obama Water Rule in Court
Jun 30, 2015 | The Hill - E2 Wire
By Timothy Cama
Nine states sued the Obama administration Tuesday over its rule asserting power over small waterways like streams and wetlands, bringing the total number of states challenging the regulation to 27.
The lawsuit filed in a Savannah, Ga., federal court by state leaders in South Carolina and other states follows a trio of cases filed Monday by 18 other states.
The states in Tuesday’s lawsuit argue, similarly to those in the other cases, that the Environmental Protection Agency (EPA) violated the Clean Water Act, other laws and Supreme Court decisions when it declared that tributaries and other small waters are subject to federal jurisdiction and pollution control laws.
“The results of this rule will carry a tremendous cost to our state, our economy, and our families,” South Carolina Attorney General Alan Wilson said in a Tuesday statement.
“The EPA’s proposed expansion would bring many roadside ditches, small ponds on family farms, water features on golf courses, and storm water systems under extremely burdensome federal regulation,” he said.
The states joining South Carolina are West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, Utah and Wisconsin.
The EPA and the Army Corps of Engineers announced the final rule last month, with the goal of better clarifying which small water bodies like ponds, headwater and wetlands fall under federal power, a designation that could require permits for anything that harms or pollutes the water.
While the Clean Water Act gives federal officials power over navigable waters, the government has long recognized that a certain amount of upstream water must also be covered to protect the larger features.
The rule, dubbed “waters of the United States,” was published Monday in the Federal Register, a step that both made it official and opened it up for litigation.
Since they’re challenging the same regulation, the federal court system is likely to combine all four lawsuits into one.
Monday’s lawsuits came from Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Wyoming, Ohio, Michigan, Texas, Mississippi and Louisiana.
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9 More States Sue Obama Admin Over Hot-Button Rule
Jun 30, 2015 | E&E - Greenwire
By Annie Snider
Nine more states today sued the Obama administration over its controversial water rule, bringing the total to 27 states now challenging the effort to expand the number of streams and wetlands that receive automatic protection under the Clean Water Act following two muddled Supreme Court decisions.
The latest lawsuit was filed by the attorneys general of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin. It was filed in U.S. District Court for the Southern District of Georgia.
The suit argues that the Waters of the U.S. rule violates the Clean Water Act, the Constitution and the Administrative Procedure Act.
"This case involves an attempt by two agencies of the federal government to usurp the States' primary responsibility for the management, protection, and care of intrastate waters and lands," the suit says.
The case follows three multistate suits filed yesterday, the first day that court challenges could be lodged against the rule (Greenwire, June 5). Many more lawsuits, including from industry groups, are expected in the coming days.
All but three of the attorneys general suing so far are Republican. The three Democrats are from Kentucky, Missouri and Mississippi. New Mexico’s Environment Department and Office of State Engineer -- both overseen by Republican Gov. Susana Martinez -- signed on to one suit, although its Democratic attorney general did not.
Unlike the Clean Air Act, which requires that challenges be filed at the U.S. Court of Appeals for the District of Columbia Circuit, the Clean Water Act allows challenges to be filed in federal district courts across the country. (In some cases, challenges can be filed directly to appeals courts, but those cases are limited.)
That means challengers are carefully choosing districts that might be sympathetic to their position, also knowing that cases could be consolidated down the road.
So far, challenges have been filed in the Southern District of Georgia, the District of North Dakota, the Southern District of Ohio, the Southern District of Texas and the 5th U.S. Circuit Court of Appeals -- the last a dual filing.
Although U.S. EPA won't directly comment on active lawsuits, an agency spokeswoman yesterday defended the water rule and the process by which it was developed.
"In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over 1 million public comments, and listened carefully to perspectives from all sides," spokeswoman Monica Lee said by email. "EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies."
Click here for the nine-state lawsuit.
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N.Y. Makes Fracking Ban Official as Industry Mulls Lawsuits
Jun 30, 2015 | E&E - Energywire
By Colin Sullivan
New York regulators yesterday released their legal justification for banning the drilling method known as high-volume hydraulic fracturing, or fracking, possibly setting the stage for lawsuits challenging the prohibition.
With natural gas development now indefinitely stalled in upstate regions of the Marcellus and Utica shales, the state Department of Environmental Conservation pitched thedocument as its final say on the matter, but that seems unlikely given the reaction from industry attorneys and pro-fracking interest groups.
The DEC justified the ban in a 43-page findings statement that summarizes a seven-year review of the drilling technique, which has been widely used to spur a gas boom in the United States.
