Preview Newsletter
acc am aug 11
-
Sterilant Causes Cancer, Ammonia Harms Lungs, Board Says
Aug 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A chemical used to sterilize medical equipment and spices can cause leukemia, breast and other cancers while ammonia can damage lungs, a panel of scientists advising the Environmental Protection Agency confirmed. The Science Advisory Board (SAB) has issued critiques of a draft Integrated Risk Information System (IRIS)... -
CDC Seeks Environmental, Public Health Experts
Aug 11, 2015 | BNA Daily Environment Report
Toxicologists, epidemiologists, public health specialists, risk assessors and other health-care and scientific experts are being sought to advise an environmental health division of the Centers for Disease Prevention and Control. The advisers would serve on the Board of Scientific Counselors that advises the CDC's National Center... -
Plastic Pipe Proposal Draws Industry Concern
Aug 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Several pipeline companies and associations called for a federal agency to remove from a rule proposed in May requirements intended to improve natural gas transmission and distribution systems operators' ability to locate and track plastic pipe. Many industry members, including the America... -
EPA Faces Unclear Superfund Liability For Colorado Mine Wastewater Spill
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA is facing a lawsuit from at least one tribe as well as potential legal action by states after an agency cleanup crew caused the release of about 3 million gallons of contaminated wastewater during work at a contaminated mine site in Colorado, but it is unclear whether EPA can be held liable for the spill under the waste law. -
EPA Estimates Colorado Mine Release at 3 Million Gallons
Aug 11, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Environmental Protection Agency says the release of toxic mine waste into the Animas River in southwest Colorado is estimated to be 3 million gallons—three times as large as initially thought. The EPA Region 8 office in Denver said Aug. 9 it is working with the Agency for Toxic Substance and Disease Registry... -
Colo. Governor Declares Emergency For EPA Spill
Aug 10, 2015 | E&E News PM
By Jennifer Yachnin
Colorado Gov. John Hickenlooper (D) declared a state of disaster emergency today following the release of 3 million gallons of wastewater into the system that feeds Colorado's Animas River, releasing up to $500,000 in funding to address research into and fallout from the spill. -
(ACC Mentioned) What’s In and What’s Out: The Finalized Clean Power Plan rule
Aug 11, 2015 | Hellenic Shipping News
On Monday, August 3rd, US Environmental Protection Agency (EPA) announced the final language of their Clean Power Plan. Originally proposed in June 2014, the EPA fielded over four million comments during the open-comment period. The result of this multi month effort is a final rule that still aims to reduce the power sector’s carbon emissions... -
Shell Pushes To Drill Deeper With 'Fearless' Leader At Helm
Aug 10, 2015 | E&E News PM
Royal Dutch Shell PLC is urging federal regulators to lift restrictions on drilling deeper than 3,000 feet below the Chukchi Sea as it continues its controversial Arctic exploration. The Department of the Interior's Bureau of Safety and Environmental Enforcement had held up deeper exploration until... -
Why Shell Cut Ties to Conservative Lobby Group Over Climate Change
Aug 10, 2015 | Bloomberg
By Paul Barrett
Does it matter that Royal Dutch Shell plans to cut ties to the American Legislative Exchange Council (ALEC) over climate policy? Shell follows big oil rival BP and Silicon Valley titans Google, Facebook, and Yahoo in distancing itself from ALEC, a prominent nonprofit that advocates... -
The Third Fossil Fuel In The Climate Conversation
Aug 10, 2015 | The Hill - Congress Blog
By Deborah Gordon
President Obama’s Clean Power Plan is a significant step in the right direction to combat climate change. The coal and natural gas fueling the nation’s electricity grid have vastly different implications for a warming world than do renewables. Addressing these two fossil fuels climate footprints is an imperative. -
Controversial EPA plan presents opportunity for natural gas, renewables growth
Aug 10, 2015 | The Chicago Tribune
By Christin Nance Lazerus
The Environmental Protection Agency's Clean Power Plan represents both a challenge and an opportunity for the state, depending on a person's view of the EPA. Gov. Mike Pence and other politicians have largely panned the plan, even threatening to refuse to comply with it, while environmental activists say it represents a real shot in the arm... -
Clean Power Plan Extensions Have Catch: Outreach
Aug 11, 2015 | BNA Daily Environment Report
By Andrew Childers and Rachel Leven
States seeking additional time to develop compliance strategies for the Environmental Protection Agency's Clean Power Plan must first show that they have engaged with minority and at-risk populations. The Clean Power Plan (RIN 2060-AR33), issued Aug. 3, establishes three criteria for states seeking an additional... -
Virginia House Speaker Backs Power Plant Review Bill
Aug 11, 2015 | BNA Daily Environment Report
Legislation will be introduced for the 2016 Virginia General Assembly session that would require legislative approval of the Virginia executive branch's plan for complying with the Environmental Protection Agency's Clean Power Plan (RIN 2060-AR33), Virginia House of Delegates Speaker Bill Howell (R) announced Aug. 10. -
EPA to Propose De Minimis Permit Threshold in 2016
Aug 11, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency plans to propose a de minimis threshold for its greenhouse gas permitting program in June 2016 after a federal appellate court denied industry groups' petitions to rehear lawsuits over the program. The U.S. Court of Appeals for the District of Columbia Circuit... -
EPA Orders More Air Quality Tests For Homes Near Superfund Sites
Aug 9, 2015 | LA Times
By Tony Barboza
The U.S. Environmental Protection Agency has ordered a new round of air quality tests for a South Bay neighborhood after detecting a variety of contaminants inside homes near two federal cleanup sites. The EPA sampled 107 homes near the Del Amo and Montrose Superfund sites earlier this year under pressure from ... -
EPA Moves To Fix Air Pollution Rule After Supreme Court Loss
Aug 10, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is planning to fix by this spring the problem that caused the Supreme Court to rule against its major air pollution regulation in July.The EPA told a lower court on Monday that it is formulating a plan to conduct cost-benefit analysis as part of a revision of its finding that the mercury... -
EPA Outlines Plan For Utility MACT Remand In Opposition To Stay Request
Aug 10, 2015 | InsideEPA
By Stuart Parker
EPA says it plans to meet a self-imposed spring deadline for crafting a new assessment of the costs associated with its finding that a utility air toxics rule is “appropriate and necessary,” detailing the schedule in a legal filing that objects to a power company's request for an appellate court to issue an emergency stay of the rule. -
EPA to Address Supreme Court MATS Ruling by Spring 2016
Aug 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency intends to address a recent ruling by the U.S. Supreme Court on the legality of the mercury and air toxics standards by spring 2016, the agency told a federal appeals court Aug. 10 (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, opposition filed 8/10/15). -
EPA Means To Finish Reconsideration Of Mercury Rule By April 2016
Aug 10, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA today told a federal court that it aims to move forward with an update to its mercury rule by April 2016. The Supreme Court in June ruled that the agency was wrong to not consider costs early in the rulemaking process as part of determining whether a regulation is "appropriate and necessary." -
Court Upholds Approval of Illinois Emissions Program
Aug 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency did not act in an arbitrary or a capricious manner when it approved a revised motor vehicle emissions testing program in Illinois, a federal appeals court ruled (Indiana v. EPA, 2015 BL 254652, 7th Cir., No. 14-3214, 8/7/15). The U.S. Court of Appeals for the Seventh...
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
Full Text of Stories Below
-
Sterilant Causes Cancer, Ammonia Harms Lungs, Board Says
Aug 11, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A chemical used to sterilize medical equipment and spices can cause leukemia, breast and other cancers while ammonia can damage lungs, a panel of scientists advising the Environmental Protection Agency confirmed.
The Science Advisory Board (SAB) has issued critiques of a draft Integrated Risk Information System (IRIS) assessment the EPA conducted for inhaled ethylene oxide, a sterilant and chemical that makes antifreeze, and a draft assessment the agency completed for ammonia, which occurs naturally in the environment but also is used as a fertilizer.
BASF Corp., Dow Chemical Co. and Eastman Chemical Co. are among the companies that made more than 5 billion pounds of ethylene oxide (EtO; CAS No. 75-21-8) in or imported it into the U.S. in 2011, the most recent year for which chemical manufacturers had to submit production figures to the EPA.
American Electric Power (AEP) Service Corp., Duke Energy Corp. and Koch Industries Inc. are among the companies that made more than 38 billion pounds of ammonia (CAS No. 7664-41-7) in or imported it into the U.S. that same year.
IRIS assessments, called toxicological reviews, provide information for the first two parts of a risk assessment. They describe health hazards of chemicals and the doses at which such hazards could manifest. Federal, state and private-sector risk assessors combine the hazard and dose-response information with exposure data to estimate the particular risks in a situation or scenario and determine whether regulation or other controls are needed.
Both SAB critiques support the EPA's key draft findings about each chemical.
The board also offered recommendations to make each toxicological review more precise and easier to understand.
