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ACC AM aug 12
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(ACC Mentioned) Global IBAP Drops Showing Falling Petchem Costs For Auto Production
Aug 12, 2015 | ICIS News
By Mark Victory
The Global ICIS Basket of Automotive Petrochemicals (IBAP) has fallen by $4.49/tonne of total vehicle weight (TTVW) month on month in July as falls in petrochemical raw material costs for auto production in Asia and Europe offset a rise in the US, ICIS analysis showed on Wednesday. -
(ACC Mentioned) Afton Chemical Reinforces Commitment to Responsible Care with New Certification
Aug 11, 2015 | Businesswire
Afton Chemical Corporation, a global leader in petroleum additives, has earned RC14001 and ISO 14001 certification for all US operations from British Standards Institute (BSI). “We have been fully committed to the principles of responsible care since the program was introduced” -
DOD Urged to Work on Predictive Toxicity Capacities
Aug 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Defense Department should build upon the growing number of toxicity prediction technologies and collaborate with other agencies to enhance its ability to predict harms that could result from acute chemical exposures, the chairman of a National Academies committee that studied the issue told Bloomberg BNA. -
No Reports of Human Harm From Colorado Mine Spill
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio and Tripp Baltz
Environmental Protection Agency Administrator Gina McCarthy called the massive release of toxic mining waste into a southwest Colorado river a “tragic and very unfortunate incident,” but said Aug. 11 the agency is “working around the clock” to respond. So far, there have been no reports of harm to human health from the accident, she said. -
McCarthy Will Travel To Colorado, New Mexico To Oversee Spill Response
Aug 11, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA Administrator Gina McCarthy will travel to Colorado and New Mexico tomorrow to oversee efforts to clean up large spill caused inadvertently last week by EPA workers. McCarthy will visit Durango, Colo., where EPA has set up a command center. She will also travel to Farmington, N.M., which is downriver from the spill. -
EPA Head To Visit Site Of Colo. Mine Waste Spill
Aug 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration’s top environmental official will visit Colorado and New Mexico Wednesday to inspect the recovery from a massive mine waste spill her agency caused. Environmental Protection Agency (EPA) Administrator Gina McCarthy will visit both Durango, Colo., where 3 million gallons of orange sludge spilled into the Animas River... -
EPA Chief To View Spill Damage Tomorrow In Colo., N.M.
Aug 11, 2015 | E&E News PM
By Jennifer Yachnin and Jean Chemnick
U.S. EPA Administrator Gina McCarthy will visit Colorado and New Mexico tomorrow to view the areas affected by last week's Gold King Mine wastewater spill, which pumped 3 million gallons of water laced with arsenic and other heavy metals into the Animas River. -
Potential Seen for 4,000 Fracked Wells in Delaware Basin
Aug 12, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
As many as 4,000 wells could use hydraulic fracturing in the Delaware River Basin to access natural gas in the Marcellus Shale if a moratorium on drilling in the area is lifted, according to a report released Aug. 11 by CNA, a nonprofit research and analysis organization in Arlington, Va. -
Revised EPA Drilling NSPS Makes Minor Change To 'Gas Wells' Definition
Aug 11, 2015 | InsideEPA
By Bridget DiCosmo
EPA has finalized its revised oil and gas drilling new source performance standard (NSPS) with a minor change to its regulatory definition of “low pressure gas wells,” in a bid to address industry uncertainty about which drilling sources are excluded from from having to meet the NSPS' reduced emission completion (REC) air control mandate. -
Crude Oil Production on Rise, EIA Report Finds
Aug 12, 2015 | BNA Daily Environment Report
By Rebecca Kern
U.S. crude oil production will reach the highest output in more than 40 years, the latest Energy Information Administration short-term energy outlook reported. The Aug. 11 outlook found that while the U.S. crude oil production in 2015 is expected to be 100,00 barrels per day less than previously forecast... -
Another View: Fracking Threatens Our Children’s Health
Aug 11, 2015 | The Sacramento Bee
By Barbara Sattler
They were clearly planted as a buffer, if only a visual one – a stand of trees, side by side, separating a children’s playing field, a day care center and grammar school from an extensive gas and oil field. On one side of the trees there are oil pump jacks, trucks and an elaborate pipe system. On the other side there are children, ages 2 to 12. -
McCarthy Confident in Clean Power Plan Legality
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The head of the Environmental Protection Agency is confident that the agency's carbon dioxide standards will be upheld in the courts and would be difficult for future administrations to reverse. EPA Administrator Gina McCarthy said Aug. 11 that the agency's Clean Power Plan is “quite legally solid... -
North Carolina Will Sue Over Clean Power Plan
Aug 11, 2015 | PoliticoPro - Whiteboard
By Darren Goode
North Carolina plans to sue over EPA’s Clean Power Plan, a spokeswoman for the state’s Department of Environment and Natural Resources told POLITICO. “We do plan to file suit against this but we have not done so yet,” spokeswoman Crystal Feldman said. It is unclear whether North Carolina will sue as part of a larger legal challenge... -
Rule May Never Need To Be Revised -- McCarthy
Aug 11, 2015 | E&E News PM
By Jean Chemnick
U.S. EPA's Clean Power Plan will be so effective at incentivizing a shift to lower-carbon sources of power that the agency may never find it necessary to tighten its emissions limits, Administrator Gina McCarthy said today. Speaking at an event hosted by Resources for the Future, McCarthy said the existing power plant... -
EPA Confident In Climate Rule’s Future
Aug 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is confident that neither a federal court nor a future president could overturn its landmark climate rule for power plants. EPA Administrator Gina McCarthy said the rule is squarely legal under the Clean Air Act, and it’d be extraordinarily difficult for a future president, hostile to the regulation, to undo it.“ -
A Tipping Point In The Politics Of Climate Change
Aug 11, 2015 | Environmental Defense Fund
By Keith Gaby
While solving climate change is the right thing to do, it hasn’t always been considered a smart political move. Like any issue where action needs to be taken now to avoid bad consequences later, opponents have exploited people’s reluctance to make change today in service of a better future. -
Chamber Ramping Up Attacks On Ozone Rule
Aug 11, 2015 | The Hill - E2 Wire
By Tim Devaney
The business lobby is ramping up efforts to sack a controversial air pollution rule from the Obama administration. The Environmental Protection Agency (EPA) is preparing to levy new ozone rules in October that are intended to cut down on air pollution around the country. Communities that don’t comply with the ozone rules ... -
Bill Report Tells EPA to Suspend Advisers' Activities
Aug 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
All reviews conducted by the Environmental Protection Agency's Science Advisory Board would have to be suspended under language included in the House report accompanying the agency's fiscal year 2016 appropriations. The report directs the EPA's Science Advisory Board (SAB) to develop a variety of draft policies... -
Florida Leads Multistate Suit to Block EPA Air Quality Rules
Aug 11, 2015 | Bloomberg
By Andrew M Harris
Florida sued to block a U.S. Environmental Protection Agency rule that would require 35 states to take additional steps to cut carbon emissions from power plants. The lawsuit, filed in a federal appeals court in Washington and joined by 16 other states, presages another state battle... -
EPA Sets Sulfur Dioxide Data Requirements
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency issued final requirements for state air agencies to gather data necessary to implement the one-hour national ambient air quality standard for sulfur dioxide. The final rule, signed by EPA Administrator Gina McCarthy Aug. 10, establishes three options to assess... -
Modeling Or Monitoring? EPA Will Let States Choose For SO2
Aug 11, 2015 | E&E News PM
By Amanda Peterka
U.S. EPA will allow states to choose between modeling and monitoring to determine areas that comply with the sulfur dioxide standard. The agency yesterday finalized a rule giving states the choice, over objections by industry and some states that modeling was not sophisticated enough to serve as a basis for policy decisions. -
17 States Join Litigation Over EPA Civil Penalty Rule
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of 17 states has joined numerous industry groups in challenging an Environmental Protection Agency rule that requires states to remove civil penalty shields from their plans to address excess air pollution during periods of startup, shutdown and malfunction (Florida v. EPA, D.C. Cir., No. 15-1267, 8/11/15). -
EPA's SO2 NAAQS Data Rule Drops Population-Based Air Monitoring Plan
Aug 11, 2015 | InsideEPA
By Stuart Parker
EPA in a final data rule for implementing its sulfur dioxide (SO2) air standard has dropped a proposed novel plan to require emissions monitoring or modeling based on population levels, saying it will instead use a uniform emissions threshold nationwide due to concerns that the population-based method would be less protective of public health. -
Final EPA Water Quality Rule Clarifies Provisions But Rejects Major Changes
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA's newly finalized rule governing state water quality standards (WQS) appears to meet state groups' requests for greater clarity and flexibility in the rule's provisions, while rejecting calls from industry and environmentalists to either scale back or expand the policy's scope despite the groups' warnings of legal threats to force the changes. -
EPA Urges Court To Reject Rehearing Bid In Suit Over CWA Testing Memos
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA is urging a federal district court to deny wastewater utilities' bid to rehear a ruling rejecting the utilities' request for judicial review of agency memos that allegedly mandated strict new testing procedures for Clean Water Act (CWA) permits, claiming the utilities have not met the procedural burden of proving rehearing is warranted.
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(ACC Mentioned) Global IBAP Drops Showing Falling Petchem Costs For Auto Production
Aug 12, 2015 | ICIS News
By Mark Victory
The Global ICIS Basket of Automotive Petrochemicals (IBAP) has fallen by $4.49/tonne of total vehicle weight (TTVW) month on month in July as falls in petrochemical raw material costs for auto production in Asia and Europe offset a rise in the US, ICIS analysis showed on Wednesday.
US IBAP rises in July meant that the US further entrenched its position as the region with the highest petrochemical raw material production costs for automotives. The Asian IBAP remains the lowest, and this became more pronounced as the fall in the Asia IBAP outstripped falls in Europe.
Prices have been falling in Asia amid bearish macroeconomic conditions in China.
Price falls in Europe were predominantly driven by polypropylene (PP) cost falls, as supply improved following several months of extreme tightness.
Nylon was the largest contributor to the rise in the US IBAP. Nylon prices rose on upstream benzene increases. Nevertheless, nylon values subsequently fell by $30/tonne in August.
Regional IBAPs are weighted based on the percentage amount of each petrochemical used in an average passenger car to give a petrochemical-based raw material cost per tonne of overall vehicle weight. The regional IBAPs are then weighted based on each region's share of the global car production market to give a Global IBAP cost per tonne of a vehicle.
The IBAP comprises prices for PP, PE, ABS, nylon, polyvinyl chloride (PVC), PC, isocyanates, polyols, SBR, polyethylene terephthalate (PET), base oils and soda ash. In Asia and Europe, the IBAP additionally includes prices for POM and PBT, which ICIS does not cover in the US. Weightings are based on American Chemistry Council (ACC) and European Automobile Manufacturers Association (ACEA) data.
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(ACC Mentioned) Afton Chemical Reinforces Commitment to Responsible Care with New Certification
Aug 11, 2015 | Businesswire
Afton Chemical Corporation, a global leader in petroleum additives, has earned RC14001 and ISO 14001 certification for all US operations from British Standards Institute (BSI).
