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Industry and Association News

1. (ACC Blog) On the road with #ACCaugust – Updated 8/17/15

   Aug 17, 2015 | American Chemistry Matters

   During the August recess, our state affairs and political mobilization teams will fan out across the country to create opportunities to further our industry’s advocacy goals in a grassroots initiative we’re calling #ACCaugust. http://blog.americanchemistry.com/2015/08/on-the-road-with-accaugust/
2. (ACC Blog) CPI Announces 2015 Polyurethane Innovation Award Finalists

   Aug 17, 2015 | American Chemistry Council

   After outside judges reviewed all submissions, the Center for the Polyurethanes Industry is proud to announce the three finalists for the 2015 Polyurethane Innovation Award! http://blog.americanchemistry.com/2015/08/cpi-announces-2015-polyurethane-innovation-award-finalists/#sthash.pX3FLjmq.dpuf
3. (ACC Mentioned) RECYCLING: Recycling’s ‘Vision’ of the Future

   Aug 17, 2015 | Kim Holmes

   By Plastics Technology
   
   
   Plastic recycling has come a long way over the last few decades.

Chemical Management News

4. EPA Takes First Step on Flame Retardant Assessments

   Aug 17, 2015 | E&E - Greenwire

   By Sam Pearson
   
   
   U.S. EPA today announced it completed the first step toward publishing a risk assessment of three types of flame retardants, a class of chemicals that has seen extensive public scrutiny in recent years.
5. US EPA Receives 57 Pre-Manufacturing Notices in June

   Aug 17, 2015 | Chemical Watch

   The US EPA received 57 pre-manufacturing notices (PMNs) for new chemicals in June. Several have their manufacturer, or importer, protected as confidential business information.
6. California Court Rules in Favour of Cosmetics Companies

   Aug 17, 2015 | Chemical Watch

   By Kelly Franklin
   
   
   A California court has granted a summary judgement, dismissing the lawsuit brought against nearly 100 cosmetic companies, over a failure to label titanium dioxide (TiO2) in powdered cosmetic products (CW 2 October 2014).

Chemical Security News

7. Explosions at Texas Plant Rattle Residents

   Aug 17, 2015 | E&E - Greenwire

   No one was injured in a series of explosions Friday at an oil field chemical supply company north of Houston, authorities said.

Energy and Environment News

8. NGO Report Identifies Hazards in California Fracking Chemicals

   Aug 17, 2015 | Chemical Watch

   A report, by US NGO Environmental Working Group (EWG), has analysed the potential hazards posed by the chemical ingredients used in hydraulic fracturing – fracking – operations in California.
9. White House OKs Some Shipments to Mexico

   Aug 17, 2015 | E&E - Energywire

   The Obama administration gave the green light for U.S. companies to ship some crude oil to Mexico, an approval pushing the boundaries of the long-standing export ban while propelling the movement to end the trade restrictions.
10. Letters: Closer Look at the Likely Effects of the EPA’s Grid Plan

    Aug 17, 2015 | The Wall Street Journal

    Thomas Pyle’s “The Price Tag For Uprooting America’s Electric Grid” (Aug. 10) addresses only the costs of power generation. Other significant costs include transmission, distribution, control, etc. Costs aside, the goal of the EPA is unattainable.
11. Rosy Projections for Carbon Reductions Confound State Regulators

    Aug 17, 2015 | PoliticoPro

    By Darren Goode
    
    
    As part of its sales pitch for sweeping new climate change rules, EPA is projecting that a handful of states — even coal-reliant Kentucky — will be able to surpass their carbon-reduction targets a decade early thanks to steps they should be taking anyway.
12. States Aim for Conservative Judges to Hear Challenge

    Aug 17, 2015 | E&E - Energywire

    By Emily Holden and Rod Kuckro
    
    
    A federal court bid last week by 15 states to block U.S. EPA's Clean Power Plan offered few new arguments but illuminated a key legal strategy: retaining the same three Republican-appointed judges who considered an earlier, premature challenge to the regulation.
13. Efficiency Advocates Frustrated by No Credit for Early Action

    Aug 17, 2015 | E&E - Greenwire

    By Jean Chemnick
    
    
    The new early-action incentives program U.S. EPA inserted into its final Clean Power Plan could actually reduce interest in energy efficiency improvements before 2022, advocates say.
14. Can John Kasich Find Sunlight On Clean Energy?