Evidence on Ethylene Oxide May Be Stronger
The EPA's draft analysis of ethylene oxide, which concluded the chemical could cause leukemia, non-Hodgkin lymphoma, breast and other cancers, sparked the most comments during the SAB's Chemical Assessment Advisory Committee review.
Although the EPA's draft analysis would not have a direct regulatory outcome, medical device sterilization companies said the conclusion would cause health professionals to switch to less effective, impractical alternatives with significant adverse public health consequences (221 DEN A-5, 11/17/14).
The EPA's Science Advisory Board, however, said the scientific data supporting the agency's conclusions may even be stronger than the agency's analysis suggested.
A Swedish sterilization worker study may provide further support for the conclusion that breast cancer is a potential hazard that can result from ethylene oxide exposure, the board said in its Aug. 7 report.
The SAB agreed with the agency that ethylene oxide mutates DNA, meaning exposures that occur earlier in life increase the risk of cancer later in life more than adult exposures would.
The board also agreed with the agency's conclusion that there would be no safe dose, meaning any exposure to the sterilant could increase the risk of cancer.
Ammonia Can Harm Respiration
Regarding ammonia, the board agreed with the EPA that inadequate information is available to determine whether ammonia may cause cancer. The board also agreed with the EPA regarding respiratory effects of ammonia.
“The scientific evidence is sufficiently robust to support the conclusion that ammonia induces significant respiratory effects in humans and animals,” the board said in its Aug. 6 report.
Workers and other populations inhaling ammonia cough, wheeze and have decreased lung function among other effects, the agency found.
Based on scientific studies, the agency concluded people could experience respiratory problems if they inhaled daily concentrations greater than 0.3 milligram of ammonia per cubic meter of air throughout their lives.
-
CDC Seeks Environmental, Public Health Experts
Aug 11, 2015 | BNA Daily Environment Report
Toxicologists, epidemiologists, public health specialists, risk assessors and other health-care and scientific experts are being sought to advise an environmental health division of the Centers for Disease Prevention and Control. The advisers would serve on the Board of Scientific Counselors that advises the CDC's National Center tor Environmental Health/Agency for Toxic Substances Control Act (NCEH/ATSDR). Nominations should be sent to the CDC by Sept. 15. Details are available in a Federal Register notice scheduled for Aug. 11 publication. A prepublication copy of the notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-19675.pdf.
-
Plastic Pipe Proposal Draws Industry Concern
Aug 11, 2015 | BNA Daily Environment Report
By Rachel Leven
Several pipeline companies and associations called for a federal agency to remove from a rule proposed in May requirements intended to improve natural gas transmission and distribution systems operators' ability to locate and track plastic pipe.
Many industry members, including the American Gas Association, were generally supportive of the Pipeline and Hazardous Materials Safety Administration's plastic pipe proposal, which also updated mechanical fitting requirements and responded to industry petitions.
The proposal is intended to lower the risk of leaks, clarify rules and lower industry compliance costs, among other benefits, according to PHMSA. The comment deadline for the proposed rule (RIN 2137–AE93) was July 31; however, comments were still being posted to the appropriate docket, Docket No. PHMSA-2014-0098, on Aug. 10 (98 DEN A-13, 5/21/15).
The American Gas Association, the American Public Gas Association, the Northeast Gas Association and the National Fuel Gas Distribution Corp. were among the numerous groups to request that tracking and traceability requirements be removed from the proposal.
Tracking, Traceability
The requirements were intended by PHMSA to improve the accuracy and speed for operators when attempting to identify parts in their systems that were recalled or when conducting failure investigations.
Many groups cited their support for comments by the American Gas Association on this issue. In those comments, the association said research on tracking and traceability is still “in its infancy” and recommended that when PHMSA conducts a rulemaking on this issue, it apply one rulemaking across the plastic and steel materials industries and create a task force group with industry to help phase in these provisions.
The association emphasized the potential costs for its member companies to implement and then keep up with this type of rulemaking. One AGA member company would have to pay roughly $18.8 million to implement it, with an additional annual cost of $3.3 million. The American Public Gas Association said that roughly 600 small utilities would be significantly burdened, due to installation of Geographic Information System or other tools needed for these requirements.
“The challenges for implementation [of proposed tracking and traceability requirements] remain numerous and uncertain and can therefore not be considered non-significant at this time,” the American Gas Association said in its comments dated July 23. “Removing this portion of the proposed rule would allow PHMSA to move forward on the remainder of the items found within the Plastic Pipe Rule.”
Concerns, Clarifications
Pipeline industry members also expressed concern regarding several provisions of the proposed plastic pipe rule. One example is a requirement that would affect when a pipe or component should be repaired or removed.
Many, including the Plastic Pipe Institute in comments loaded to the docket Aug. 10, noted support for a requirement that would increase the “design factor” for certain polyethylene pipe, but encouraged the agency to consider making the change applicable to pipes larger than the 12-inch size limitation that the institute said “appears arbitrary.”
The American Gas Association and others also called for clarification of several provisions including one that would move to limit use of mechanical leak-repair clamps as a permanent repair solution to ensure it wouldn't apply retroactively.
“Such a requirement would divert significant resources away from higher risks on the pipeline systems,” the Northeast Gas Association said in its comments dated July 31.
Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-language:AR-SA;}
-
EPA Faces Unclear Superfund Liability For Colorado Mine Wastewater Spill
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA is facing a lawsuit from at least one tribe as well as potential legal action by states after an agency cleanup crew caused the release of about 3 million gallons of contaminated wastewater during work at a contaminated mine site in Colorado, but it is unclear whether EPA can be held liable for the spill under the waste law.
Attorneys familiar with cleanup law say that EPA will likely be sued for both natural resource damages and response damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, which would address both environmental harms from the spill and the cost of addressing drinking water contamination and other short-term issues respectively.
But the attorneys say that since CERCLA includes broad protections against liability for EPA when it performs a site cleanup, such suits face uncertain prospects -- and the litigation could set an important precedent on the issue.
Depending on the section of CERCLA the plaintiffs invoke, they might be required to show that EPA's conduct was either tantamount to that of a facility operator rather than a cleanup crew, or that it was provably negligent.
“I am not aware of a case as egregious as this, but I don't know if EPA was negligent. We don't know enough about the facts of the case to know if they did something stupid, or if it was that they were stuck with a mine that was a ticking time bomb. . . . I wouldn't close the door on it, certainly,” says a Colorado environmentalist attorney.
Navajo Nation president Russell Begaye is already vowing that his government “will hold EPA accountable” for the Aug. 5 wastewater spill from Colorado's Gold King Mine into Colorado, New Mexico and Navajo waters.
State officials have not yet publicly said what legal measures they will take in response to the release, but they could potentially also pursue litigation. The spill was caused by an EPA team “working to investigate and address contamination” at the site, according to an EPA statement posted to its website Aug. 9.
“I have instructed Navajo Nation Department of Justice to take immediate action against the EPA to the fullest extent of the law to protect Navajo families and resources,” Begaye said in an Aug. 9 statement.
According to EPA's statement on the spill, the agency's cleanup team inadvertently caused the release of pent-up wastewater that had been held in the mine by “unconsolidated debris near an abandoned mine portal,” but exactly how the incident began has not yet been determined.
CERCLA Liability
CERCLA section 119 exempts cleanup crews, including contractors and government employees, from most liability for releases that come as a result of cleanup efforts in order to avoid discouraging site cleanups.
But courts have allowed suits under that section when the workers' actions amount to a “new release” rather than a cleanup of existing contamination, an industry attorney who focuses on environmental law told Inside EPA.
“There's some 9th Circuit case law and one or two district court provisions that construe the immunity provision and suggest that cleanup crews can be considered 'operators' in that situation,” the attorney says.
Under that provision, the attorney continues, “I think EPA or EPA's contractor has some very serious liability concerns here” as a result of the spill.
In addition, section 107, which covers government agencies' immunity from litigation as institutions, says the agency can be sued in situations where it acts negligently, which could also cover the Gold King Mine spill.
Key to that consideration could be how closely the workers at the mine followed government reference documents, such as the National Contingency Plan (NCP), which sets out procedures for EPA and other agencies to deal with environmental contamination. Section 107 says agencies are protected from liability when they act in accordance with the NCP but not when they are negligent -- but does not specifically say that an agency that follows the NCP cannot be considered negligent.
The industry attorney says that since the NCP is a general document rather than a step-by-step guide to dealing with specific kinds of cleanup efforts, it is unclear how effective it would be as a defense.
“I'm not sure a contractor's argument that they followed the NCP, in itself, would be an absolute defense to a negligence argument,” the attorney says.
States' Actions
In addition to the Navajo Nation's promised legal action, both attorneys say it is at least possible that Colorado and New Mexico, the two states that have seen environmental impacts from the spill so far, could also bring suit against the agency for environmental and other damages.
But the environmentalist attorney says that even though both states have historically been aggressive in taking action against federal sites under CERCLA, they might be hesitant to sue EPA directly.