“We have been fully committed to the principles of responsible care since the program was introduced”
Responsible Care® was created to enable leading chemical companies to achieve even higher standards of performance and generate greater value for their businesses. Afton Chemical, as a member of the American Chemistry Council and founding member of the Responsible Care initiative, made a commitment to achieve RC14001 certification.
“This certificate underscores our commitment to the responsible development, manufacture, transportation and handling of our products everywhere we operate. I am very proud of our team and their visible support of Responsible Care.”
“This was no small feat,” says Todd VanderVen, President, BSI Group Americas. “Afton Chemical’s achievement of Responsible Care certification demonstrates the implementation of effective and proven management practices as evaluated by a rigorous assessment, and the ongoing evaluation of those practices by a third party. It’s a very big commitment to improvement.”
The RC14001 certification must be provided by an accredited third party, like BSI, an international standards organization operating under British Royal Charter since 1929. BSI is also independently assessed and accredited globally by ANAB (ANSI-ASQ National Accreditation Board) and by over 26 other accreditation bodies throughout the world.
About Afton Chemical
Afton Chemical Corporation, is part of the NewMarket Corporation (NYSE: NEU) family of companies. Afton uses our formulation, engineering and marketing expertise to help our customers develop and market fuels and lubricants that reduce emissions, improve fuel economy, extend equipment life, improve operator and driver satisfaction and lower the total cost of vehicle and equipment operation. We are leaders in fuel economy improvement, emission reduction and wear control technology. We offer performance fuel additives and refinery chemicals, such as gasoline and diesel performance additives, lubricity improvers, and cold flow improvers; driveline additives, such as automotive gear oil and automatic transmission fluid additives; engine oil additives for passenger car, heavy duty diesel and railroad and marine diesel engines; additives for industrial products, such as wind turbine lubricants, industrial gear oils, turbine oils, hydraulic oils, grease, slideway oils, metalworking fluids and industrial specialty chemicals. The company supports global operations through regional headquarters located in Asia Pacific, EMEAI, Latin America and North America. Afton Chemical Corporation is headquartered in Richmond, Virginia. For more information, visit AftonChemical.com
About BSI
One Company, One Solution. By packaging assessment, training and a management system toolset, BSI delivers a business improvement solution that combines it all in a comprehensive service offering and allows us to provide an integrated approach to meet the needs of the organization and embed excellence across the business. BSI presents a one-stop value proposition from the decision to improve systems through to registration and continual improvement. From start to finish, BSI helps turn complexity into simplicity.
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DOD Urged to Work on Predictive Toxicity Capacities
Aug 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Defense Department should build upon the growing number of toxicity prediction technologies and collaborate with other agencies to enhance its ability to predict harms that could result from acute chemical exposures, the chairman of a National Academies committee that studied the issue told Bloomberg BNA.
Off-the-shelf computer models and existing automated screening tests that predict acute toxicity do not fully serve the department's need to predict harm from chemicals that could be used to debilitate soldiers, David Dorman, who chaired the Committee on Predictive-Toxicology Approaches for Military Assessments of Acute Exposures, said Aug. 10.
The committee published on July 20 its report, “Application of Modern Toxicology Approaches for Predicting Acute Toxicity for Chemical Defense.”
DOD Urged to Collaborate
The report urged the DOD to leverage its toxicity development efforts with those under way at the Environmental Protection Agency and elsewhere.
The collaboration could help the department develop high-throughput screens and computer models that predict toxicity from brief, high-concentration exposure to chemicals. The DOD largely uses traditional animal toxicity methods to evaluate chemicals, but those are no longer feasible, the report said.
The reasons it cited were the tens of thousands of chemicals that may pose a risk to troops, the amount of time and money traditional animal-based tests require, concerns about the applicability of animal tests to human populations and concerns about animal welfare.
Three-Part Approach Recommended
The committee of the National Academies of Sciences, Engineering and Medicine recommended that the DOD adopt a multi-year three-part approach to move toward the use of predictive toxicology. The three components are:
• a conceptual framework based on the idea that chemical structure, physicochemical properties, biochemical properties and biological activity in isolated cells and tissues and in nonmamalian organisms can be used to predict acute mammalian toxicity;
• a suite of databases, assays, models and tools the department could use to predict acute toxicity; and
• a prioritization strategy that categorizes chemicals into ones expected to cause minor or major concerns along with a category of uncertain toxicity due to lack of data. Chemicals of uncertain toxicity would be subject to further analysis.
The committee urged the Defense Department to work with other programs to develop predictive toxicity capacity, particularly the EPA's Toxicity Forecaster program, or ToxCast™ program.
Launched in 2007, ToxCast uses automated chemical screening technologies, called high-throughput screening assays, to expose living cells or parts of cells, such as proteins, to chemicals. The technologies then measure biological activity.
Growth in Predictive Toxicity Methods
Dorman, a toxicologist teaching at North Carolina State University, said the DOD report shows the dramatic growth in predictive toxicology methods since 2007, when the National Academies published “Toxicity Testing in the Twenty-first Century: A Vision and a Strategy.”
That report urged the federal government to undertake a wholesale transformation in its approach to toxicity testing (113 DEN A-3, 6/13/07).
The DOD's Defense Threat Reduction Agency, which researches chemical and biological threats, did not respond to Bloomberg BNA's request for comment on the July 20 report.
Need for Dermal, Inhalation Tools
Catherine Willett, director of regulatory toxicology at the U.S. Humane Society, said the new report outlines a strategy the DOD could use to develop methods to predict toxicities that are particularly relevant to its needs—harm that could be done by a chemical touching the skin or eyes and harm that could be done by inhaling a chemical.
“These two routes of exposure for acute toxicity are underrepresented by available in silico and in vitro methods,” Willett said in an e-mail. In silico refers to computer simulations, while in vitro refers to tests taking place in a test tube, culture dish or elsewhere outside a living organism.
A focused DOD effort on these prediction capacities leveraged with existing federal activities such as ToxCast would help the department and improve toxicity tests in general, she said.
September Workshop on Toxicity Testing
Amy Clippinger, associate director of regulatory testing at People for the Ethical Treatment of Animals, told Bloomberg BNA that many efforts are under way or recently completed that could contribute to the DOD's implementation of the academies' recommendations.
These include the European Commission's Sixth Framework Programme ACuteTox Project and the European Union Reference Laboratory for Alternatives to Animal Testing's (EURL ECVAM's) strategy to replace, reduce and refine the use of animals in the assessment of mammalian acute systemic toxicity, Clippinger said in an e-mail.
Clippinger also noted that an upcoming workshop on alternatives to acute systemic toxicity testing is scheduled for Sept. 24-25 at the National Institutes of Health in Bethesda, Md.
The workshop, titled “Alternative Approaches for Identifying Acute Systemic Toxicity: Moving from Research to Regulatory Testing,” has been organized by the Physicians Committee for Responsible Medicine, the PETA International Science Consortium Ltd. and the National Toxicology Program Interagency Center for the Evaluation of Alternative Toxicological Methods.
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No Reports of Human Harm From Colorado Mine Spill
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio and Tripp Baltz
Environmental Protection Agency Administrator Gina McCarthy called the massive release of toxic mining waste into a southwest Colorado river a “tragic and very unfortunate incident,” but said Aug. 11 the agency is “working around the clock” to respond.
So far, there have been no reports of harm to human health from the accident, she said.
“It pains me to no end to see this is happening,” McCarthy said Aug. 11 at an event in Washington, D.C., adding that the EPA is taking responsibility and is aiming to ensure the health and safety of residents near the Animas River, turned orange by the release of 3 million gallons of toxic mining wastewater—three times larger than originally estimated.
Meanwhile, Colorado Gov. John Hickenlooper (D), speaking from Durango, Colo., Aug. 11, said the spill triggered by EPA contractors was “in every sense unacceptable.” Hickenlooper visited the area affected by the accidental release that occurred Aug. 5 when EPA contractors used heavy equipment to enter the abandoned Gold King Mine along the upper Cement Creek near Silverton, Colo.
Full Accountability
“We share the anger that something like this could happen,” he said, adding that he expects there will be a full process of accountability for the EPA.
McCarthy, who was planning to travel to the affected region Aug. 12, said the EPA has researchers and scientists are working to address the effects of the spill. She said the agency has a unified command center in Durango and an emergency operations center at EPA headquarters in Washington, D.C., to ensure a “seamless and coordinated response.”
“We want to make sure that we protect people's health and the resources, but we want to do this right based on the science,” she said, adding it takes time to analyze and review data.
Samples taken from the Animas after the spill indicate the presence of contaminants such as aluminum, arsenic, barium, cadmium, calcium, copper, lead, manganese, selenium and zinc at levels hundreds or even thousands above federal and state limits, the EPA said.
Closed Intakes
Public drinking water systems in the area—including that of Durango, with a population of 17,000—have shut down their intakes from the river. Water systems in Colorado, New Mexico and Utah have been affected.
The Animas flows through Durango into the San Juan River in New Mexico, which then empties into the Colorado River at Lake Powell in Utah. As of 3 p.m. Aug. 11, the plume had reached a point eight miles west of Farmington, N.M., according to a daily EPA news briefing on the incident.
“We are committed to helping people throughout the Four Corners region who rely on these rivers for drinking water, irrigation and water recreation because we really know how important it is to them,” McCarthy said. The agency is providing bottled water to people with private drinking water wells in the area, she said.
‘See Firsthand.’
Sen. Tom Udall (D-N.M.), Sen. Martin Heinrich (D-N.M.) and Rep. Ben Ray Lujan (D-N.M.) issued a joint statement Aug. 11 saying it was critical for McCarthy to see firsthand the effects of the spill.
At the news briefing, David Gray, from the office of external affairs for EPA's Region 6 office in Dallas, said the water quality in Durango and other parts of San Juan County, Colo., is returning “back to a pre-incident level.” EPA has said it will not consider re-opening closed areas of the Animas until Aug. 17.
“Downstream users are being addressed through Regions 6 and 9 of EPA,” he said. “We are assessing conditions as the plume merges with the San Juan River and becomes more dispersed as it goes downstream.”
EPA workers at the mine site, at a high-altitude area marked by historic mining activity, were entering the abandoned mine with the goal of pumping and treating the wastewater, McCarthy said.
Owner Statement
The owner of the Gold King Mine, San Juan Corp. of Golden, Colo., issued a statement Aug. 7 saying it has never mined the property or contributed to “existing environmental conditions” there.
The company believes that much of the contaminated water at the mine originated from another mining source and migrated to the Gold King Mine, said Nancy Agro, an attorney in Durango who provided the company's statement to Bloomberg BNA.
The company “has worked cooperatively with the EPA to create a viable long-term solution to the problem that has existed since 2003 and will continue to work with the EPA to secure land for additional water treatment retention ponds to address the containment and treatment of mine water,” Agro said.
McCarthy said she expects there will be lawsuits over the spill. “Right now my focus is to make sure that we address the spill that is happening,” she said. “We certainly will be available and we will be working through these legal issues.”
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McCarthy Will Travel To Colorado, New Mexico To Oversee Spill Response
Aug 11, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA Administrator Gina McCarthy will travel to Colorado and New Mexico tomorrow to oversee efforts to clean up large spill caused inadvertently last week by EPA workers.
McCarthy will visit Durango, Colo., where EPA has set up a command center. She will also travel to Farmington, N.M., which is downriver from the spill.