    Aug 17, 2015 | National Journal

    By Jason Plautz
    
    
    When it comes to energy, John Kasich seems to like living in the murky middle. But he can't stay there forever.
15. D.C. Circuit's CSAPR Ruling Casts Doubt Over Future Interstate Air Trading

    Aug 17, 2015 | InsideEPA

    By Stuart Parker
    
    
    The U.S. Court of Appeals for the District of Columbia Circuit's ruling remanding Cross-State Air Pollution Rule (CSAPR) "budgets" to EPA for reconsideration casts major doubt over the viability of any future agency interstate emissions trading program because of strict limits the court appears to place on such programs, sources say.
16. Environmentalists, EPA, Industry Agree On Schedule For CAFO Reporting Suit

    Aug 17, 2015 | InsideEPA

    By Suzanne Yohannan
    
    
    Environmentalists, EPA and agriculture industry officials have agreed on a court briefing schedule in litigation revived by environmental petitioners in which a federal appellate court will review the legality of a 2008 EPA rule exempting concentrated animal feeding operations (CAFOs) from toxic reporting requirements.

Transportation News

17. Freight Lines Can't Hide Info About Crude Transport -- Judge

    Aug 17, 2015 | E&E - Greenwire

    By Sean Reilly
    
    
    A Maryland judge has ruled against two freight railroads that had sued to keep secret information on oil train shipments through the state.

Industry and Association News

1. (ACC Blog) On the road with #ACCaugust – Updated 8/17/15

   Aug 17, 2015 | American Chemistry Matters

   During the August recess, our state affairs and political mobilization teams will fan out across the country to create opportunities to further our industry’s advocacy goals in a grassroots initiative we’re calling #ACCaugust. Through plant tours, in-district meetings, and industry roundtable discussions, we will meet with Members of Congress to raise awareness of the vital importance of our industry and showcase the economic benefits of the business of chemistry where it matters the most—in their districts.

   Take the #ACCaugust tour with us! Zoom in and out and pan around to see where we’ve been and where we’re going (don’t forget Alaska!):

   
   Be sure to check ACC’s Twitter @AmChemistry, blog American Chemistry Matters, and Facebook page to follow our #ACCaugust adventures as we travel across America highlighting the business of chemistry—one congressional district at a time. - See more at: http://blog.americanchemistry.com/2015/08/on-the-road-with-accaugust/#sthash.ChnVHPHY.dpuf

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2. (ACC Blog) CPI Announces 2015 Polyurethane Innovation Award Finalists

   Aug 17, 2015 | American Chemistry Council

   Drum roll, please…..

   After outside judges reviewed all submissions, the Center for the Polyurethanes Industry is proud to announce the three finalists for the 2015 Polyurethane Innovation Award! The award is presented annually at CPI’s Polyurethane Technical Conference, which is the premier event for industry expertise, professional networking and regulatory issues.

   This year’s finalists are Dow Chemical, Honeywell and Novomer.

   The Polyurethane Innovation Award acknowledges the most impactful, inventive and unique commercial technologies in the global polyurethanes industry. Since 2005 this award has highlighted the role that innovation has played in the polyurethanes industry and recognized companies, as well as individuals, whose vision and perseverance bring new initiatives, products and technologies to the marketplace.