“Even though this is a federal actor, it's a federal actor who gives the states money to run their environmental programs. If it were the Army or [the Department of Energy (DOE)], maybe, but they're used to having EPA more or less on the same side. They would not be in the same category as a federal polluter,” the attorney says.
State regulators could also be wary of discouraging EPA from using federal resources to investigate and clean up disused mines for fear of legal action.
“I don't think the state would want to discourage EPA from taking over mining sites in the future. It doesn't seem like a good policy perspective to me, regardless of the law.” Also unclear is whether the waterbodies contaminated by the spill will be added to the National Priorities List for designation as Superfund cleanup sites. “That's a conversation that is ongoing,” EPA Region 8 Administrator Ron Curry said on an Aug. 10 press call about the spill response.
-
EPA Estimates Colorado Mine Release at 3 Million Gallons
Aug 11, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Environmental Protection Agency says the release of toxic mine waste into the Animas River in southwest Colorado is estimated to be 3 million gallons—three times as large as initially thought.
The EPA Region 8 office in Denver said Aug. 9 it is working with the Agency for Toxic Substance and Disease Registry, in addition to other federal and state agencies, to determine the extent to which private drinking wells and wildlife are threatened by the spill, which has turned the Animas River orange.
EPA investigators triggered the spill Aug. 5 while working to address toxic mining waste at the Gold King Mine in the upper portions of Cement Creek near Silverton, Colo. (153 DEN A-3, 8/10/15).
The wastewater that was released was held behind unconsolidated debris near an abandoned mine portal. Several workers were on-site at the time, and were unharmed, the agency said.
The Animas flows into the San Juan River in New Mexico, which empties into the Colorado River at Lake Powell in Utah. As of Aug. 8, the orange-tainted plume was moving at about 4 miles per hour and had reached the confluence of the San Juan. It was visually diluted, and its leading edge was far less defined, the EPA said.
Contaminants in River
The EPA has released a detailed data table of the sampling in Cement Creek and upper portions of the Animas River from Aug. 5 and Aug. 6. The data table contains a list of analyzed constituents, largely metals, and their numeric value in micrograms per liter, which is equal to parts per billion, or ppb. Constituents of the spill include contaminants such as aluminum, arsenic, barium, cadmium, calcium, copper, lead, manganese, selenium and zinc, the EPA said.
At a news conference Aug. 10, Shaun McGrath, administrator in EPA's Region 8 office, said the agency does not anticipate deciding when access to the river would be restored until Aug. 17.
“Until notified otherwise, we are asking everyone to abide by existing closures,” he said.
Drinking Water Systems
Several public drinking water systems in Colorado and New Mexico had shut off intakes to prevent the tainted water from entering into their systems. McGrath said two systems in New Mexico and two in Colorado were “closed in.”
McGrath said the EPA did not have an estimate of the number of people affected by the spill.
Also on Aug. 10, Colorado Gov. John Hickenlooper (D) declared a state of disaster emergency because of the Gold King Mine release and issued an executive order allocating $500,000 from the state's Disaster Emergency Fund to pay for the response and technical assessments.
The Colorado Department of Public Health and Environment will continue to assist the EPA in water quality sampling, assessing potential impacts on people and the environment, and advising local health officials as to when the water is safe to use, he said.
Wildlife and Fish Impacts
Meanwhile, the Department of Natural Resources is assessing potential impacts on fish and aquatic life, notifying downstream water diverters and users, and providing technical assistance to the EPA as they look at a long-term fix for the mine site, Hickenlooper said.
The release's path flows through three states and three of the EPA's regions, including parts of the Southern Ute tribal lands and the Navajo nation. The EPA said a claims process exists for compensating citizens who suffer personal injury or property damage caused by federal government actions.
House Science, Space, and Technology Committee Chairman Lamar Smith (R-Texas) on Aug. 10 asked for more information about the incident.
“It has been five days since the spill and the EPA has failed to answer important questions, including whether the polluted water poses health risks to humans or animals,” Smith said. “It is concerning that the agency charged with ensuring that the nation's waters are clean is reportedly responsible for the toxic water spill at Gold King Mine.”
He said it was imperative “that the EPA quickly take steps to repair the damage from this spill.”
-
Colo. Governor Declares Emergency For EPA Spill
Aug 10, 2015 | E&E News PM
By Jennifer Yachnin
Colorado Gov. John Hickenlooper (D) declared a state of disaster emergency today following the release of 3 million gallons of wastewater into the system that feeds Colorado's Animas River, releasing up to $500,000 in funding to address research into and fallout from the spill.
A U.S. EPA team investigating mining contamination last week at the Gold King Mine north of Silverton in San Juan County accidentally triggered the wastewater ejection that flooded Cement Creek with water contaminated with arsenic and other heavy metals.
In the days since, a mustard-colored plume of water has traveled more than 100 miles to the New Mexico border and is expected to contaminate Lake Powell, the San Juan River and the Colorado River.
"Our priority remains to ensure public safety and minimize environmental impacts," Hickenlooper said in a statement. "By declaring a disaster emergency, we are able to better support impacted businesses and communities with state resources. We will work closely with the EPA to continue to measure water quality as it returns to normal, but also to work together to assess other mines throughout the state to make sure this doesn't happen again."
Multiple state agencies are working with EPA to sample water quality and determine potential long-term impacts related to the spill in the Animas River and its tributary.
Hickenlooper noted that local jurisdictions including the cities of Silverton and Durango, the Southern Ute Indian Tribe, and La Plata and San Juan counties had already declared their own disaster emergencies.
"This plume contains many heavy metals and other by-products that may pose a risk to the affected downstream waters and local water sources including private wells, public wells, and river intakes," Hickenlooper wrote in the executive order.
EPA toxicologist Deborah McKean told the Associated Press yesterday that the spill is not expected to have significant health effects on wildlife in contact with the initial plume because it has moved so quickly through the waterway (Greenwire, Aug. 10).
-
(ACC Mentioned) What’s In and What’s Out: The Finalized Clean Power Plan rule
Aug 11, 2015 | Hellenic Shipping News
On Monday, August 3rd, US Environmental Protection Agency (EPA) announced the final language of their Clean Power Plan. Originally proposed in June 2014, the EPA fielded over four million comments during the open-comment period. The result of this multi month effort is a final rule that still aims to reduce the power sector’s carbon emissions by curtailing the pollutants from existing generating units. However, there have been several changes between the proposed and finalized rule. The purpose of this blog is to compare and contrast the proposed rule with the final rule, and discuss what has changed, what has remained the same, and the likely implications of this rule.
Summary of Proposed Rule vs. Final Rule
Table 1 highlights some of the larger aspects of the rule and the significant modifications.Noteworthy Aspects of the Final Rule
Although there have been several changes between the proposed and final rule, we highlight a few that affect the fundamentals of the CPP as well as some areas where the proposed and final rule do not differ significantly.Timeline of State Implementation Plans and Compliance
States plans are due to EPA in September 2016, with a potential extension of up to two years, if requested by individual states. The compliance period begins in 2022 instead of 2020, as proposed in the initial plan. Furthermore, the original eight-year interim period from 2022 to 2029 is now separated into three periods: 2022-2024, 2025-2027, and 2028-2029, each with a distinct CO2 emission performance rate[1]. Dividing the compliance period into three timeframes with individual targets will better facilitate a “glide path” towards the final emission reduction requirement in 2030.The final CPP rule also includes a Clean Energy Incentive Program (CEIP) to encourage early action by states. The CEIP provides opportunities for investments in renewable energy (RE) and demand-side energy efficiency (EE) implemented in low-income communities that deliver results in 2020 and/or 2021. States meeting the requirements set forth in the CEIP will be eligible to receive matching allowances from EPA that equate to “a total for all states that represents the equivalent of 300 million short tons of CO2 emissions.[2]”
Changing the BSER Building Blocks
The initial proposed CPP had four building blocks under Best System of Emission Reduction (BSER) that were used to calculate states compliance targets: heat rate improvements, increased dispatch of NGCCs, increased generation from renewables and nuclear, and energy efficiency. The final rule shifted these building blocks to just three. This section will focus on the removal of nuclear energy from building block three, and the complete removal of building block four.Third building block and nuclear power
Before the rule was finalized, under-construction nuclear plants were incorporated into the third building block. Several public comments stated that this inclusion would make it difficult to meet the compliance targets, and would unfairly punish states already moving toward low carbon electricity production. The finalized rule removed under construction nuclear from the calculations behind the third building block; however, these facilities can still be counted towards emissions reduction targets in the future. The EPA notes in their reasoning that under-construction nuclear units are different from renewable energy generating capacity, since nuclear capacity has higher cost and longer lead times, and therefore less appropriate for inclusion in the best system of energy reduction.The EPA also excluded existing nuclear capacity from the third building block, as they lack sufficient information on the shutdown risk associated with these plants needed to accurately reflect them in the BSER. Further, the EPA believes that it is “inappropriate to base the BSER in part on the premise that the preservation of existing low- or zero-carbon generation, as opposed to the production of incremental, low- or zero-carbon generation, could reduce CO2 emissions from current levels. Accordingly, we have determined not to reflect either of the nuclear elements in the final BSER.”[3]
Fourth building block and demand-side management
The fourth building block under the proposed rule considered the potential of demand-side resources as a source of emission reductions. However, the finalized CPP removed this building block from the final reduction targets entirely. The EPA notes that the “traditional interpretation and implementation of CAA section 111 has allowed regulated entities to produce as much of a particular good as they desire, provided that they do so through an appropriately clean (or low-emitting) process.”[4] While these entities and the states in which they reside are responsible for meeting the reduction targets, the final ruling allows them to do so through appropriate channels of their own choosing without being expected to stray from their core business of making power. The first, second, and third building blocks are aligned with this interpretation since they are directly related to energy generation. However, the fourth building block deals with demand-side consumption, and therefore is not. As the final rule states, “since the BSER must serve as the foundation of the emission guidelines, the EPA has not included demand-side EE as part of the final BSER determination.”[5]
However, the EPA is still encouraging the use of energy efficiency and demand-side management as tools that states can pursue in meeting their compliance targets.