EPA employees were working at a long-abandoned gold mine in Colorado when they accidentally breached a wall and released 3 million gallons of wastewater that contained lead, arsenic and other heavy metals.
The deluge turned the normally blue Animas River a sickly yellow. Officials and local residents have stopped drawing water from the river until EPA deems it safe. There have not yet been any reports of sickness, and McCarthy said this morning that initial testing already shows toxicity levels on “a downward trajectory toward pre-event conditions.”
The agency has kept the White House updated, according to McCarthy.
McCarthy said earlier today that the accident is “tragic” and that he agency “is taking responsibility to ensure that it is cleaned up.”
She also apologized that EPA had caused such pollution when its mandate is to protect water quality. "I am absolutely, deeply sorry that this ever happened," she told reporters. -
EPA Head To Visit Site Of Colo. Mine Waste Spill
Aug 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration’s top environmental official will visit Colorado and New Mexico Wednesday to inspect the recovery from a massive mine waste spill her agency caused.
Environmental Protection Agency (EPA) Administrator Gina McCarthy will visit both Durango, Colo., where 3 million gallons of orange sludge spilled into the Animas River, and Farmington, N.M., about 50 miles downstream, where the Animas flows into the San Juan River, EPA spokeswoman Liz Purchia said Tuesday.Officials have closed off both rivers while they test the heavy metals and determine the potential harm from the spill and the next steps. The governors of both states have declared states of emergencies.
McCarthy and state and federal EPA officials have been under intense pressure and harsh criticism since last week’s spill, caused by EPA contractors inspecting the Gold King Mine, which was abandoned in the 1920s.
Earlier Tuesday, McCarthy apologized for the spill and pledged to do all she could to help.
“It is really a tragic and very unfortunate incident, and EPA is taking responsibility to ensure that that spill is cleaned up,” she said. “I am absolutely, deeply sorry that this ever happened.”
Local and state officials have been pushing the EPA to be more transparent about what was spilled and its impacts on the river and communities.
Colorado’s Rep. Scott Tipton (R) and Sens. Cory Gardner (R) and Michael Bennet (D) had asked McCarthy to visit their state.
After her announcement, the lawmakers are now demanding a concrete plan from the EPA to clean up the river.
“The cleanup and mitigation plan should include information on what short and long term water quality tests the EPA will conduct on the Animas River and surrounding watersheds, how often samples will be taken, and when the fully-interpreted, toxicologically-relevant results will be released to the public,” they wrote.
Gardner additionally has called for congressional hearings into the spill, and for federal officials to hold the EPA to the same standard that it holds private companies that pollute.
Other lawmakers are also watching.
Sen. James Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, said his panel is keeping a close eye on how the EPA handles the situation, and House Science Committee Chairman Lamar Smith (R-Texas) demanded that the agency release more information about the incident.
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EPA Chief To View Spill Damage Tomorrow In Colo., N.M.
Aug 11, 2015 | E&E News PM
By Jennifer Yachnin and Jean Chemnick
U.S. EPA Administrator Gina McCarthy will visit Colorado and New Mexico tomorrow to view the areas affected by last week's Gold King Mine wastewater spill, which pumped 3 million gallons of water laced with arsenic and other heavy metals into the Animas River.
McCarthy's decision comes in the wake of pleas from area lawmakers and Colorado Sen. Cory Gardner's (R) call for oversight hearings into EPA's response to the spill.
Earlier in the day, Colorado Gov. John Hickenlooper (D) said he hoped the accident could have a "silver lining" if it prompts a more aggressive effort to clean up mining pollution in Western states.
Hickenlooper spoke during a visit to Durango, Colo., and the Animas River, which turned yellow last week when a U.S. EPA team investigating mining contamination at Gold King Mine triggered a massive spill of wastewater contaminated with arsenic and heavy metals.
During his visit, Hickenlooper -- who released up to $500,000 in emergency funding yesterday to address the spill -- also said the river would reopen for recreation in the coming days, according to the Associated Press.
The Colorado Department of Public Health and Environment said the river's metal content is already at its pre-spill levels, The Durango Herald reported.
But three Colorado lawmakers called today for EPA Administrator Gina McCarthy to visit the state to address the agency's mistake and subsequent cleanup in a public meeting.
"Local residents, recreationalists, and business owners need to know that EPA will commit to a full cleanup of the accident and work to ensure the full environmental and economic recovery of the affected area," wrote Sens. Cory Gardner (R) and Michael Bennet (D) and Rep. Scott Tipton (R).
The lawmakers added: "Residents remain uncertain as to the dangers posed by this spill, as well as the timeline and recovery plan EPA intends to execute. Gaining an on-the-ground understanding of the situation is important to EPA's response and area residents and officials would appreciate your in-person commitment to an expeditious and thorough cleanup and recovery."
In a subsequent statement, Gardner criticized EPA's response to the spill as "outrageous, reckless and unacceptable."
"That is why I am requesting Congressional oversight hearings to examine the EPA's insufficient response and to ensure that the EPA is held to the same recovery standards as the private sector," he said. "Although the EPA has finally acknowledged the magnitude of the crisis, its ongoing lack of communication and coordination must be rectified. The local communities and industries that rely on the river for their livelihoods deserve transparency, accountability, and an explanation that is far-past due."
At an event in Washington, D.C., today -- McCarthy's first public appearance since EPA released its Clean Power Plan last week -- the administrator found herself fielding questions on the agency's role in the mine remediation disaster rather than on its signature climate change rule (see related story).
In statements and in response to questions from reporters, McCarthy said she's briefing the White House about EPA's role in contaminating the Cement Creek. She also touted what EPA has taken to address it, including setting up response and claim centers in Durango and EPA's D.C. headquarters.
"We've developed and deployed the full breadth of the agency, as well as our partners," she said. "As you all know, we have researchers and scientists at EPA, and they are working around the clock."
McCarthy promised an independent review of the accident's causes and said she expected "concerns and lawsuits." But she stopped short of an outright admission of negligence on the part of the agency.
"I am absolutely deeply sorry that this ever happened, but I want to make sure that we react positively and in a way that's credible and that we move this forward," she added.
McCarthy told reporters following the event hosted by the think tank Resources for the Future that the affected waters would be reopened for recreation when researchers were certain it would not endanger public health.
"We are not going to take risks," she said. McCarthy also said the wastewater plume -- which is expected to reach Lake Mead, the nation's largest reservoir -- does not appear to be permanently contaminating water.
She responded to questions about an early-response delay by saying, "I think we have a solid network in place now to be able to get this job done."
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Potential Seen for 4,000 Fracked Wells in Delaware Basin
Aug 12, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
As many as 4,000 wells could use hydraulic fracturing in the Delaware River Basin to access natural gas in the Marcellus Shale if a moratorium on drilling in the area is lifted, according to a report released Aug. 11 by CNA, a nonprofit research and analysis organization in Arlington, Va.
The analysis estimates future development of the interior Marcellus Shale region along the Delaware River Basin—which spans Pennsylvania, Delaware, New Jersey and New York—and attempts to quantify the potential impact to land cover, water and wastewater management, air quality, erosion and the health of roughly 45,000 people who could potentially live within one mile of a well pad if the area were developed.
The report was funded by the Delaware Riverkeeper Network, an environmental group dedicated to the health of the Delaware River.
“There is currently a moratorium on fracking in the Delaware River Basin and a ban in New York state,” Paul Faeth, one of the co-authors of the study, told reporters during a conference call Aug. 11. “This study was done to help answer the question of what would happen if the Delaware River Basin moratorium were lifted, as well as the New York state ban.”
The Delaware River Basin Commission (DRBC), the cross-state agency with legal authority over the moratorium on drilling in the basin, told Bloomberg BNA Aug. 11 that it has not changed its policies and is reviewing the report.
Rulemaking Considered by Commission
The commission, a federal-interstate agency that includes the governors of Pennsylvania, New York, New Jersey and Delaware, and the U.S. Army Corps of Engineers, has been discussing a rulemaking on natural gas drilling since 2011, but has not set a timeline on further draft regulations, according to the DRBC's website.
Pennsylvania Gov. Tom Wolf (D) supports the moratorium on drilling in the Delaware River Basin, spokesman Jeffrey Sheridan told Bloomberg BNA in an e-mail Aug. 11.
“The moratorium is a regional decision between Pennsylvania, New Jersey, New York and Delaware, and Governor Wolf supports it,” Sheridan said. “As additional research including this recent report becomes available, the Governor will review it in consultation with his colleagues to determine any future actions.”
Industry Says Production ‘Strongly Regulated
An organization representing natural gas producers said sufficient environmental protections regarding fracking already are in place.
“In reality, despite these so-called ‘findings,’ shale development and hydraulic fracturing are strongly regulated to ensure environmental protection as EPA's recent study as well as countless other independent researchers have concluded,” a spokesman for the Marcellus Shale Coalition told Bloomberg BNA in an e-mail.
“It's unfortunate, yet not unexpected, that some extreme anti-energy activists continue to fund and promote fear aimed at generating headlines rather than engaging in a dialogue based on verifiable facts and actual science.”
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Revised EPA Drilling NSPS Makes Minor Change To 'Gas Wells' Definition
Aug 11, 2015 | InsideEPA
By Bridget DiCosmo
EPA has finalized its revised oil and gas drilling new source performance standard (NSPS) with a minor change to its regulatory definition of “low pressure gas wells,” in a bid to address industry uncertainty about which drilling sources are excluded from from having to meet the NSPS' reduced emission completion (REC) air control mandate.
The agency's final rule, slated for publication in the Aug. 12 Federal Register, revises both the gas well definition and the original 2012 NSPS rule's requirements for storage tanks at oil and gas facilities. EPA is amending its proposed definition of “low pressure gas well” by changing “vertical depth” to “true vertical depth.”
“This change more accurately reflects our intent when formulating the definition of 'low pressure gas well,'” EPA says in the final rule. The definition is significant because it outlines the universe of wells subject to the REC controls, the landmark emissions control requirements in the NSPS first issued in 2012.
Industry groups petitioned EPA to clarify the scope of the rule after the agency released it, and EPA subsequently issued a proposed reconsideration to address some of the concerns raised.
EPA in its March 23 proposal took comment on an alternative definition submitted by the Independent Petroleum Association of America (IPAA).The group in August 2014 comments to the agency outlined concerns that EPA's definition would require REC air pollution controls to be performed on marginally cost-effective wells, and that the calculation required by the EPA's definition was based on inadequate data. EPA issued the new proposal to remedy the fact that IPAA's comments were not considered in the earlier rulemaking.
But in the Register notice for the final reconsidered rule, EPA says that the IPAA alternative suggestion is “too simplistic and may not adequately account for the parameters that must be considered when determining whether a REC would be feasible for a given hydraulically fractured gas well.”
The alternative definition would have been based on the fresh water hydrostatic gradient of 0.433 pounds per square inch per foot. EPA's definition is based on reservoir pressure and “true” vertical well depth "such that 0.445 times the reservoir pressure minus 0.038 times the vertical well depth (in feet) minus 67.578 pounds per square inch absolute is less than the flow line pressure at the sales meter.” EPA also amended the NSPS to eliminate provisions concerning storage vessels connected or installed in parallel and to revise the definition of "storage vessel" in response to industry concerns.