   The innovations selected for this year’s award are:Dow Chemical’s VORASTAR™ 7000 spray elastomer represents a novel class of hydrophobic, alcohol terminated polymer resins that can be formulated as spray applied polyurea coatings. VORASTAR™ 7000 creates a coating that exhibits improved resistance to moisture and concentrated aqueous acids, as well as upgraded adhesive properties with steel, retention of adhesion after long-term immersion testing, and improved flexibility and durability. When used as a coating material, it can provide protection to infrastructure in the oil and gas, petrochemical and chemical industries.Honeywell’s Solstice® Liquid Blowing Agent (LBA) is a polyurethane foam blowing agent used in insulation applications, including in appliances and spray foam, enabling the attainment of higher energy standards. Solstice® LBA can also help better insulate trucks, containers and ships used to transport cold cargo like food and liquefied natural gas. Moreover, it can help safely and dramatically reduce climate impact, improve energy efficiency and create jobs.Novomer’s Converge® Polyol RF-x polyisocyanurate rigid (PIR) foams represent an optimized material that allows foam manufacturers to process PIRs with traditional equipment and processing conditions while still benefiting from properties derived from polypropylene carbonate polyols. Converge® Polyols demonstrate improved properties in flammability testing; these tests reveal a reduction in total smoke and heat released when compared to a conventional aromatic polyester polyol. In addition, Converge® Polyols have demonstrated a reduced carbon and energy footprint when compared to traditional polyols.

   The finalists will present these technologies during the Opening Session of this year’s Polyurethane Technical Conference, which takes place October 5-7 at the Gaylord Palms Resort and Convention Center, in Orlando, Florida. Attendees will vote during the Opening Session for their favorite technology, and those tallies will be added to the scores from outside judges to determine the winner. The winner will be announced during the Closing Session of the conference.

   To be considered for the award the submissions must pertain to polyurethane technologies, defined as a reaction of an isocyanate with a polyol, and must have been commercialized no more than 15 months prior to the June 19, 2015 submission deadline. To read more details on the selection process click here.

   Those interested in attending the Polyurethane Technical Conference can register and view the full itinerary by clicking here. Registration is now open.

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3. (ACC Mentioned) RECYCLING: Recycling’s ‘Vision’ of the Future

   Aug 17, 2015 | Kim Holmes

   By Plastics Technology

   Plastic recycling has come a long way over the last few decades.  Expanded collection efforts, increased demand for reclaimed material, and technology advances have combined to allow greater recovery of materials. While technology innovation spans a wide range of processes—from shredding through compounding and extrusion—one category that is receiving more attention and credit for growing recovery opportunities is automated sorting technology.  
   

   Basically, automated sorting technology processes information with a computer and sorts materials with pneumatic air knives. The technology comes in a few varieties, including:

    •  Vision technology: This is essentially a camera that can sort colors and shapes;
    •  Infrared technology: This is used to differentiate between resin types by their IR absorption spectra. This category of optical sorters includes near-infrared (NIR), mid-infrared (MIR) and Raman laser spectroscopy;
    •  X-ray technology (XRF and XRD):  This allows users to “see through” the plastics at the elemental level and detect heavy elements such as chlorine and bromine, differentiating PVC from look-alike PET, and detecting brominated flame retardants that cannot be returned to manufacturing in some markets.  

   These technologies can be capable of sorting large volumes of whole containers, large plastic pieces, or small flakes in mass quantity. NIR and XRF technologies can also be miniaturized into handheld units that allow for individual identification of a piece or part.

   As collection programs have moved beyond just PET and HDPE bottles, sorting a more varied mix of plastics is increasingly important to reduce contamination in bales and to enable more commodity plastics to be added to the recycled stream. At materials recovery facilities (MRFs), for example, optical sorting technologies are now being used to recover PP.  As plastics-recovery processes have extended beyond the curbside bin, optical sorting has been instrumental in reclaiming plastics from durable goods like electronics and automobiles.

   The key limitation to optical sorting in these applications is the inability of infrared sorting technologies to identify and separate plastics that contain carbon black.  The presence of that black pigment prevents the transmission of infrared light back to the sensor, so no resin signature is bounced back from the plastic. But this limitation too may be soon overcome. More on that later.

   SORTING IT ALL OUT 
   One of the best attributes of plastics— the ability to customize materials to precisely fit the application—is also one of the things that make them more challenging to reclaim than other materials.  This high level of customization results in a broad spectrum of plastics that need to be identified and sorted at end of life. As we move deeper into the end-of-life pile of plastics, optical sorting technologies will continue be the key to driving forward in recycling.  There are a number of examples we can explore to see how optical sorting equipment is making more meaningful recovery of plastics possible.