Beyond the Fence-Line
One legal concern raised in several public comments was that the CPP attempts to regulate existing generating units (EGU) outside the “fence-line.” The term fence-line is used to describe the physical area in which an EGU exists. The EPA‘s interpretation of the CAA is that a regulation can look outside the fence-line when discussing systems of emission reduction, but this idea was heavily contested during the comment period. One example of opposition is from the American Chemistry Council that stated “EPA’s proposed BSER analysis is unlawful because it “looks beyond the fence-line of the fossil fuel-fired Electric Generating Units (EGU) that are the subject of this rulemaking;” “the standard of performance must … be limited to the types of actions that can be implemented directly by an existing source within [the appropriate] class or category.”[6]The EPA states in the finalized rule that legislative history makes clear that EGU emission performance could be based on measures implemented by other entities, and hence outside the fence-line. One historical example they give is the entities that wash or desulfurize coal before being sent to the power plants. The EPA states that the “legislative history is consistent with the EPA’s view that the ‘system of emission reduction’ may include actions taken by an entity with whom the owner/operator of the affected source enters into a contractual relationship as long as those actions allow the affected source to meet its emission limitation.”[7] Therefore, the standard of performance for BSER by an affected EGU could be in part based on facilities and measures that are off-site or outside the fence-line.
Mass vs Rate-Based Compliance Targets
The proposed CPP rule includes state-specific rate-based goals for CO2 emissions from the power sector. There was also flexibility for states to implement mass-based goals and translate that back into rate-based targets. Since several states currently use mass-based trading mechanisms for carbon reduction via the Regional Greenhouse Gas Initiative (RGGI), and hope to continue to do so to meet the CPP targets, there was a need to establish a clear mechanism to convert between mass-based and rate-based goals.Moreover, the proposed ruling received significant comment that mass-based allowance trading was not only highly familiar to states and electric generating units, but that it could be more readily applied than rate-based trading for achieving emission reductions. As a result, the final CPP ruling includes both rate-based goals and explicit mass-based CO2 goals that represent the equivalent of each state’s rate-based goal.
Conclusion
Throughout the final rule, EPA addresses the concerns presented in the comments received from various stakeholders, including, but not limited to, the utility industry, state governments, advocacy groups of various design, and members of the public. Many changes were made between the proposed and final rule in response to these concerns. For example, the updates to the CPP implementation timeline afford states more time to prepare their compliance plans, as well as two additional years to get their plans into action and consider how to ensure grid reliability during and after the compliance period. The shifting BSERs indicate that the EPA took heed of the numerous comments submitted, and adjusted the building blocks that account for each state’s compliance targets. The explicit mass and rate-based targets developed for the final rule now better facilitate emission accounting and trading systems to be established between states.As for the removal of demand-side resources from the building blocks, we believe that this was a strategic decision by the EPA. The final rule notes that the other three building blocks are strategies an EGU can control as they are in the business of producing power. They shouldn’t be regulated to restrict their business, they should only be required to produce cleaner electricity. This idea works around the notion of free market capitalism- the EPA can’t restrict the utilities from doing their business, but they can regulate how they do it. It might be the case that demand-side resources were removed as a building block to reduce the legal challenges as well. Overall, the building blocks were used as defensible mechanisms to set targets, but states can design programs that best fit the specific and distinct needs of their citizens and power sector to get to these targets. The EPA is still encouraging states to pursue demand-side management to reach their reduction goals. The discussion of EE program best practices in the final rule and the recently drafted EM&V rules for demand-side management highlight the EPA’s desires to keep this option on the table, as they have requested comments on these protocols as well. Although the CPP has been finalized, its full implementation is not certain. Multiple states still have pending legal challenges against the rule, and the 2016 presidential election could shift priorities in the White House. These facts could result in a judicial ruling that the EPA overstepped its authority within the CAA, or a new president nominating an EPA Administrator that takes actions that water-down or reverse the current rule. However, at this time, the policy has been finalized and announced. Therefore, states are on the clock to meet compliance timeframes, with implementation plans due in 2018, and first reduction targets met by 2022.
-
Shell Pushes To Drill Deeper With 'Fearless' Leader At Helm
Aug 10, 2015 | E&E News PM
Royal Dutch Shell PLC is urging federal regulators to lift restrictions on drilling deeper than 3,000 feet below the Chukchi Sea as it continues its controversial Arctic exploration.
The Department of the Interior's Bureau of Safety and Environmental Enforcement had held up deeper exploration until a capping stack, emergency equipment capable of plugging a damaged well, was within 24 hours of the Burger Prospect.
With the icebreaker ship carrying the capping stack expected to arrive at the site tomorrow after lengthy repairs, Shell filed a request Thursday to modify its drilling permit.
Shell still has to complete other preparation work before it can begin drilling but has until Sept. 29 to drill.
The company then has until Oct. 31 to complete other work ahead of a return the company hopes to make in 2016 (Jennifer Dlouhy, Fuel Fix, Aug. 10).
Executive Vice President Ann Pickard is guiding Shell's Arctic mission.
The 60-year-old recently scrapped repairs on former offshore drilling rig Kulluk, which ran into an Alaskan island last year, in favor of a "bigger, better rig" and is unfazed by federal government reports scolding Shell leadership for failing to assess risk.
Catherine Tanna, chief executive of the gas and power provider EnergyAustralia, said Pickard is "fearless" after helping weather some of the industry's most difficult tasks, including managing a civil war in Nigeria and building a massive floating natural gas export facility in Australia.
She has built respect in her own sector but also among those fighting against her company's push in the Arctic.
Marilyn Heiman, the Seattle-based Arctic program director for the Pew Charitable Trusts, said Pickard was the first oil executive ever to reach out to her. Despite their disagreements, they kept the lines of communication open.
"Nobody's going to pull the wool over Ann Pickard's eyes," Heiman said. "Nobody's going to push her around."
While Shell has fallen behind on its proposed timeline in the Arctic this year, Pickard insists the company is ensuring that operations are done the right way. "If we operate exceptionally well, we'll get there," she said. "I don't know when, but we'll get there. And that's what matters" (Jennifer Dlouhy, Houston Chronicle, Aug. 7).
-
Why Shell Cut Ties to Conservative Lobby Group Over Climate Change
Aug 10, 2015 | Bloomberg
By Paul Barrett
Does it matter that Royal Dutch Shell plans to cut ties to the American Legislative Exchange Council (ALEC) over climate policy?
Shell follows big oil rival BP and Silicon Valley titans Google, Facebook, and Yahoo in distancing itself from ALEC, a prominent nonprofit that advocates against government regulation, primarily at the state level. The corporations quitting the group have stressed ALEC's opposition to state laws intended to curb carbon emissions and address human contributions to global warming.
"ALEC advocates for specific economic growth initiatives, but its stance on climate change is clearly inconsistent with our own," Curtis Smith, a Shell spokesman, said in a statement. In a response, ALEC said its opposition "to government mandates and subsidies of all type" has been mischaracterized "as climate change denial."
Shell's timing deserves both scrutiny and skepticism. The multinational began to drill for oil this summer in the Chukchi Sea, northwest of Alaska. Environmentalists argue that Shell's Arctic foray not only threatens to exacerbate climate change by producing billions of additional barrels of petroleum, but it also risks a spill in a remote and ecologically sensitive region.
One could dismiss Shell's withdrawal from ALEC as hollow public relations, an extension of the company's yearslong attempt to foster an image of social responsibility. After all, as Ben Elgin of Bloomberg News has reported, ALEC is not the only pressure group opposing climate-friendly rules that Shell has backed while simultaneously, in Jekyll-and-Hyde fashion, insisting that it favors limits on carbon.
But without shilling for Shell, I'd argue that more is going on here than standard corporate double talk. Shell has developed a corporate mindset that recognizes the inevitable need to shift to renewable energy sources even as it justifies continuing to do what it's always done (drill for more oil). Shell even endorses imposition of taxes on burning oil and other CO2-emitting fuels, such as those enacted by some European countries (but not the U.S., China, or India).