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Crude Oil Production on Rise, EIA Report Finds
Aug 12, 2015 | BNA Daily Environment Report
By Rebecca Kern
U.S. crude oil production will reach the highest output in more than 40 years, the latest Energy Information Administration short-term energy outlook reported.
The Aug. 11 outlook found that while the U.S. crude oil production in 2015 is expected to be 100,00 barrels per day less than previously forecast, it is still on track to reach the highest production level since 1972.
Separately, U.S. natural gas inventories are expected to be at their second-highest level on record by the end of October, when the heating season starts in parts of the country, EIA projected.
Despite the Mercury and Air Toxics Standards going into effect in 2015, EIA said the full effect of the rule on coal plant retirements won't be seen until 2016. With projections of increasing demand for electricity and higher natural gas prices, coal consumption will grow 1.3 percent in the electric power sector in 2016, the EIA forecast said.
Renewables Growth
On the renewables front, EIA noted that more than half of the electricity-generating units added online in the U.S. this year came from renewable energy sources, including solar and wind. EIA expects solar and wind capacity to continue to grow, with 18 gigawatts of wind added and 9 gigawatts of solar added between 2014 and 2016.
EIA predicts that utility-scale solar capacity will grow by 90 percent from the end of 2014 to the end of 2016, with more than half of this being built in California.
The agency noted that projects built before the end of 2016 can take advantage of a 30 percent federal investment tax credit, whereas projects built after 2016 will receive just a 10 percent investment tax credit.
“This impending decline in the tax credit provides a strong incentive for projects to enter service before the end of 2016,” the EIA report said.
Meanwhile, wind capacity grew by 8 percent in 2014, the EIA reported, which was also reported by the Energy Department in Aug. 10 studies on the recent surge in growth of the wind power sector(154 DEN A-9, 8/11/15).
The EIA forecast that wind capacity will increase by 12.8 percent in 2015 and by 13 percent in 2016.
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Another View: Fracking Threatens Our Children’s Health
Aug 11, 2015 | The Sacramento Bee
By Barbara Sattler
They were clearly planted as a buffer, if only a visual one – a stand of trees, side by side, separating a children’s playing field, a day care center and grammar school from an extensive gas and oil field. On one side of the trees there are oil pump jacks, trucks and an elaborate pipe system. On the other side there are children, ages 2 to 12.
The oil industry insists that fracking is safe (“Here’s what’s known about fracking risks,” Viewpoints, July 29). But the story of the children’s health is being foretold by the trees – they are all dead.
Pump jacks are found next to homes, nursing homes, hospitals and schools in many neighborhoods around California. If you live in Kern County, they can legally be on your fence line and there is nothing you can do about it, even if your child is asthmatic or your elderly family member struggles for breath.
With several of my nursing, medical and public health colleagues, I recently toured the gas and oil fields around Bakersfield with people from the community. I want to take Gov. Jerry Brown and Karen Smith, the new head of California’s Department of Health, on the same tour. I want them to have to breathe the air next to the unlined pits that are full of toxic liquids that go into our lungs, leach into the ground and are used to irrigate our table grapes and almonds.
My recent tour has left me with a certainty that this cannot continue. We have decided that populations who live near the oil and gas fields do not need protection. What kind of society throws their children into such harm’s way?
It is time to stop the forward motion of gas and oil and do everything we can to accelerate our drive toward job-creating renewable energy sources. It is time for a transparent plan that goes beyond “regulating” a health threat so that it is only a little less unhealthy.
Gov. Brown has an opportunity to decelerate gas and oil drilling and hasten our path toward safer energy sources – a path that will support a healthy economy, a healthy environment and healthy Californians.
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McCarthy Confident in Clean Power Plan Legality
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The head of the Environmental Protection Agency is confident that the agency's carbon dioxide standards will be upheld in the courts and would be difficult for future administrations to reverse.
EPA Administrator Gina McCarthy said Aug. 11 that the agency's Clean Power Plan is “quite legally solid,” though she acknowledged that the legality of the regulation will be debated “endlessly” over the next few years.
The final Clean Power Plan (RIN 2060-AR33), released Aug. 3, is projected to reduce carbon dioxide emissions from the U.S. power sector by 32 percent below 2005 levels by 2030. The agency dropped a proposed energy efficiency component of the rule that critics had argued would illegally require emissions reductions beyond the fence line of the power plants themselves, a move that attorneys said makes the final rule more legally defensible (149 DEN B-1, 8/4/15).
“It will stand the test of time in the courts,” McCarthy said during remarks at a Resources for the Future event in Washington, D.C.
The Clean Power Plan already was targeted by an early lawsuit that ultimately was dismissed by the U.S. Court of Appeals for the District of Columbia Circuit because the rule at the time was not yet final (In re: Murray Energy Corp., 788 F.3d 330, 2015 BL 180996 (D.C. Cir. 2015).
States and utilities that oppose the rule have asked the D.C. Circuit to rehear those challenges now that the rule has been signed (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, motions filed 8/6/15; 151 DEN A-5, 8/6/15).
Future Administrations Face ‘Significant' Hurdle
McCarthy, when asked how a future administration could alter the Clean Power Plan, said any effort to reverse it would face a “significant hurdle.”
She noted that there is a “pretty solid record” supporting the rule, dating back to the endangerment finding on power plant carbon emissions.
“When you have a final Clean Air Act rule, it's a pretty solid obligation,” McCarthy said.
By the time a new administration takes over in 2017, there will be a “significant number” of state plans outlining how states will move to comply with the rule, McCarthy said. The final Clean Power Plan requires states to file at least an initial submission by Sept. 6, 2016. Final plans would not be due until Sept. 6, 2018.
McCarthy Highlights Trading Benefits
The EPA chief touted the agency's draft model rule, released alongside the Clean Power Plan. The draft rule proposes two kinds of emissions trading programs, a mass-based trading program that would see the EPA establish state emissions budgets based on the total amount of carbon dioxide allowed, with allowances based on historical generation, and a rate-based program that would require power plants that don't meet a specific emissions standard to acquire a sufficient number of emissions rate credits to offset excess emissions (149 DEN B-4, 8/4/15).
McCarthy said the focus on emissions trading allows states to “leverage” the power of the market in order to multiply compliance options and minimize costs.
“No plant has to do this alone,” she said. “No state has to do this alone.”
The Clean Power Plan allows states to link into markets without requiring a formal mechanism to do so, McCarthy said. States will be able to maintain their independence without passing on “less-expensive” compliance options by informally dealing with other states that have the same type of trading program, be it mass-based or rate-based, she said.
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North Carolina Will Sue Over Clean Power Plan
Aug 11, 2015 | PoliticoPro - Whiteboard
By Darren Goode
North Carolina plans to sue over EPA’s Clean Power Plan, a spokeswoman for the state’s Department of Environment and Natural Resources told POLITICO.
“We do plan to file suit against this but we have not done so yet,” spokeswoman Crystal Feldman said. It is unclear whether North Carolina will sue as part of a larger legal challenge by other states or file on its own. “We’re weighing our options,” Feldman said.
North Carolina was not one of the 14 states that filed a legal challenge against EPA’s proposed greenhouse gas restrictions for power plants, nor was it among the 16 states who asked EPA to stay the final rule until lawsuits have been decided.
EPA has not yet published the rule in the Federal Register, a step that would open the door for lawsuits. Numerous states and industry groups are expected to challenge the rule in court. -
Rule May Never Need To Be Revised -- McCarthy
Aug 11, 2015 | E&E News PM
By Jean Chemnick
U.S. EPA's Clean Power Plan will be so effective at incentivizing a shift to lower-carbon sources of power that the agency may never find it necessary to tighten its emissions limits, Administrator Gina McCarthy said today.
Speaking at an event hosted by Resources for the Future, McCarthy said the existing power plant rule released Aug. 3 set a long-term market signal that would continue to encourage reductions even after its final compliance deadline.
"I have every expectation that we will go way ahead of what this actually calls for in 2030," she said.
If states and the private sector respond to the rule by accelerating the introduction of new technologies and bringing down the cost of reductions, an update to the Clean Power Plan may not be needed, she said.
"I never regret a regulation I don't have to do," she said.
The former state agency head said again that EPA based its flagship climate rule on policies some states had already implemented to reduce their emissions, apparently because they saw an economic advantage in doing so.
"States would not have gone out front at significant determent to themselves," she said.
Last year's draft version of the rule assigned many of these first-mover states much tougher targets because of past actions like the adoption of hefty regional renewable energy mandates or substantial investment in combined cycle natural gas facilities. The revised version goes much easier on first-mover states or states with diversified energy portfolios -- some of which would even be allowed to grow their emissions between now and 2030 under a mass-based compliance approach. But the final version increases its overall cut from 30 to 32 percent by 2030 compared with 2012 levels because it comes down much harder on states that remain overwhelmingly dependent on coal-fired power.
But McCarthy said in today's remarks that all states would find their compliance targets achievable. States can comply through efficiency or renewables or by shifting load away from coal-fired power plants and toward less emitting generators, she said. They can also trade credits or allowances even if they don't adopt a fully backed emissions trading scheme as their state implementation plan, she said.
"No plant has to do this alone, no state has to do it alone. They all have the resources of the grid at their disposal," she said.
McCarthy again trumpeted the substantial public outreach EPA performed in crafting the rule, calling it the "epitome of engagement." She expressed pride in how much the rule had changed as the result of comments received.
But some states that feel they came out on the losing end of last week's substantial reworking of state targets say they would have commented differently if they knew EPA would saddle them with so much more responsibility.
"We see this as a very significant impact on what we thought we could do under the proposed rule," said Kentucky Energy and Environment Secretary Leonard Peters in an interview.
Kentucky's obligation under the final rule changed from a proposed 18 percent cut by 2030 to a 39 percent reduction requirement.
"It is a dramatically different document from what we commented on," he said. "If we commented on this final rule, our comments would be very, very different."
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EPA Confident In Climate Rule’s Future
Aug 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is confident that neither a federal court nor a future president could overturn its landmark climate rule for power plants.
EPA Administrator Gina McCarthy said the rule is squarely legal under the Clean Air Act, and it’d be extraordinarily difficult for a future president, hostile to the regulation, to undo it.“When people get their arms around the final rule, they’ll see that it is legally solid,” McCarthy said Tuesday during an event organized by Resources for the Future, a nonprofit think tank.
“People will debate that, as they’ve debated everything, they will do that endlessly. But we feel pretty good about it,” she added.
McCarthy’s speech was the first time she had spoken publicly since the August 3 rollout of the rule by President Obama.
It asks the power sector to reduce its carbon emissions nationally by 32 percent, with each state having its own targets and leeway in implementing them.
Since the announcement, opponents have discussed various strategies to block or overturn the rules, focused mostly on the courts or waiting for a Republican president.
But McCarthy tried to shut down hopes of both strategies on Tuesday.
“The question that many of us ask after that is, ‘Well, what about the next administration?’” McCarthy said.
“When you have a final Clean Air Act rule, it’s a pretty solid obligation, and you need to have a substantial record indicating that things like the Endangerment Finding, which the Supreme Court has spoken to a number of times,” she said, referring to the EPA’s 2009 conclusion that greenhouse gases are harmful and should be regulated.