Despite the widespread use, DEC Commissioner Joe Martens defended the ban as the "only reasonable alternative" in an attached statement, arguing that fracking "poses significant adverse impacts to land, air, water, natural resources and potential significant public health impacts that cannot be adequately mitigated."
"This decision is consistent with DEC's mission to conserve, improve and protect our state's natural resources, and to enhance the health, safety and welfare of the people of the state," he said.
Crucially, the findings statement hangs its argument on public health concerns, as well as environmental. The DEC claims it had no option but to block development after the state Department of Health's Public Health Review concluded there was "considerable uncertainty as to potential health impacts" from fracking operations.
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"Consequently, and due to the limited economic and social benefits that would be derived from [fracking], the no-action alternative is the only reasonable alternative consistent with social, economic and other essential considerations," the findings document concluded.
The Marcellus Shale would have been the primary area to develop in the state as it extends from Ohio and West Virginia into Pennsylvania and western New York. Deeper deposits in Utica Shale regions were also identified as a possible resource, in addition to some "low-permeability reservoirs," the document said.
On environmental grounds, concerns about upstate water aquifers were cited throughout the document given the chemical additives that would be injected into the ground. The statement also cited industrialization in Pennsylvania as "intense" activity that raised "additional concerns relating to air quality, truck traffic, noise habitat, cultural, historic and natural resources, agriculture, community character and socioeconomics."
On health, the document noted concerns about respiratory disease due to increased levels of particulate matter, ozone, diesel exhaust and volatile organic compounds. It also cited the migration of methane or chemicals into drinking water sources, as well as the likelihood of surface spills, earthquakes and changes to "community character" associated with industrialization.
The New York Department of Health "found that there are continuing and unfinished studies to amass more scientific information to better understand likely health risks and outcomes," the document said, noting ongoing studies by the National Institutes of Health, the National Science Foundation and U.S. EPA about public health issues related to fracking.
"Until the science provides sufficient information to determine the level of risk to public health ... to all New Yorkers, and whether the risks can be adequately managed ... [fracking] should not proceed in New York state," the document said.Target for lawsuits
Landowners and energy industry interests have been threatening to sue ever since the ban was announced in December, and this document will be their target when and if lawsuits are filed. Thomas West, an attorney who has represented energy companies with the West Firm in Albany, offered an extensive review starting with the conclusion that the findings statement "is an exercise in contradictions" -- though he did not commit to challenging it just yet.
West pointed to "significant legal and factual errors" and said the document "puts New York state at odds with the energy policy of the Obama administration, the findings of the Environmental Protection Agency, which determined that high-volume hydraulic fracturing can be done safely if properly regulated, and virtually every other state in this country."
"Much of the document is spent refuting the two prior drafts issued by the [DEC] that confirm that high-volume hydraulic fracturing can be done safely if properly regulated," he wrote in an email. "Most surprisingly, the document runs roughshod on the legal obligations of the department 'to authorize and provide for the operation and development of oil and gas properties in such a manner that greater ultimate recovery of oil and gas may be had' and to protect the 'correlative rights' of landowners."
West added that the DEC "never acknowledges these legal responsibilities and misconstrues the term 'waste' in the process. Once again, the landowners of the Southern Tier are the true losers, since they no longer can develop their correlative rights and they cannot trust this administration."
West did not, however, commit his own services to any lawsuits, saying "there have been discussions" but for now there remains too much uncertainty to see what will happen next. That comes after the head of a prominent landowners group in May told EnergyWire the organization did not have enough money to pursue legal action (EnergyWire, May 18).
Karen Moreau, executive director of API New York, offered a similar view.
"API has been reviewing the voluminous legal record thus far and will analyze this final document in order to determine the proper course of action," she said.
Environmental groups, in the meantime, were jubilant and cast the legal rationale as a watershed moment for resource protection in the Empire State.
Kate Hudson, director of Riverkeeper's cross watershed Hudson River initiatives, noted that the DEC had concluded that even a stringent regulatory program could not guarantee that impacts to land, air and health would be adequately mitigated.
Hudson said, "This day will go down as one of the most important in New York's history, when we witnessed our state government confirm that protecting the health and safety of all New Yorkers was the highest priority and would not be compromised for the interests of the oil and gas industry."
Ramsay Adams, president of Catskill Mountainkeeper, said normal upstate citizens made all the difference in what many view as a landmark victory for the environmental movement in the United States.
"The prevailing wisdom: There is too much money in the state's Marcellus Shale to achieve an outright ban," he said. "We proved them wrong."
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