That's not going to satisfy environmentalists, and it shouldn't. But the company's decision to depart ALEC is a reminder that it's silly to expect a $420 billion corporation to cease doing the sole task it's designed to do, especially when there are buyers for its wares. (Current oil prices mean that Shell's Arctic venture wouldn't be profitable, but the company projects that rising demand for air conditioners and automobiles in Asia will push prices back toward $100 a barrel by the time Chukchi oil comes online.)
Instead of demanding that oil companies commit economic hari-kari, activists and politicians ought to focus on enacting the rules Shell professes to favor—and ALEC opposes—including carbon taxes, cap-and-trade systems, and the sort of emission reductions contained in the new Obama Clean Power Plan. Each time a major corporation, especially a major oil company, backs away from ALEC, the plausibility of real regulatory progress grows.
-
The Third Fossil Fuel In The Climate Conversation
Aug 10, 2015 | The Hill - Congress Blog
By Deborah Gordon
President Obama’s Clean Power Plan is a significant step in the right direction to combat climate change. The coal and natural gas fueling the nation’s electricity grid have vastly different implications for a warming world than do renewables. Addressing these two fossil fuels climate footprints is an imperative.
An equally crucial third party to the climate conversation remains on hold, however. The U.S. has to figure out how to deal with the climate impacts of its homegrown oil revolution. As alternative oils advance—fracked tight oils and condensates in North Dakota and Texas, Arctic oils, Canadian oil sands flowing through U.S. refineries and pipelines, and other resources on the frontier—it is critical to fully analyze and carefully design public policies that significantly reduce their resulting greenhouse gas emissions as well.
Despite John D. Rockefeller’s successful marketing, there is no standard oil. Likewise, there is no single climate calculation that applies to all oils. In reality, precious little is known about today’s new resources, and others on the horizon. But it is clear that they have little in common with conventional oil, or with one another. The combination of dwindling conventional resources and technological advances means that unconventional hydrocarbon deposits in once-unreachable areas are now viable resources.
The total climate impacts of oil resources need to be considered in a systematic way through the entire oil supply chain—upstream extraction, midstream refining, transport, and downstream end use of all petroleum products. A new tool developed by the Carnegie Endowment for International Peace with partners at Stanford University and the University of Calgary does just that. The first-of-its-kind Oil-Climate Index (OCI) compares global oils by their total estimated greenhouse gases emissions per barrel of oil.
Thirty global oils (5 percent of current global production) modeled in Phase One of the index found an 80-percent difference in the climate impact of the highest-emitting oil compared to the lowest. And this emissions’ spread between oils can be expected to grow as new, unconventional oils are identified.
Although U.S. tight oils have yet to be modeled using the OCI due to insufficient public data availability, their emissions likely vary significantly depending on how much associated gas is flared and wasted during production. As such, the climate impacts resulting from America’s tight oil boom, if they aren’t carefully managed, could rival those from other climate intensive oils, including Canada’s oil sands, California’s depleted and watery oil fields, or drilling in the Arctic’s methane-rich permafrost.
So it won’t be enough to target power plants. Oil matters if the United States and its international partners are going to stabilize the climate. The inclusion of cars into the climate plan is an important step, but focusing on gasoline may not make a dramatic difference on its own. A large and growing greenhouse gas footprint can already be attributed to extracting and refining alternative oils, as well as burning bottom-of-the-barrel co-products like petroleum coke.
Obama is in a position to be able to leverage his historic fuel economy standards as a force multiplier. Imagine a future where American cars and trucks go twice as far on a gallon of motor fuel that is made from oils that are half as climate intensive. Putting dirty oils in more fuel-efficient cars, on the other hand, is not the route forward. Focusing on both oil and vehicles offers a significant boon for the climate.
Moreover, the information underpinning the OCI tool enhances transparency through the oil supply chain, allowing market actors and policymakers to better navigate this unpredictable sector. The index can also help calibrate an effective carbon tax, equitably parsing emissions among those who are actually responsible for them—producers, refiners, shippers, and consumers.
All eyes are on America. The oil sector’s transformation has begun a critical global conversation that the world’s oil exporting and importing nations need to have at the upcoming UN climate change conference in Paris at the end of the year. The nation must address its oil-climate responsibilities head on. Open source, consistent, and verifiable data on a greater volume and variety of global oil resources is called for. It’s time to talk about the third fossil fuel in order to fully protect the climate.
-
Controversial EPA plan presents opportunity for natural gas, renewables growth
Aug 10, 2015 | The Chicago Tribune
By Christin Nance Lazerus
The Environmental Protection Agency's Clean Power Plan represents both a challenge and an opportunity for the state, depending on a person's view of the EPA.
Gov. Mike Pence and other politicians have largely panned the plan, even threatening to refuse to comply with it, while environmental activists say it represents a real shot in the arm to the renewable energy sector.
Coal-fired power plants in Indiana must reduce their carbon dioxide emissions by 32 percent by 2030, but the plan represents a significant hurdle for a state that relies on coal-fired plants for more than 80 percent of consumer energy needs. It's a larger cut than initially proposed by the EPA — and politicians are raising the spectre of higher energy costs for consumers — but it could spur the conversion of more coal-fired plants into power plants that run on natural gas or other renewable energy sources, such as solar and wind.
The plan would require Indiana to reduce its power plant carbon dioxide emissions from the 2,021 pounds per megawatt in 2012 to 1,451 pounds by 2022 and 1,242 pounds by 2030. The goal is to reduce carbon emissions by 32 percent in 2030 based on 2005 levels.
Power plants are the largest single source of greenhouse gases — about one-third — that contribute to climate change, and global temperatures in 2014 were the warmest on record.
On Aug. 3, Pence said he's committed to "vigorously" fighting the plan that is the EPA's first attempt to regulate carbon emissions at U.S. power plants over the next 15 years.
"If the final rule is not significantly improved, then Hoosiers can be assured that on behalf of families, businesses and other ratepayers, Indiana will not comply," Pence said.
Indiana Attorney General Greg Zoeller said it will join 14 other states in challenging the regulation in federal appeals court and having the rule put on hold until legal challenges are concluded. The suit was previously dismissed because the court said states had to wait until the plan was finalized to sue.
"EPA's rule is an overreach of historic proportions, and this regulation of electrical power generation goes far beyond what Congress authorized the agency to do," Zoeller said in a statement.
Indiana University law professor Jim Barnes, who worked at the EPA, said part of the state's response can be explained by Indiana's ranking as the eighth-highest coal producing state in the nation and its reliance on coal-fired electricity to meet more than 80 percent of residents' energy needs.
"The proposal has been out there for a quite a while, and the EPA did make adjustments to earlier proposals," Barnes said. "It made some changes to make it more bulletproof for possible legal challenges and put safety valves in for states saying it could cause disruption to the energy market."
Barnes said it's hard to predict how different courts may rule on the legality of the regulations, but he said the energy sector has been moving toward sources that emit less carbon for more than a decade.
"The Indiana response is like that of West Virginia and Kentucky; it's kind of a rearguard action," Barnes said. "Since (2005), there's been more replacement of old coal-fired power plants into natural gas and renewables. That trend is going to keep going on if for no other reason than the economics of natural gas being cheaper and there are not same ash disposal problems that coal-fired plants present. It's an ongoing change in the energy mix."
Valparaiso University law professor Robert Blomquist said the EPA had to take a creative regulatory approach since the Clean Air Act doesn't give them specific authority to regulate carbon dioxide.
"My guess is if it is challenged in the courts — and of course will be — I think the EPA will win," Blomquist said. "It's a timely topic, and there's been a logjam in Congress and the White House for years in regulating carbon. But it's clear that all climate scientists link carbon emissions to rising temperatures and global warming."
States can meet the targets by designing their own plans detailing efficiency measures as well as purchasing carbon credits as part of regional cap-and-trade programs. Though the Midwest has yet to set one up, Hoosier Environmental Council Executive Director Jesse Kharbanda said Indiana and other states in the Midwest can take its cue from a cap-and-trade program in the Northeastern United States.
"The benefits have exceeded the costs by $1.6 billion so far," Kharbanda said. "Cap and trade has been debated since early 2000s, so energy planners in the Midwest have thought about how it would work for more than a decade."
Kharbanda said the plan sends a strong signal to those who manufacture components for wind, solar, and other renewable energy sources.
"The country is moving to a clean energy future, and it provides the certainty they've been waiting for," Kharbanda said. "There are many ways to cut greenhouse gas emissions, and most are cost effective, such as incentivizing homeowners and industry investment in energy efficiency."
Kharbanda said the Energizing Indiana program, an energy efficiency program which the Indiana General Assembly ended in 2014, would have helped the state reduce carbon emissions.
"With the original plan proposed by the EPA, Indiana would have fully met the goal by 2020 if we would have continued Energizing Indiana program."