“A new administration, I think, will hopefully want to continue to support this,” McCarthy said of the next president. “And I think they’ll see state plans in and moving forward, a significant number, by the time there’s any transition in administration. And for those that don’t want to, it’s quite a significant hurdle for them to reverse this.”
McCarthy repeated many of the benefits of the rule that she had spoken about before it was released and that other administration officials have highlighted.
But she also said that the critics of the rule are overwhelmingly wrong about its impacts.
“They’ll say we’ve got to focus on the economy at the expense of the environment. They’ll claim our plan will shut the lights off or send utility bills through the roof,” she said. “Well, they are absolutely wrong.”
She went back to a frequent example from the EPA, its program in the 1990s to reduce emissions that cause acid rain.
“They predicted total doomsday,” McCarthy said. “That didn’t happen.”
Instead, those pollutants fell 60 percent, while electricity prices remained stable, she said.
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A Tipping Point In The Politics Of Climate Change
Aug 11, 2015 | Environmental Defense Fund
By Keith Gaby
While solving climate change is the right thing to do, it hasn’t always been considered a smart political move. Like any issue where action needs to be taken now to avoid bad consequences later, opponents have exploited people’s reluctance to make change today in service of a better future.
But when President Obama announced the final rule to stop unlimited carbon emissions from power plants last week, we may have hit a tipping point in the politics of climate change.
Congress wasted decades
Since climate change first emerged in the public debate several decades ago, it’s moved from worrisome to urgent – and from an ignored scientific novelty to a partisan wedge. For a long time, opponents of policies to act on climate simply dismissed the issue, or made fun of it.
But eventually, the weight of scientific evidence pushed them to adopt scare tactics about the cost of solutions, while ignoring the much higher price of failing to act. This strategy often worked.
In 1993, an attempt by the Clinton administration to address climate pollution was seen as politically risky by many in Congress. Then in 2010, the failure of comprehensive climate legislation to overcome a Senate filibuster was viewed in the same light.
In politics, it’s very often perception that counts. Even more than polling, elected officials rely on their own gut sense of public attitudes. So despite the majorities in favor of climate action, pollution limits, and clean energy, vulnerable members of Congress were reluctant to take action.
They worried too many people would yell at them, and that few would stand up in support.
Young voters demand action
But if you follow the issue closely, you can now sense that changing. Today, politicians no longer risk facing anger for daring to act on climate change, but for ignoring it.
More than 80 percent of voters under 35 – people who will dominate elections going forward and, through their power with advertisers and outlets, dominate our media landscape – want climate action. Polls show the public views those who dismiss climate change as out-of-touch.
And, importantly, those poll numbers match the way many elected officials are feeling about the politics of this issue. You can see that in the reactions to the Clean Power Plan by candidates up for re-election in swing states.
Part of this shift is also due to the fact the United States has now started to take serious action on climate. Meanwhile, none of the doomsday scenarios predicted by opponents have come to pass: The Obama administration limited greenhouse gas emissions and raised fuel efficiency in cars, and Detroit is doing better than it has in years.Utilities have begun to comply with an Environmental Protection Agency rule to limit toxic mercury pollution from fossil fuel power plants, and our electric system remains reliable.Big investments in renewable energy in the 2009 Recovery and Reinvestment Act helped spur dramatically lower clean energy costs.
Of course, turn on any news channel and you’ll hear some of the familiar noise and partisanship in reaction to the Clean Power Plan. Some Members of Congress and media personalities will use all the same hot rhetoric they’ve always used.
But underneath it you can feel the tipping point…tip. Standing up to say climate change is a hoax, or a minor problem to be ignored, is now the province of candidates seeking support from a vocal minority of more ideological voters.
Candidates in competitive general election races are loath to be labeled climate deniers – for fear of looking silly or out of the mainstream.
None of this means the fight is over. Climate change, which should be a scientific matter, is still wrapped around the axle of partisan politics – and unwinding it will take time.
But the shift in the political landscape is clear.
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Chamber Ramping Up Attacks On Ozone Rule
Aug 11, 2015 | The Hill - E2 Wire
By Tim Devaney
The business lobby is ramping up efforts to sack a controversial air pollution rule from the Obama administration.
The Environmental Protection Agency (EPA) is preparing to levy new ozone rules in October that are intended to cut down on air pollution around the country. Communities that don’t comply with the ozone rules risk losing millions in federal funding for transportation and other projects.
Climate activists say the rules are essential to protect the planet, but business groups say it could be the most expensive regulation in history.
The National Association of Manufacturers — which estimates the ozone regulation will cost $140 billion each year in lost economic growth and lead to 1.4 million fewer jobs — is launching advertising campaigns against the rule is places like Colorado and Washington, D.C.
The U.S. Chamber of Commerce is also joining efforts to knock down the ozone rule.
The Chamber’s Institute for 21st Century Energy is releasing a series of reports looking at the impact of the rule on local communities. In a report issued Tuesday, it claims the ozone regulation will reduce Nevada’s gross domestic product by $19 million between 2017 and 2040. This will lead to 6,000 fewer jobs each year.
Las Vegas could lose $346 million in federal funds slated for 10 transportation projects between 2018 and 2019, according to the report.
The Chamber released a similar report last month looking at the impact of the ozone regulation on Washington, D.C. It found the District is at risk of losing $511 million in federal funding for transportation projects between 2019 and 2020.
The EPA is looking to lower the air pollution limit to as low as 65 parts per billion from the current 75 ppb. This would force 331 new communities out of compliance with the rules, the agency estimates.
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Bill Report Tells EPA to Suspend Advisers' Activities
Aug 12, 2015 | BNA Daily Environment Report
By Pat Rizzuto
All reviews conducted by the Environmental Protection Agency's Science Advisory Board would have to be suspended under language included in the House report accompanying the agency's fiscal year 2016 appropriations.
The report directs the EPA's Science Advisory Board (SAB) to develop a variety of draft policies, including one to secure that 10 percent of its members work as state or tribal scientists, and to submit them to the National Academies of Sciences, Engineering and Medicine before the suspension can be lifted. The SAB is the primary forum through which the agency's proposed research, draft scientific assessments and preliminary conclusions—including those that underlie regulatory decisions—are critiqued by nonagency scientists, economists and other experts.
The House Committee on Appropriations report directs the EPA to halt the board's advisory activities until the agency drafts and submits to the National Academies one or more policies addressing topics detailed in the report.
“EPA shall suspend all current and planned SAB reviews until such documents have been provided to the academy for review,” the House said in House Report No. 114-170.
The board is the umbrella name for more than a dozen subcommittees that, in recent years, have reviewed draft agency documents including the “Connectivity of Streams and Wetlands to Downstream Waters” report, a proposed approach to examining impacts of hydraulic fracturing on drinking water resources, and efforts the EPA is making to use computer modeling, high-throughput screens and other emerging toxicity testing methods to evaluate chemicals.
Specific Policies the Academies Would Review
The EPA is to draft policies describing how the advisory board will:
• ensure the quality and integrity of its scientific review process,
• convene advisory panels with at least 10 percent of the members being state and tribal scientists; and
• respond to public comments made during the board's reviews.
The EPA would have to develop an additional policy if it decides to specify financial information it could use to identify conflicts of interest or bias, the report said. In that case, the policy must address possible conflicts arising from former or current federal grants a scientist has received and public statements he or she has made, the report said.
The EPA is to submit the draft policy or policies to the National Academies for review. The academies are directed to certify to the appropriations committee that the agency's proposed policies would provide a clear, credible, objective framework under which the board would operate. The policies also must provide consistent conflict-of-interest rules and an appropriate balance of membership within SAB's advisory committees, the report said.
House Language Stands Absent Senate Objection
The report accompanies H.R. 2822, which would provide the EPA with $7.43 billion in FY 2016. That allocation would be 13 percent less than President Barack Obama requested and almost 9 percent less than the EPA's current funding levels.
The House has not voted on the bill, but the appropriations committee approved the bill and accompanying report June 18 (118 DEN A-1, 6/19/15).
The Senate report that accompanies its appropriations bill (S. 1645) does not have any language requiring the SAB to suspend its activities or develop specific policies.
Unless the Senate specifically objects to the House language and the SAB suspension is repealed in the conference report that would accompany the final funding bill, the House language stands, David Goldston told Bloomberg BNA. Goldston served retired Rep. Sherwood “Sherry” Boehlert (R-N.Y.) as chief of staff of the House Committee on Science from 2001 through 2006, and he now directs government affairs for the Natural Resources Defense Council.
“It [the report language] can't be enforced the way law is, but you ignore appropriators' instructions at your peril,” Goldston said.
‘Thinly Veiled Attempt to Weaken EPA.'
Rep. Eddie Bernice Johnson (D-Texas), ranking member of the House Science, Space and Technology Committee, told Bloomberg BNA by e-mail that ensuring transparency and balance in the selection of members of EPA's Science Advisory Board is worthwhile.
“That being said, this provision in the House Interior Appropriations bill is just another example of Republican efforts to derail, discredit, and slow EPA actions that go against the interests of big industry polluters,” Johnson said.
“These provisions represent a thinly veiled attempt to weaken the credibility of EPA's actions by undermining the agency's scientific review process,” she said.
The report language would create unnecessary hurdles that would delay the board's scientific advice, and ultimately EPA action, to protect the health and safety of every American, Johnson said.
Gina Solomon, deputy secretary for science and health at California's Environmental Protection Agency and a member of the agency's main, or “chartered,” SAB, used similar language in her e-mail to Bloomberg BNA.
“The requirement to suspend the SAB's work while EPA develops a new set of policies and procedures and then wait two years to have them reviewed by the National Academy is a thinly veiled attempt to stop EPA's science-based policies from moving forward,” Solomon said.
Policy ‘Change' Said to Be EPA's Practice
“The House report reflects a lack of understanding of EPA's current practice. The SAB already has policies and procedures related to scientific quality and integrity, and the current process already includes an evaluation of potential bias,” Solomon said.
All SAB members must currently provide information about all sources of funding, including grants, as well as public statements and positions relevant to any issue that is being discussed, she said.
These declarations are filed annually and are then updated by each SAB member prior to each meeting, relevant to the specific topic or topics of that meeting, Solomon continued.
“The policy ‘change' that the House report is calling for isn't a change at all—it's EPA's current practice,” Solomon said.
Goldston said “the report is written by a faction of the GOP that wants to eliminate EPA altogether.”
This faction is striving to accomplish its goal through a back door requirement that, essentially, places a requirement on the agency, but deprives the Congress and the public of a full, open debate on the matter, he said.
If the language were included in a bill, the president could veto the bill, Goldston said.
Procedure Makes Removal More Difficult
Tucking the requirement into a report that accompanies a much broader bill funding multiple agencies increases the likelihood that the provision will not be removed or objected to during the legislators' conference, he said.
The NRDC does not share the committee's premise that there is something fundamentally wrong with the Science Advisory Board, but it does not object to a requirement for a National Academies review of SAB's policies, he said.
There could be merit in discussing and thereby obtaining greater clarity on issues, such as what the implication would be of guaranteeing that 10 percent of a scientific panel consisted of state and tribal scientists, he said.
Perspectives on what constitutes conflicts of interest and bias also can be debated, Goldston said.
Debating such topics makes sense, or at least an argument can be made for the value of debating those topics, Goldston said.
The report language short-circuits the congressional process, he said.
Congressional Advocates Silent
Bloomberg BNA unsuccessfully sought perspectives from congressional supporters of the report language. The House Appropriations Committee did not respond to questions.
A spokesman for Rep. Frank Lucas (R-Okla.) referred all questions to the House Appropriations Committee. Lucas introduced the EPA Science Advisory Board Reform Act of 2015 (H.R. 1029) in February (38 DEN A-6, 2/26/15).
Similar to the House report, Lucas' bill would have required that at least 10 percent of the board's members be state, local or tribal government scientists.
Unlike the House report, Lucas' bill would not have suspended all SAB activities.
The House approved Lucas' bill 236-181 on March 17 (52 DEN A-14, 3/18/15).
Former ORD Directors Weigh In
A scientist and a risk assessor, each of whom served as head of the EPA's Office of Research and Development during the George W. Bush administration, offered insight into the impact suspending SAB would have. ORD does not oversee the Science Advisory Board, which is part of the EPA administrator's office, but much of the science and risk analysis work conducted by the ORD is reviewed by the board.
“Concern about the makeup of the SAB and its ad hoc panels is not new,” said George Gray, director of the George Washington University Center for Risk Science and Public Health.
“Questions about disciplinary, geographic and sectoral (i.e., state, private sector, academic) balance and the issue of potential conflicts of interest have been around for a long time.
“EPA has policies about how all of these are addressed,” said Gray who served as EPA's assistant administrator for research and development and a science advisor from 2005 to 2009.
“Perhaps reviewing and refining these policies and having them reviewed by academies would settle these long-standing issues,” Gray said.
Paul Gilman, who served as EPA's assistant administrator for Research and Development and Science Advisor from 2002 until 2004, said the SAB had just revised its policies for membership when he arrived at the agency.
“They became the model for other federal agencies,” said Gilman, who now is senior vice president and chief sustainability officer at Covanta, which owns and operates 45 energy-from-waste facilities around the world.
“Having said that, it is appropriate to scrutinize this sort of thing routinely. It is possible to analyze past membership to see if there is a systematic bias present. If there are Congressional concerns about bias, that is sufficient impetus for a review,” Gilman said.
However, Gilman said, “I worry that putting all SAB activities in abeyance while that is happening could create significant delay in the outside-EPA third party review of some of the EPA's most important technical documents.”
Gray echoed that sentiment.
Requiring all SAB activities be stopped until the revised polices are submitted to the academies would be disruptive, Gray said. The disruption, however, would provide a strong incentive for the agency to act quickly, he said.
Gilman said the academies has a fast-track mechanism to study issues that might minimize the delay in the SAB's work.
William Kearney, director of media relations for the National Academies, told Bloomberg BNA it is difficult to provide even a range of time and money for the requested review without more detail about what the House Appropriations Committee wants.
Committee consensus reports can take anywhere from roughly six months to two years and cost several hundred thousand dollars to more than a million dollars depending on their scope, Kearney said.
Faster methods are available, again, depending on the scope of the request and the outcome expected, Kearney said.
Representative Versus Scientific
The appropriations committee's instructions to the EPA that it should ensure state and tribal scientists constitute at least 10 percent of the Science Advisory Board prompted wide-ranging comment among those interviewed by Bloomberg BNA.
The topic also spurred debate during a May 20 Senate subcommittee hearing on the EPA Science Advisory Board Reform Act of 2015 (S. 543) that also contains the 10 percent mandate (98 DEN A-16, 5/21/15)
The Senate bill has not moved since that hearing.
Christopher Zarba, director of the SAB staff office, told Bloomberg BNA the mandate would conflate the goals of two separate types of advisory committees that each provide valuable advice to the EPA.
The two types of committees are representative committees, which consist of individuals selected to reflect the views of the entity or group they represent, and scientific and technical committees, which consist of professionals selected for their particular expertise.
Of the 20 federal advisory committees that serve the EPA, 13 have representatives of groups or organizations, such as community groups, the business community, nongovernmental organizations, state and local governments and tribal governments, according to information the agency's Office of Administration and Resources Management provided Bloomberg BNA.
Examples include the Clean Air Act Advisory Committee, Local Government Advisory Committee, National Advisory Council for Environmental Policy and Technology, National Environmental Justice Advisory Council and Pesticide Program Dialogue Committee.
The remaining seven panels are scientific and technical advisory committees.
These include the Clean Air Scientific Advisory Committee, Board of Scientific Counselors, Science Advisory Board and the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel.
“We love state and tribal scientists. They contribute greatly to our reviews and we use them at every opportunity. There just aren't that many to choose from,” Zarba said.
“In a typical public solicitation, state and tribal scientists typically represent a few percent of the applicants. As a result if we receive 130 applicants there may only be three to five state and tribal scientists to consider. In some solicitations we only received 30 to 40 applicants and may have no state and tribal scientists to consider,” he said.
Asked if he could provide a breakdown of the SAB's membership, Zarba provided Bloomberg BNA a chart that divided illustrative SAB committees into different organizations from which they came. The chart was originally prepared at the request of a member of Congress, he said.
Individuals were placed into various categories based not only on whether they were currently working in a specific position, working at a state agency for example, but whether they had worked in such an organization during their career, Zarba said.
Based on the SAB staff's calculations, about 13 percent of the committees' members represented state, local or tribal governments (see chart).
Sen. John Boozman (R-Ariz.), who introduced S. 543 and supports increasing state representation on SAB, disagreed with that approach to calculating how many state representatives served on the board.
“Counting all scientists who have performed such work at some point in their careers inflates the number. Many excellent scientists do perform work for the states. The intent of our bill is to ensure the states, which have a very important role to play in protecting our environment, are able to participate throughout the process,” Boozman said in an e-mail response to questions.
State Participants' Perspectives
Solomon, from CalEPA said, the 10 percent quota for state or tribal members on the SAB will be difficult to achieve without jeopardizing the board's ability to effectively exercise scientific oversight over the agency.
“The scientific issues that come before the board cover an enormous array of scientific disciplines and areas of expertise, so the top priority is for the board to have an appropriate array of experts who can evaluate EPA's work. States and tribes will rarely have true experts in some of the very technical areas of science that would be needed most of those experts are in academia,” Solomon said.
It makes sense to have state and tribal participation—as the SAB already does—but the idea of specific quotas for state representation on a science panel is a bad one, she said.
Henry Anderson, chief medical officer for the Wisconsin Division of Public Health, who serves on an SAB committee, told Bloomberg BNA state scientists have a lot of practical expertise, which the SAB will make extra effort to seek out for some panels.
Most state scientists are generalists, however, not the specialists the SAB typically needs, Anderson said.
Serving on SAB committees also takes a lot of time for state scientists, Anderson and Solomon said.
“To get two or three days off in a row is hard for a state official,” Anderson said.
Scheduling challenges have prevented him from serving on some committees, he added.
Solomon said she does as much of her SAB work as possible on her own time, so that her workday is focused on serving California's taxpayers.
“Using my own time, however, only works for reviewing documents and preparing comments. Traveling to meetings is another challenge. For example, I need to go through the process of obtaining out-of-state travel authorization from the governor's office when I go to D.C. for an EPA meeting,” she said.
“I usually spend the plane flights, airport time, and evenings trying to stay caught up while I'm away, but I always come back to quite a backlog,” Solomon said.
“I have found it to be very difficult to make the time to serve on EPA panels, and I'm one of the lucky ones since I'm in a state with a lot of other scientific staff, so I have colleagues who can help pick up the slack when I need to go to D.C.,” she said.
State Legislators Voice Concerns
The Council of State Governments West, however, is concerned that state scientists are insufficiently represented on SAB committees.
Council legislators representing Alaska, Colorado, Idaho, Hawaii and Washington wrote Sens. Mike Rounds (R-S.D.) and Edward Markey (D-Mass.) the day before the May 20 subcommittee hearing on S. 543.
The state legislators voiced numerous concerns about the lack of state representation, particularly, in water- and air-related advisory panels.
“States are largely underrepresented in EPA advisory panels,” the state legislators wrote.
Clint Woods, executive director of the Association of Air Pollution Control Agencies, said the organization is examining what appears to be a lack of state and local participation in SAB committees.
The association has nominated state scientists, but they often are not selected, Woods said.
There also seems to be a geographical imbalance, he said.
Many Western states, for example, have not had a scientist selected for SAB in years, he said
The association is working with the EPA to “diagnose” the problem, he said.
There may be criteria the EPA uses to select scientists—such as extent to which the expert has been published in peer reviewed journals—that make it difficult for a state scientist to be selected, Woods said.
State scientists may not know how to describe their expertise in ways that best demonstrate to the EPA that they have the necessary qualifications, he said.
“Both sides can probably do a better job,” Woods said. “We want to diagnose the problem correctly.”
States are better represented on the agency's Clean Air Act Advisory Committee, he said. That is one of the agency's 13 representative committees.
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Florida Leads Multistate Suit to Block EPA Air Quality Rules
Aug 11, 2015 | Bloomberg
By Andrew M Harris
Florida sued to block a U.S. Environmental Protection Agency rule that would require 35 states to take additional steps to cut carbon emissions from power plants.
The lawsuit, filed in a federal appeals court in Washington and joined by 16 other states, presages another state battle against the Obama administration over its Clean Power initiative announced Aug. 3.
The filing follows comments made by West Virginia Attorney General Patrick Morrisey last week that his state will lead 15 others in combating the Clean Power plan championed by President Barack Obama to stem climate change by reducing carbon emissions 32 percent by 2030.
Under those rules, states are required to submit plans for how their power utilities will cut their reliance on coal. Those state programs also require approval from the EPA.
The federal Clean Air Act allots to the states responsibility for meeting EPA-established air quality standards. The lawsuit filed by Florida Attorney General Pam Bondi attacks stricter regulations for carbon dioxide emissions during power plant start-ups, shut-downs and malfunctions.
“We will not step aside while the EPA, through heavy-handed federal overreach, threatens to upend a system that the EPA has approved multiple times and has provided a consistent, reliable framework” Bondi said Tuesday in a statement.
Among the states challenging the rule are Arizona, Georgia, Missouri, Ohio and West Virginia.
Wyn Hornbuckle, a U.S. Justice Department spokesman, declined to comment on the states’ petition.
The case is State of Florida v. U.S. Environmental Protection Agency, 15-1267, U.S. Court of Appeals, District of Columbia (Washington).
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EPA Sets Sulfur Dioxide Data Requirements
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency issued final requirements for state air agencies to gather data necessary to implement the one-hour national ambient air quality standard for sulfur dioxide.
The final rule, signed by EPA Administrator Gina McCarthy Aug. 10, establishes three options to assess local sulfur dioxide levels in areas with large emissions sources. The agency said data collected under the final rule will be used to complete area designations for the standard of 75 parts per billion.
The three options set out in the data requirements rule are:
• conducting ambient air quality monitoring in areas around sources that emit 2,000 tons per year or more of sulfur dioxide;
• modeling actual source emissions in areas around sources that emit 2,000 tpy; or
• setting an enforceable emissions limit for sources below the rule's 2,000 tpy threshold.