NIPSCO spokesperson Kathleen Szot said the utility is still working to determine the impacts of the final rule. Szot pointed out that over the past decade NIPSCO has diversified its energy sources, installed environmental upgrades at our power plants and expanded customers programs that support renewable energy. Since 2005, NIPSCO has curbed its greenhouse gas emissions by 18 percent.
Nearly $800 million in significant improvements have helped reduce nitrogen oxide, sulfur dioxide and carbon dioxide emissions at its plants, including the Michigan City, Bailly and Shaffer Generating Stations.
Former NiSource CEO Mark Maassel, president of the Indiana Energy Association, which represents the state's investor-owned utilities, said the changes will ultimately result in higher energy bills. Calling the plan "a stretch," he said the EPA shouldn't assume states will realistically be able to reduce power plant emissions.
"We question a lot of the EPA assumptions that went into developing the emissions reductions," Maassel said.
The Indiana Energy Association projects that retail electricity rates could increase by 14 percent, according to a study commissioned by the American Coalition for Clean Coal Electricity.
-
Clean Power Plan Extensions Have Catch: Outreach
Aug 11, 2015 | BNA Daily Environment Report
By Andrew Childers and Rachel Leven
States seeking additional time to develop compliance strategies for the Environmental Protection Agency's Clean Power Plan must first show that they have engaged with minority and at-risk populations.
The Clean Power Plan (RIN 2060-AR33), issued Aug. 3, establishes three criteria for states seeking an additional two years to develop their compliance plans, and among them is demonstrating outreach to environmental justice communities.
Lisa Garcia, vice president of litigation for healthy communities at Earthjustice, said the EPA's placement of the engagement requirement early on in the process constitutes a safeguard.
“They had to figure out mechanisms of accountability,” Garcia, the EPA's former senior adviser to the administrator for environmental justice, told Bloomberg BNA. “This is one way to really ensure that states don't forget about the [vulnerable] people and the importance of input.”
As part of the final rule, states will have the option of submitting either their final compliance plans or an initial submission to the EPA by Sept. 6, 2016. States that choose to make that initial submission will have until Sept. 6, 2018, to complete their plans. The criteria for receiving that extension include identifying approaches states are considering for reducing carbon dioxide emissions from power plants; an explanation for why states need additional time to comply; and public outreach, including with affected and at-risk communities. Those communities could include minorities and low-income populations as well as labor unions and workers whose jobs could be affected, particularly in coal-dependent states, the EPA said.
“The EPA recommends that as part of their meaningful engagement with vulnerable communities, states work with communities to ensure that they have a clear understanding of the benefits and any potential adverse impacts that a state plan might have on their overburdened communities and that there is a clear process for states to respond to input from communities,” the agency said in the rule.
The EPA has made environmental justice a larger focus of its final Clean Power Plan, which would limit carbon dioxide emissions from existing power plants, than it had in its proposed rule (149 DEN B-13, 8/4/15).
States Considering New Environmental Justice Focus
States are still assessing how the new outreach component compares to their existing efforts, but Clint Woods, executive director of the Association of Air Pollution Control Agencies, said the final rule makes it more of a priority.
“Our states are looking at both the requirements and the degree to which you conduct the meaningful analysis when you're just seeking an extension,” Woods told Bloomberg BNA Aug. 10.
To assist the states, the EPA has used its EJSCREEN, an online tool that uses environmental and demographic data to identify at-risk communities, to develop a pair of reports looking at environmental justice considerations under the Clean Power Plan and the model federal implementation plan.
The reports—also known as proximity analyses—specifically identify characteristics such as income and minority status of communities that live within a three-mile radius of each power plant that is affected by the Clean Power Plan and are intended to offer a baseline regarding how a plant's changes in air emissions will affect air quality and which communities stand to be affected.
From Recommendation to Requirement
The EPA has previously recommended that states address environmental justice considerations in rules such as the air quality standards for ozone, Bill Becker, executive director of the National Association of Clean Air Agencies, said. But the latest requirement shows that it will likely play an even greater role in future regulations, he said.
“I think they want a signal that this is on states’ radar and the states are interested in addressing issues in the future as part of this program,” Becker told Bloomberg BNA Aug. 10. “It's a serious problem and it's one that most states have generally have been focusing on more and more.”
Jalonne White-Newsome, a federal policy analyst for WE ACT for Environmental Justice, told Bloomberg BNA that she was encouraged by the fact that the EPA included a meaningful engagement requirement in the rule, because states can't ignore vulnerable community engagement any more.
By placing the meaningful engagement requirement so early in the process—where states must apply for an extension—the EPA is helping to ensure that the engagement will be “consistent and continual throughout the entire process,” White-Newsome said.
The word extension always sends up a “red flag,” White-Newsome said, because it means states can take more time to not act. However, including an engagement requirement early on shows that the EPA had listened to justice advocates, she said.
‘The Biggest Achievement.'
Alejandra Nunez, staff attorney at the Sierra Club, called the addition of that requirement to the Clean Power Plan “the biggest achievement from the environmental justice perspective.”
“The final rule shows the EPA really listened to communities and the organizations that represent them,” she told reporters Aug. 10.
But White-Newsome and Garcia both said that putting the engagement requirement in, and putting it in early, is only just the beginning. Now, White-Newsome said, advocates must “hold the states' feet to the fire to make sure they use that requirement in the best way.”
That means not only that states, for example, hold public meetings but those meetings must be in locations and at times that vulnerable communities can actually attend, Garcia said. And the meetings must include information that is useful and digestible to communities, White-Newsome said.
“The real work begins now,” Garcia said.
Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-language:AR-SA;}
-
Virginia House Speaker Backs Power Plant Review Bill
Aug 11, 2015 | BNA Daily Environment Report
Legislation will be introduced for the 2016 Virginia General Assembly session that would require legislative approval of the Virginia executive branch's plan for complying with the Environmental Protection Agency's Clean Power Plan (RIN 2060-AR33), Virginia House of Delegates Speaker Bill Howell (R) announced Aug. 10. “The Commonwealth should delay the implementation of any compliance plan while the regulations are litigated and the General Assembly should have final approval and oversight of the plan,” Howell said. “The House of Delegates will fight to protect the working families, seniors and small businesses that will be hurt by these burdensome regulations,” he added. The bill will be introduced ceremonially by Del. Israel O'Quinn (R). A similar bill introduced in the 2015 session passed the House of Delegates but failed to clear the state Senate.
-
EPA to Propose De Minimis Permit Threshold in 2016
Aug 11, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency plans to propose a de minimis threshold for its greenhouse gas permitting program in June 2016 after a federal appellate court denied industry groups' petitions to rehear lawsuits over the program.
The U.S. Court of Appeals for the District of Columbia Circuit Aug. 7 issued two per curiam orders denying petitions from the Coalition for Responsible Regulation, Southeastern Legal Foundation and Competitive Enterprise Institute seeking a new hearing on legal challenges to the permitting requirements (Coal. for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, rehearing denied 8/7/15).
The EPA must set a de miminis threshold for greenhouse gases—below which permits would not be required—following a U.S. Supreme Court decision that limited the scope of the permitting program.
“We do expect EPA to conduct a rulemaking on de minimis, and I think that's probably the most significant thing that's outstanding,” Sean H. Donahue, of Donahue & Goldberg LLP, told Bloomberg BNA Aug. 10. Donahue had represented environmental groups in litigation over the permitting program.
The EPA plans to propose the threshold in June 2016, but the agency does not yet have a timeline for issuing a final rule.
The Supreme Court in 2014 limited the scope of the greenhouse gas permitting program to only those sources that trigger prevention of significant deterioration permitting requirements for emissions of conventional pollutants (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (U.S. 2014) ).
Permitting Program Remanded
The D.C. Circuit had vacated provisions of the EPA's tailoring rule, which had limited permitting requirements to only the largest stationary sources, to the extent they require industrial sources to obtain prevention of significant deterioration or Title V permits solely due to their greenhouse gas emissions in accordance with a decision from the Supreme Court. The D.C. Circuit remanded the remainder of the rule to the agency to determine whether further revisions were necessary, including addressing a requirement to set a de minimis threshold for greenhouse gas emissions below which industrial sources wouldn't need to obtain permits.
Industry groups had asked the court to rehear challenges to the permitting program, arguing that the EPA must issue a new permitting rule before it could continue with its prevention of significant deterioration program for greenhouse gases (102 DEN A-4, 5/28/15).
Prevention of significant deterioration requires new and modified industrial sources to install best available control technology to control their emissions.
-
EPA Orders More Air Quality Tests For Homes Near Superfund Sites
Aug 9, 2015 | LA Times
By Tony Barboza
The U.S. Environmental Protection Agency has ordered a new round of air quality tests for a South Bay neighborhood after detecting a variety of contaminants inside homes near two federal cleanup sites.
The EPA sampled 107 homes near the Del Amo and Montrose Superfund sites earlier this year under pressure from residents worried they are breathing dangerous chemicals seeping in their homes from a plume of tainted groundwater below.
The tests detected pollutants associated with the cleanup sites, including benzene, chloroform and trichloroethylene, at levels above the agency's health standards for long-term exposure.