The data requirements rule (RIN 2060-AR19) supplements minimum sulfur dioxide monitoring requirements that were established in 2010 when the 75 ppb standard was set. The EPA said providing states with three options allows for a “flexible yet effective program” for determining air quality in priority areas.
The EPA, under the terms of a consent decree with the Sierra Club and the Natural Resources Defense Council, will take a phased approach to completing the area designations process for the 2010 sulfur dioxide standards. The agency designated 29 areas as being in nonattainment in 2013 but delayed its decision on the rest of the country due to inadequate data. Under the agreement, the EPA will make area designations three times between July 2016 and December 2020 (42 DEN A-19, 3/4/15).
Deadlines for Action Set
The data requirements rule establishes deadlines for state action that the EPA said will ensure that the necessary data will be available in time to inform the agency's area designations.
State air agencies will first be required by Jan. 15, 2016, to submit to the EPA a list of all sources within their jurisdiction that have sulfur dioxide emissions that exceed the 2,000 tpy limit, plus any additional sources that warrant air quality characterization.
States will then have until July 1, 2016, to decide whether they will use monitoring or modeling or set an enforceable emissions limit. Any new ambient air quality monitors would need to be operational by Jan. 1, 2017, and modeling analysis would be due to the EPA by Jan. 13, 2017.
If states decide to adopt emissions limits, those limits must be adopted, effective and enforceable by Jan. 13, 2017.
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Modeling Or Monitoring? EPA Will Let States Choose For SO2
Aug 11, 2015 | E&E News PM
By Amanda Peterka
U.S. EPA will allow states to choose between modeling and monitoring to determine areas that comply with the sulfur dioxide standard.
The agency yesterday finalized a rule giving states the choice, over objections by industry and some states that modeling was not sophisticated enough to serve as a basis for policy decisions. EPA's rule also establishes thresholds for which air pollution sources must be included in states' air quality analyses and schedules for providing data to EPA.
EPA said it may use the data resulting from the rule to determine the remaining areas around the country that don't meet the 2010 one-hour sulfur dioxide limit. Under the Clean Air Act, states must develop and put in place pollution control plans for "nonattainment" areas.
The rule "lays out a common sense, orderly approach for characterizing current air quality in areas with large SO2 sources," EPA said in a fact sheet. "In developing the rule, the EPA carefully considered stakeholder feedback obtained during an extensive outreach process."
EPA Administrator Gina McCarthy signed the final rule yesterday. It will be published shortly in the Federal Register.
EPA and states have historically made designation decisions on national ambient air quality standards using data gathered by physical air quality monitors. But the sulfur dioxide monitoring network has shrunk since its peak of 1,500 monitors in 1980, and about two-thirds of the monitors in the network are not located in appropriate places to adequately measure SO2 emissions.
EPA has been grappling with how to fill in the gaps. The agency in March 2014 released its proposal to allow states to choose between installing new monitors near SO2 sources and relying on computer models to assess the amount of sulfur dioxide in the air. EPA says modeling is a cheaper way for cash-strapped state agencies to determine air quality.
"Modeling and monitoring are both appropriate ways to assess local SO2 concentrations," EPA said about yesterday's rule finalizing that proposal, "and this flexibility allows an air agency to select a cost-effective approach that adequately characterizes each required area."
The Texas Commission on Environmental Quality had been among the entities most critical of EPA's plan, which argued that modeling overstates the amount of pollution emanating from a source. Environmental groups had welcomed the proposal and endorsed modeling as a means of characterizing air quality (Greenwire, July 23, 2014).
EPA's final rule also establishes a minimum threshold of 2,000 tons per year of sulfur dioxide for what emission sources must be included in air quality characterizations sent to EPA. The threshold represents a change from the proposal; EPA had proposed varying thresholds depending on the population of an area.
In another change, the final rule states that if an air quality agency adopts limits to ensure that a source stays below that 2,000-ton-per-year threshold, it does not need to include that source in its air quality data.
By Jan. 15 of next year, air agencies are required to submit to EPA a final list of sources that emit more than 2,000 tons per year of sulfur dioxide. By July 1, 2016, states are required to choose whether they'll use monitoring or modeling to characterize air quality around those sources. At that date, states will also be required to submit modeling protocols to EPA.
Air agencies that choose modeling will have until Jan. 13, 2017, to submit analyses to EPA, while states that choose monitoring must ensure that monitors are operational by Jan. 1, 2017.
EPA said the data obtained through the rule may be used to comply with a court order earlier this year that laid out a schedule for the agency to finish categorizing the country as in attainment or nonattainment with the 2010 SO2 standard. EPA in 2013 completed SO2 nonattainment designations for 29 areas in 16 states but left other decisions undone for a lack of information.
"For most areas," EPA said, "the data required by this final rule will be available in time to inform the designations made under the Court ordered schedule."
The March court order settled a lawsuit brought by environmental groups over EPA's failure to designate all the remaining areas of the country by a Clean Air Act deadline. Six states have appealed that settlement agreement (E&ENews PM, May 1).
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17 States Join Litigation Over EPA Civil Penalty Rule
Aug 12, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
A coalition of 17 states has joined numerous industry groups in challenging an Environmental Protection Agency rule that requires states to remove civil penalty shields from their plans to address excess air pollution during periods of startup, shutdown and malfunction (Florida v. EPA, D.C. Cir., No. 15-1267, 8/11/15).
The states, in a lawsuit filed Aug. 11 in the U.S. Court of Appeals for the District of Columbia Circuit, alleged the EPA “erroneously concluded” that the state implementation plans are substantially inadequate under the Clean Air Act.
The state petitioners are Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Kentucky and the North Carolina Department of Environment and Natural Resources.
The EPA rule (RIN 2060-AR68), issued in May, found that 36 state plans are deficient because they include affirmative defense provisions, which shield power plants and other industrial facilities from being subject to civil penalties for regulatory violations related to equipment malfunctions (100 DEN A-3, 5/26/15).
The state litigation is likely to be consolidated with several industry challenges filed in the D.C. Circuit to the affirmative defense rule. Lawsuits filed by the Utility Air Regulatory Group and other industry organizations have already been consolidated under a petition brought by the Southeastern Legal Foundation and Walter Coke Inc., the groups that first challenged the rule (Se. Legal Found. v. EPA, D.C. Cir., No. 15-1216, order consolidating cases filed, 7/30/15).
Texas Utility Files to Maintain Claim
Several additional industry entities have filed lawsuits in the D.C. Circuit over the affirmative defense rule, including Texas-based Luminant Generation Co. (Luminant Generation Co. LLC v. EPA, D.C. Cir., No. 15-1266, 8/10/15).
Luminant is only challenging portions of the rule that apply to Texas and previously filed a lawsuit in the U.S. Court of Appeals for the Fifth Circuit. The EPA has asked the Fifth Circuit to either dismiss or appeal that lawsuit, arguing that the D.C. Circuit is the appropriate venue, a request that industry petitioners oppose (Luminant Generation Co. LLC v. EPA, 5th Cir., No. 15-60424, response filed, 7/30/15; 148 DEN A-1, 8/3/15).
Luminant said in its petition that it maintains the Fifth Circuit is the appropriate venue for its lawsuit but that it filed in the D.C. Circuit as a “protective matter” to preserve its right to judicial review in case the Fifth Circuit grants EPA's motion to dismiss.
In recent days, two other industry groups, the National Environmental Development Association's Clean Air Project and the Union Electric Company also filed lawsuits over the affirmative defense rule with the D.C. Circuit (Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, D.C. Cir., No. 15-1265, 8/10/15; Union Electric Co. v. EPA, D.C. Cir., No. 15-1268, 8/11/15).
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EPA's SO2 NAAQS Data Rule Drops Population-Based Air Monitoring Plan
Aug 11, 2015 | InsideEPA
By Stuart Parker
EPA in a final data rule for implementing its sulfur dioxide (SO2) air standard has dropped a proposed novel plan to require emissions monitoring or modeling based on population levels, saying it will instead use a uniform emissions threshold nationwide due to concerns that the population-based method would be less protective of public health.
The final regulation, signed by EPA Administrator Gina McCarthy Aug. 10 ahead of its upcoming publication in the Federal Register, adopts a 2,000 tons per year (tpy) threshold that will trigger a duty for states to either monitor or use computer modeling to assess an emission source's SO2 output. EPA had previously said that it would allow states to decide whether they preferred to use modeling, or monitoring that industry says is more accurate.
EPA's “data requirements rule” outlines how states should track SO2 emissions to demonstrate compliance with the agency's 2010 SO2 national ambient air quality standard (NAAQS) of 75 parts per billion (ppb) under a one-hour averaging time, stricter than the prior 1971 NAAQS of 140 ppb over 24 hours and an annual standard of 30 ppb.
The one-hour averaging time created challenges for states because the existing network of SO2 monitors is insufficient to characterize emissions from all the SO2 sources that might compromise NAAQS attainment.
EPA initially suggested states might rely more on modeling than monitoring to solve this problem cost-effectively, however this generated a backlash by some states and industry concerned that inherently conservative assumptions in computer models would result in unjustified designation of areas in NAAQS “nonattainment.” Such areas must impose tougher pollution controls under the Clean Air Act than those attaining the standard.
The agency then shifted its position to allow states a free choice of monitoring or modeling. This approach necessitates the development of a new monitoring network, however, and the additional time required to establish the network has delayed by years designation of areas as either “attainment” or “nonattainment.”
Environmentalists and states sued the agency in the U.S. District Court for the Northern District of California over the delay, in Sierra Club and Natural Resources Defense Council v. EPA, culminating in a March consent decree schedule that now underpins the timing of EPA's SO2 NAAQS implementation plan.
Emissions Threshold
The chief difference between EPA's final rule and the May 13, 2014, proposed version appears to be the uniform emissions threshold of 2,000 tpy.
EPA had proposed to require, in addition, monitoring or modeling of sources emitting 1,000 tpy if they are located in metropolitan areas with a population of one million or more.
However, EPA says in the final rule that, “A number of commenters appeared to interpret the inclusion of a lower threshold for areas with higher population as being less protective of the public in less populated areas. The EPA wants to clarify that this was not the intention behind the population-inclusive options included in the proposed rule. The SO2 NAAQS, and all NAAQS, are intended to provide equal protection for citizens throughout the country.”
The agency adds that it received most comments on this aspect of the rule, with industry, states and environmental groups offering their views on monitoring thresholds. Some environmental groups pressed for lower, uniform standards, at, for example, 1,000 tpy. Some commenters asked for more complex factors to be considered when states decide which sources to monitor or model, such as smokestack height and topography.
EPA says that its suggestion of 1,000 tpy for sources located in areas with one million inhabitants or more was simply an effort to allocate limited resources where they are most needed.
Seeking to avoid accusations of unfairness to less-populated areas, the agency opts for 2,000 tpy -- a threshold that will result in states having to model or monitor fewer sources than proposed.
EPA in the final rule says that states will need to characterize the emissions of about 70 fewer sources, or 15 percent fewer than proposed, but that the remaining sources that states must model or monitor will still account for 86 percent of national SO2 emissions. Further, the number of covered sources may fall further as SO2 emissions continue to decline, driven by a move away from coal as fuel for power generation and installation of controls to comply with other rules, such as EPA's utility air toxics rule, EPA says.
Pollution Reductions
In the final rule, EPA also gives states and industry the option of adopting federally-enforceable measures to reduce a source's SO2 emissions below 2,000 tpy and avoid the source having to either monitor or model its emissions.
States must indicate whether they intend to model, monitor or reduce emissions from sources meeting the 2,000 tpy threshold by July 1, 2016. This is an extension of six months for states to choose between modeling and monitoring over the proposal, which set a deadline of Jan. 15, 2016, for this choice to be communicated to EPA.
The agency in the final rule notes that several states in their public comments pushed EPA to extend not only this deadline, but other key milestones in the establishment of the SO2 monitoring or modeling program.
Under the existing schedule, states must ensure that new monitoring networks are operational by Jan. 1, 2017. States opting for modeling must submit their modeling analyses by Jan. 13, 2017.
EPA intends to use three years of monitoring data, from 2017-2019, to designate areas attaining or in nonattainment with the SO2 NAAQS.
The agency in the final rule notes some criticism from environmental groups in their comments that the states will rely on only one year of emissions data -- the most recent available -- when deciding which sources meet the monitoring or modeling threshold going forward. If a source had an unusually low level of emissions during that year, it could escape the monitoring or modeling mandate, these groups argue.
SO2 Data
EPA dismisses these concerns, however, pointing to practicality of using one year of emissions data and not data gathered over a shorter or longer time frame.
“The EPA continues to believe that the most appropriate generally applicable basis for determining applicability of the air quality characterization requirements is the most recent available year of emissions data for a stationary source as reported to the EPA in accordance with any existing regulatory requirement,” EPA says.
“As we have previously explained, SO2 emissions are trending downward, due to numerous national and regional requirements that have recently been adopted and are taking effect. The Agency believes it is reasonable to account for this trend by basing applicability for this data requirements rule on the most recent available year of emissions,” the agency adds.
EPA similarly defends the use of tpy as the metric of choice when measuring emissions, as opposed to a shorter averaging time more attuned to the one-hour averaging time of the NAAQS. Figures expressed in tpy are more available than any other metric, EPA argues. Under the consent decree deadlines established in March, EPA must finish designation of a majority of areas of the country by December 31, 2017, except for areas using newly-established monitoring networks. For areas with new monitoring networks, the agency must complete designation by December 31, 2020.
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Final EPA Water Quality Rule Clarifies Provisions But Rejects Major Changes
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA's newly finalized rule governing state water quality standards (WQS) appears to meet state groups' requests for greater clarity and flexibility in the rule's provisions, while rejecting calls from industry and environmentalists to either scale back or expand the policy's scope despite the groups' warnings of legal threats to force the changes.
The final rule, which EPA signed Aug. 5 ahead of its pending publication in the Federal Register, updates for the first time since 1983 obligations for states' WQS policies under the Clean Water Act (CWA). Under the water law, states craft WQS to set the water quality goals for each class of waterbodies within a state, which are then implemented through regulation and guidance, including criteria for specific pollutants. EPA is charged with reviewing and either approving or rejecting states' WQS every three years, although it rarely meets that target.
The revised rule includes requirements for federal review of state standards; variances to standards; antidegradation mandates; limits on waterbodies' designated uses; compliance schedules in permits; and the conditions under which EPA will promulgate federal standards when it determines a state's rules to be "inadequate.”
The most substantial revisions from EPA's 2013 proposed version of the rule appear to be in the designated-use, variance and antidegradation sections, and generally address areas where states had asked for clarification on the meaning of new terms, or additional flexibility in crafting their policies.
Among other changes, new language in the final rule sets out procedures states can follow to determine a “highest attainable use” for a waterbody whose current designated use is unattainable; expands the range of reasons states can cite to allow degradation of a waterbody; and removes a proposed mandatory 10-year expiration date for variances that allow more lenient state standards in some circumstances.
“EPA heard many of the state concerns and addressed them. They may not have gone as far as we'd hoped, but they did address them. In general, I think the states are really happy with the dialog we had with EPA and that this is better than the proposed rule,” says one state water source of the final rule.
But the agency declined to make the extensive substantive changes that industry and environmental advocates sought in their comments on the 2013 proposed rule.
Industry groups in particular had urged EPA to drastically scale back its proposal, such as by deleting any claim to oversee states' non-binding antidegradation policies and by removing new mandates for use attainability analyses that industry has claimed are prohibitively expensive.
Instead, the new rule claims more authority for EPA to review state water policies, adding new statements that the agency has power to approve or reject states' use of variances and compliance schedules along with the antidegradation language.
Industry's Concerns
Industry signaled in comments that it would sue over the rule if EPA did not remove those claims. For instance, the Fertilizer Institute said that "EPA cannot lawfully delegate itself interpretive authority to decide how other agencies' policies for implementing WQS should be applied. The Proposed Rule acknowledges state and tribal authority and 'discretion,' but the operative provisions thereof would unlawfully interfere with their exclusive administrative authorities under the CWA.”
Despite industry opposition, EPA in the final rule also retained its proposed requirement for states seeking to renew a variance that loosens WQS for a waterbody to report on any best management practices used to reduce nonpoint sources of pollution there.
The CWA generally forbids EPA from crafting standards to control nonpoint pollution, reserving that authority for states, and in comments the American Farm Bureau Federation said the reporting clause for variances would “encroach on state primacy and exceed EPA’s CWA authority” by undermining that division.
EPA did agree with a request echoed by both state and industry to delete a provision that would have prevented regulators from removing a waterbody from the list of “high quality” waters subject to antidegradation standards solely because one or more pollutants fails to reach the goals expressed in CWA section 101(a)(2).
That section of the law establishes a target of ensuring waterbodies wherever possible allow for "protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water," typically referred to as ensuring a waterway is "fishable and swimmable."
The opponents argued that such a requirement interferes with states that select high-quality waters through waterbody-by-waterbody analysis, rather than using the more strict "parameter approach." Many industry groups argued that a rule essentially requiring the stricter approach would be illegal.
Environmentalists' Criticisms
The rule also retains provisions that environmentalists sought to change or scrap, including the antidegradation policies.
Despite calling for comments on whether the final rule should require states to adopt binding rules governing their antidegradation activities -- a mandate environmentalists have long sought -- the agency did not take that step. All states are required to develop the policies, which are aimed at protecting existing water quality at "high-quality" or "Tier 2" waters, but EPA has set few standards for what they must contain, and allows them to be published in non-binding guidance rather than regulation.
The updated rule also retains a more stringent standard for when EPA makes a “determination” that a state's WQS are inadequate to achieve the water law's goals -- which under the CWA triggers a requirement for the agency to craft and implement federal standards for the state.
Under the new rule, such a determination "must be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document is a determination for purposes of section 303(c)(4)(B) of the Act.”
The change comes from advocates' successful 2009 suit where they won a ruling that an EPA letter to Florida regulators seeking more protective standards for nutrients constituted a “determination” under the CWA even though the letter did not invoke the threat of federally crafted standards.
In its comments, Earthjustice said the change was “completely contrary to the purpose and intent of the Clean Water Act and Congress' intent that EPA play an oversight role to ensure the Act is implemented.” The new rule could make it more difficult for environmentalists to prevail in their ongoing efforts to force the agency to impose tougher requirements on nutrients in Mississippi River Basin states and to strengthen Washington state's pending toxics standards.
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EPA Urges Court To Reject Rehearing Bid In Suit Over CWA Testing Memos
Aug 11, 2015 | InsideEPA
By David LaRoss
EPA is urging a federal district court to deny wastewater utilities' bid to rehear a ruling rejecting the utilities' request for judicial review of agency memos that allegedly mandated strict new testing procedures for Clean Water Act (CWA) permits, claiming the utilities have not met the procedural burden of proving rehearing is warranted.
In its Aug. 11 filing, the Department of Justice (DOJ), arguing on EPA's behalf, says plaintiffs in the suit have not cleared the hurdles necessary to force the “extraordinary remedy” of the court reconsidering its ruling. U.S. District Court for the Eastern District of California Chief Judge Morrison C. England Jr. in a May 15 ruling said that the case was rendered moot after EPA withdrew the contested memos.
DOJ adds that even if the procedural steps have been met for rehearing, the utilities should lose on the merits because, it argues, they are misrepresenting an internal memo from state regulators to claim that California is planning to treat the agency's letters as binding even after the agency withdrew them. “This is not accurate. The internal California memorandum does not make any such statement,” DOJ says.
The Southern California Alliance Of Publicly Owned Treatment Works (SCAP) and Central Valley Clean Water Association (CVCWA) filed suit against EPA challenging a series memos to state officials seeking the use of certain toxicity tests in water permits, which SCAP claims amount to an illegal rulemaking approving those tests for CWA use without notice and comment.
England in his May 15 decision said the suit, SCAP v. EPA, was moot after the agency withdrew the memos. But SCAP is now touting a letter written by California environmental regulators that it says shows that the state still plans to mandate the tests outlined by EPA to make the case that the agency memos are having an ongoing effect.
However, in the Aug. 11 brief DOJ says that in order to win reconsideration the utilities must show that new evidence is truly “newly discovered” and that they performed a “due diligence” search for it or similar evidence before the court ruled. So far they have presented no evidence on either point, DOJ argues.
“The only evidence submitted by Plaintiffs is the declaration of Plaintiffs’ counsel that addresses when counsel or 'any representative of the Plaintiffs' learned of the internal California memorandum, not even describing how Plaintiffs’ counsel received the internal state memorandum. Plaintiffs submitted no evidence regarding when Plaintiffs SCAP and CVCWA themselves, not their counsel, learned of the internal California memorandum,” the brief says.
Due Diligence
DOJ says SCAP's brief includes no discussion of whether the group performed due diligence, “[T]he only evidence presented was related to Plaintiffs’ counsel’s knowledge of the internal California memorandum,” it says.
Addressing the content of the state memo SCAP presented to the court, DOJ argues that the state is only discussing whether it can use its own discretion on which test methods and statistical analysis to require in permits it issues -- and that the court has already held that challenges to state permit terms belong in state, rather than federal, court.
“A motion for reconsideration ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.’ . . . Plaintiffs’ argument based on [CWA] permit requirements cannot justify reconsideration because this issue has already been litigated,” DOJ's brief says.
If SCAP does win reconsideration of England's ruling, it could give the plaintiffs a new chance to extend a previous victory for challengers to EPA memos in Iowa League of Cities v. EPA, decided in March 2013 by the U.S. Court of Appeals for the 8th Circuit. There, the court unanimously held that a collection of EPA letters and memos, including correspondence between then-acting water chief Nancy Stoner and Sen. Charles Grassley (R-IA), amounted to a substantive change in the agency's wastewater policy, undertaken without notice and comment as required by the Administrative Procedure Act.
In the Iowa League decision, judges said EPA had for all intents and purposes created a new rule by saying it would veto permits that include so-called mixing zones, where higher levels of bacteria are temporarily allowed in waters meant for swimming, or blending, where a portion of peak wet-weather flows is channeled around secondary treatment units, treated using other methods and blended with fully treated wastewater before discharge. However, EPA has thus far declined to apply that ruling nationwide, leading wastewater groups to sue in District of Columbia federal courts to force the issue.
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