The concentrations are not high enough to pose an urgent health risk to residents, said Dana Barton, who supervises the Superfund sites for the EPA's regional office in San Francisco. "But we did find some levels of concern."
Barton said some of the compounds could be from bathroom cleaners, painting supplies and other products in peoples' homes, and others are probably coming from vehicle exhaust and refinery emissions in outdoor air.
"The question now for us is how much, if at all, the Superfund sites are contributing," Barton said.
Cynthia Babich, a former resident who directs the neighborhood advocacy group Del Amo Action Committee, called the results "scary and confusing" and accused the EPA of "minimizing the chance that there could be a problem in the community."
Worries over indoor air are only the latest environmental problems in this unincorporated community near Torrance. Residents have contended with decades of alarming discoveries, including soil laced with the pesticide DDT that led to the demolition of more than 60 homes and excavations of two dozen frontyards.
The neighborhood sits next to some of the nation's worst chemical dumping grounds: the former Montrose Chemical Corp. DDT plant that operated from 1947 to 1982, the Del Amo synthetic rubber plant built by the U.S. government during World War II and other industrial operations. Over decades, the facilities dumped chemical waste into pits, ponds, trenches, sewers, stormwater channels and the Pacific Ocean.
Now, the EPA is overseeing a lengthy cleanup at the Montrose and Del Amo sites under its Superfund program. It has cost more than $48 million to date.
The recent testing was intended to find out whether volatile compounds in polluted groundwater is evaporating through the soil and into homes, a process called vapor intrusion.
Most concerning was the discovery of trichloroethylene, or TCE, in five homes. The industrial solvent pollutes groundwater in the neighborhood and other cleanup sites across the nation.
Recent scientific studies show that inhaling TCE poses a higher cancer risk than previously thought and can cause heart defects in developing fetuses. Those findings have brought new scrutiny from federal environmental regulators, who have launched investigations to search for TCE vapors at more than a dozen other Superfund sites in California.
In almost every South Bay home tested, the EPA detected benzene, chloroform and carbon tetrachloride — chemicals that were used or dumped at the old industrial sites — above its long-term screening levels for indoor air. About 20 of the homes had 1,2 dichloroethane and 1,4 dichlorobenzene and other volatile compounds at more than 100 times the EPA's screening levels.
Concentrations above screening levels do not indicate an immediate health risk, EPA officials stressed, but they do warrant further investigation.
A 2010 EPA assessment found that vapors were migrating into commercial buildings that sit over the former Del Amo site, Barton said. More recent data have shown polluted groundwater growing shallower and closer to residents, with levels of TCE and other contaminants increasing below some homes.
Scott Hookey and his wife moved to the neighborhood last year. They had decided to try to have their first child and didn't know the home they had rented was near two chemical waste sites.
It wasn't until a flier arrived in the mail over the winter that Hookey, a 31-year-old Marine Corps veteran and USC grad student, learned of concerns over potentially harmful vapors and arranged for their home to be tested. The EPA found TCE and other contaminants above long-term screening levels in a bedroom they planned to use as a nursery.
"We've had to rethink our plan of having a kid while we're living here," Hookey said. "We can't do it."
In addition to a second round of testing at about 40 homes later this year, the EPA said it will drill through driveways, concrete slabs and other surfaces throughout the neighborhood, inserting probes to search for soil gas that could be collecting underground.
-
EPA Moves To Fix Air Pollution Rule After Supreme Court Loss
Aug 10, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is planning to fix by this spring the problem that caused the Supreme Court to rule against its major air pollution regulation in July.The EPA told a lower court on Monday that it is formulating a plan to conduct cost-benefit analysis as part of a revision of its finding that the mercury rule is “appropriate and necessary.”
“EPA intends to submit a declaration establishing the agency’s plan to complete the required consideration of costs for the ‘appropriate and necessary’ finding by spring of next year,” the agency wrote in a filing with the Court of Appeals for the District of Columbia Circuit.
The high court told the agency in Michigan v. EPA that it should have considered the costs of regulating emissions of mercury, arsenic and acid gases from coal-fired power plants before deciding to write the regulation.
The circuit court is responsible for deciding how the case moves forward after the Supreme Court sent the case back to it. So far, it has not asked the EPA to submit anything about how the case will proceed.
The regulation remains in effect while the circuit court decides whether to block its enforcement and how the EPA can fix the cost analysis problem.
While the EPA conducted a cost-benefit analysis as part of the regulating process and found about a 10-1 ratio of health benefits to compliance costs, the Supreme Court found that the unique “appropriate and necessary” language in the Clean Air Act required the agency to go through such an analysis before even deciding to regulate.
The EPA’s statements about the harms of air pollution, both publicly and in the court filing, strongly hint that it will conclude that its regulation is justified.
EPA head Gina McCarthy said a week after the ruling that she is confident that the mercury regulation will stand up and its benefits will be realized.
“The majority of power plants have already decided and invested in a path to achieving compliance with those mercury and air toxic standards,” she said. “So we are well on our way to delivering the toxic pollution reductions that people expected.”
The Monday filing came in response to a motion from a Colorado utility, which faces an April deadline to either upgrade a specific coal-fired power plant or shut it down to comply with the rule.
The utility asked the court to extend its deadline due to the Supreme Court ruling, a motion that both the EPA and a group of competing utilities opposed, arguing that the lower court should be allowed to go through its normal considerations regarding the future of the rule.
-
EPA Outlines Plan For Utility MACT Remand In Opposition To Stay Request
Aug 10, 2015 | InsideEPA
By Stuart Parker
EPA says it plans to meet a self-imposed spring deadline for crafting a new assessment of the costs associated with its finding that a utility air toxics rule is “appropriate and necessary,” detailing the schedule in a legal filing that objects to a power company's request for an appellate court to issue an emergency stay of the rule.
A group of “clean” utilities that generate power from natural gas and other energy sources that emit less pollution than coal combustion are also opposing the bid for a stay of the utility maximum achievable control technology (MACT) regulation while the U.S. Court of Appeals for the District of Columbia Circuit weighs how to proceed with the rule. The utilities say the stay request is a “Trojan Horse” that aims to derail implementation of the rule for “hundreds” of facilities.
The D.C. Circuit originally upheld EPA's finding that a utility MACT was appropriate and necessary, rejecting claims by industry and some states that the agency should have considered costs as part of the finding. EPA said the Clean Air Act is silent on this issue, and that it weighed costs when it set the rule's emissions limits.
But the Supreme Court on appeal in a 5-4 ruling issued June 29 faulted the lack of cost consideration, saying it should have been a factor in the original determination. The high court sent litigation over the rule back to the D.C. Circuit in the case White Stallion Energy Center v. EPA, where it is currently still pending.
In a July 31 motion, Western electric utility Tri-State Generation and Transmission Organization asked the appellate court for an emergency stay to suspend the rule's April 15 hydrogen chloride (HCl) emissions limit compliance deadline for the its Nucla, CO, power plant, pending EPA's re-issuance of the appropriate and necessary finding.
The Department of Justice (DOJ) in an Aug. 10 legal brief on EPA's behalf opposes the request as unwarranted, and reveals the agency's plan to retain the rule and rework the finding by next spring.
“When this court orders motions to govern remand proceedings, EPA intends to seek remand without vacatur to address the Supreme Court’s limited holding in Michigan v. EPA,” as the case was known at the high court, the brief says. “In support of that motion, EPA intends to submit a declaration establishing the Agency’s plan to complete the required consideration of costs for the 'appropriate and necessary' finding by spring of next year. In fact, EPA’s aim is to develop a schedule that will allow it to do so before the Nucla Station’s April 15, 2016 compliance deadline,” DOJ says.
DOJ says EPA has not decided on the exact form of its response to the Supreme Court's ruling. But DOJ says the existing administrative record for the rule “contains extensive documentation regarding the cost of compliance,” and that the “existence of those documents indicates that the Agency can meet an ambitious schedule on remand.”
MACT Finding
If EPA re-issues the appropriate and necessary finding by spring, it could be before the April 15 compliance deadline that the Nucla plant is currently facing after winning a one-year compliance extension.
On the substance of Tri-State's motion, DOJ says that the company has failed to exhaust its administrative options to win more compliance time for the Nucla plant. The company's claim stems from the fact that the plant is small, operates infrequently and would be uneconomic to retrofit with additional pollution controls.
Tri-State says it is faced with “imminent harm,” and hence a stay or “tolling” of implementation is necessary, because the company must under an agreement with Colorado regulators decide by Sept. 1 whether to keep the plant operational or close it. Without knowing the outcome of the ongoing D.C. Circuit case -- which might result in vacatur of the rule -- the company cannot reasonably make this decision, Tri-State argues.
However, DOJ in the new filing says that the Sept 1 deadline “is of Tri-State’s own making, having proposed it to Colorado in its June 5, 2014, extension request.” Also, the company has not formally approached EPA about winning further flexibilities available under the MACT rule, DOJ says.
Tri-State has already conceded that adding controls at Nucla is not economic, and therefore the company is simply seeking to delay the inevitable closure it says is the only option, DOJ says. Further, “granting Tri-State’s request would injure EPA and other parties by eroding some of the protections of the Rule without giving EPA an opportunity to fully brief the issue of whether remand without vacatur is warranted,” DOJ argues.
DOJ also argues that Tri-State is ignoring the harmful effects of HCl, which is not only harmful to health itself, but in the rule serves as a “surrogate” for other, even more harmful acid gases.
'Trojan Horse'
Meanwhile, low-emitting “clean” utilities backing EPA in its fight to retain the rule submitted their own Aug. 10 brief to the D.C. Circuit opposing the stay request. The utilities say that Tri-State's push for an emergency suspension of the Nucla plant's implementation deadline is not limited to one plant with special circumstances. Rather, it could open the floodgates to many other plants making similar claims, the utilities warn.
Utilities Calpine Corporation, Exelon Corporation, National Grid Generation LLC, and Public Service Enterprise Group, Inc. say that there is nothing unique about the Nucla plant's situation.
“Tri-State’s motion is a poorly disguised Trojan Horse, masquerading as a motion about 'one compliance obligation for one power plant' but advancing a theory of relief that could logically apply to all compliance obligations at hundreds of power plants,” they argue.
They add that “were the Court to grant Tri-State’s motion it would short circuit the Court’s thorough consideration of its principal tasks on remand: determining the action EPA must take in light of the Supreme Court’s decision and the disposition of [the MACT] while EPA fulfills its obligation.”
Tri-State has failed to make the factual case to justify “emergency” intervention by the court, these utilities argue, pointing out that the company could ask Colorado for an extension of the Sept. 1 deadline. Also, the company does not face the financial hardship it claims absent a delay of MACT compliance at Nucla, the utilities say. “Nothing in the motion supports the conclusion that the closure of Nucla Station, or even a large expenditure at Nucla Station, would 'threaten[] the very existence' of Tri-State’s business,” they argue, citing the D.C. Circuit's precedent on how much harm might warrant such extraordinary measures.
-
EPA to Address Supreme Court MATS Ruling by Spring 2016
Aug 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency intends to address a recent ruling by the U.S. Supreme Court on the legality of the mercury and air toxics standards by spring 2016, the agency told a federal appeals court Aug. 10 (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, opposition filed 8/10/15).
The EPA said the existence of “extensive documentation” of the cost of the mercury and air toxics standards indicates that the agency will be able to meet an “ambitious schedule on remand” once the U.S. Court of Appeals for the District of Columbia Circuit decides how to proceed. The agency indicated that it will be able to address the Supreme Court's decision before an Apr. 16, 2016, compliance deadline for power plants that received a one-year compliance extension under the rule.
The Supreme Court in June ruled that the EPA was required to consider compliance costs when deciding whether it was “appropriate and necessary” to regulate mercury emissions from power plants, a finding that triggered promulgation of the MATS rule, which is estimated to bring compliance costs of $9.6 billion per year to the power sector (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (U.S. 2015); (125 DEN A-1, 6/30/15).
The Supreme Court July 31 formally sent the litigation back to the D.C. Circuit, which will decide whether the standards will be vacated or will remain in place while the EPA works to address the Supreme Court decision. Once the D.C. Circuit orders motions to govern further proceedings in the litigation, the EPA intends to seek a remand without vacatur of the MATS rule, the agency said.
In support of that request, the EPA said it will submit to the court a declaration establishing a plan to “complete the required consideration of costs” to support the “appropriate and necessary finding” by spring 2016.
Agency Cites Extensive Record
The EPA said that while it has “not yet determined” how it will consider cost in order to address the Supreme Court's ruling, the existing record includes a full regulatory impact analysis that details the cost of complying with the standards. That cost-benefit analysis identified annual compliance costs of $9.6 billion and annual benefits of up to $90 billion.
“The existence of those documents indicates that the agency can meet an ambitious schedule on remand,” the EPA said.
The EPA outlined its plans in an opposition brief filed in response to an emergency motion by the Tri-State Generation and Transmission Association, which asked the D.C. Circuit to suspend compliance obligations for the company's coal-fired Nucla Station power plant in Colorado by Sept. 1. The company argued that such action is necessary because the company has until Sept. 1 to decide whether to shut down the plant or spend millions of dollars to install a new pollution-control device needed to meet the rule's emissions limit for hydrochloric acid.
The agency raised several procedural arguments against that emergency motion, most notably alleging that Tri-State failed to demonstrate the four factors that are necessary for a stay or injunction by the court. Specifically, the EPA argued that Tri-State is not likely to succeed on the merits when the court considers whether to vacate the MATS rule.
“Although the question of whether the court should remand the rule without vacatur has not been fully briefed by the parties, given the limited nature of the Supreme Court's decision and EPA's commitment to an ambitious schedule on remand, in addition to the public health and welfare benefits of keeping the rule in effect during remand, Tri-State's likelihood of success on the merits is far from certain,” the agency said.
The agency also argued that granting Tri-State's emergency motion would erode some of the public health protections of the MATS rule. The EPA said its motion to govern further proceedings will explain the public health and environmental benefits of leaving the MATS rule in place on remand.
Two other parties involved in the lawsuit filed opposition briefs in response to Tri-State's emergency motion: a collection of public health groups led by the American Lung Association and an industry coalition that includes Calpine Corp. and Exelon Corp.
-
EPA Means To Finish Reconsideration Of Mercury Rule By April 2016
Aug 10, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA today told a federal court that it aims to move forward with an update to its mercury rule by April 2016.
The Supreme Court in June ruled that the agency was wrong to not consider costs early in the rulemaking process as part of determining whether a regulation is "appropriate and necessary."
But the high court did not outright toss out the rule, sending it back to the agency for a second look.
In a filing before the D.C. Circuit Court of Appeals today, EPA says that it plans to complete that new finding before April 15, 2016.
“The Supreme Court explicitly declined to limit the EPA’s discretion as to how to consider costs… and the Agency has not yet determined how it will do so,” EPA wrote in the filing, which opposed a power generator’s request for an exemption from the rule for a Colorado facility.
But EPA notes that it has already performed an "exhaustive consideration of costs" during later stages of the rulemaking process. “The existence of those documents indicates that the Agency can meet an ambitious schedule on remand,” EPA concludes. -
Court Upholds Approval of Illinois Emissions Program
Aug 11, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency did not act in an arbitrary or a capricious manner when it approved a revised motor vehicle emissions testing program in Illinois, a federal appeals court ruled (Indiana v. EPA, 2015 BL 254652, 7th Cir., No. 14-3214, 8/7/15).
The U.S. Court of Appeals for the Seventh Circuit, in an opinion issued Aug. 7, denied a challenge brought by Indiana, which alleged that the EPA had approved a program that impermissibly interferes with attainment of the national ambient air quality standards for ozone in two counties in that state. The court ruled that the EPA complied with its reasonable interpretation of Section 110(l) of the Clean Air Act, which governs revisions of state implementation plans, when it determined that the change to the emissions program would not interfere with attainment in the future.
At issue in the case was the EPA's 2014 approval of a revised state implementation plan from Illinois, which relaxed its motor vehicle emissions testing program by exempting pre-1996 model year vehicles that met certain standards. Prior to that change, all cars from model years 1968 and newer were subject to emissions testing.
The EPA's interpretation of Section 110(l) of the Clean Air Act allows states to make revisions to their state implementation plans that will increase emissions if substitute emissions reductions are identified. Illinois provided the EPA with a list of more than 1,000 facilities that emitted ozone precursors that had closed, which fully offset the projected emissions increase from the less-stringent emissions testing program.
Change Implemented in 2005
Indiana argued the interpretation of Section 110(l) should not apply because there is measurable emissions data showing that the revised state plan would interfere with attainment of the ozone standards.
Illinois implemented the less stringent emissions testing program in 2007, five years before the state sought approval from the EPA in 2012.
During that time, Indiana argued, the less stringent emissions testing program caused a measured violation in 2011 that resulted in the Chicago area being classified as a nonattainment area under the 2008 ozone standards of 75 parts per billion. The EPA included Lake County and Porter County, both in Indiana, in the Chicago nonattainment area (198 DEN A-2, 10/14/14).
However, the court found that the EPA was required to determine whether the revised program would interfere with attainment “going forward,” and the agency reasonably did so by applying its interpretation of Section 110(l).
“The fact that a policy may have prevented attainment in the past does not necessarily mean that it will do the same in the future,” the court said. “Because EPA confirmed that Illinois's I/M [motor vehicle inspection and maintenance] change is part of an overall net decrease in ozone precursor emissions, it seems probable that ozone levels will decrease and the area will reach attainment.”
The opinion was authored by Judge Joel Flaum. The other members of the panel that decided Indiana v. EPA were Chief Judge Diane Wood and Judge Frank Easterbrook.
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
Full Text of Stories Below
Add recipients
Suggested