   THE RISE OF THE PRF
   While most people know of MRFs, a new generation of sorting facilities are popping up across North America called PRFs (Plastics Recovery Facilities). PRFs have become instrumental in creating the domestic reclamation capacity to recover the plastics from Nos. 3-7, or what has become known as “pre-picked bales” that are generated by the typical MRF.  At one time these bales were typically shipped to China, but with Green Fence regulations, they are now refused entry at Chinese ports. This has created an opportunity to recover and reuse these materials domestically. But with labor costs being significantly higher in the U.S., effective separation technology must play a role in order to minimize the human element.  

   This spring, the SPI Rigid Plastic Packaging Group had the opportunity to visit QRS near Atlanta, a PRF that has been instrumental in expanding recovery of non-bottle rigid packaging in the U.S.  QRS is at the forefront of industrial-scale optical sorting technology.  One of the resins that it has been targeting in recent years is PP, which had not been recovered on a large scale in the U.S. until recently. Dave Bellon, managing partner of QRS Direct (QRS’ sourcing and brokerage arm), notes that the lessons the company learned with PP are now being applied to resins such as rigid PS and PVC.

   Because of the massive amounts of plastics QRS handles, even resins that aren’t used a lot in packaging eventually add up to big volumes.  Thanks to optical sorting technology, further sorting the mixed pile creates greater value for the material in the end, provided there is a market and demand for it.

   While optical sorting has made meaningful recovery of some new plastics possible, Bellon warns that there are a number of factors working against recyclers right now, even ones that employ state-of-the-art processing equipment.  Bale quality is one.  As the old adage says, “garbage in, garbage out.”  Optical sorters can only do a good job if the incoming stream is largely plastics.  QRS has to sort out lots of non-plastic items (paper, old shoes, etc.) before the plastics reach the optical sorting system.  

   Bellon notes, “Optical sorters are not plug- and-play. There’s maintenance of the machine itself and mastering the nuances of the technology, which takes talent and time. There is also the issue of quality of the inbound stream, and you need to understand your suppliers, because everyone’s material is a little different in composition.” While these factors have been a challenge for QRS, the company is slated to open its biggest PRF yet in the Baltimore area later this year 

   A report released this summer suggest the growing importance of optical sorting technology today in yet another type of reclaim facility: “dirty MRFs.” These facilities receive all discarded materials and require no sorting of recyclables from trash.  In The Evolution of Mixed Waste Processing Facilities, a report prepared by Gershman, Brickner & Bratton, Inc. on behalf of the American Chemistry Council, optical sorting was identified as a key technology in helping dirty MRFs make the leap to “mixed-waste processing facilities” that produce high diversion rates and good-quality, marketable recyclable commodities.  

   SORTING IT ALL OUT
   In addition to affording more detailed recovery of plastics at PRFs, the industry is also beginning to explore how products can be better designed to communicate more information to optical sorting systems to optimize recovery. Two examples of this were presented at the SPI Tech Summit held this past February.  

   The first tackles the challenge of traditional black plastics not being read by infrared technology.  Think about the prevalence of plastic items in our lives that are black—PET thermoformed trays, electronic housings, etc. These items are colored with carbon black, so they require alternative, non-optical sortation methods.  This adds cost and can affect the economics of recycling and material quality. Ed Kosior, managing director of NexTek Ltd., a U.K.-based consulting company specializing in recycling plastics packaging, presented a trial his company conducted to overcome this challenge. 

   NexTek created a method by which plastics could be colored black by using a mix of colorants rather than carbon black.  Without carbon black, these seemingly “black” plastics perform like other plastics and can be effectively sorted by NIR sorters. Carbon black is inexpensive compared with other colorants, so there would be added costs for making these “black” plastics. But this research proves that  companies like NexTek can offer design-for-recycling solutions that help expand current optical sorting capabilities of plastics.  

   Another example of how industry is working to harness the potential of optical sorting can be found in the REFLEX (Recycling of Flexible Packaging) project underway in the U.K., which was presented by Dow Chemical at the Tech Summit.  The project has three stated goals: exploring new innovative packaging designs; developing techniques to make blended polymers from flexible packaging that perform in new uses; and improving identification and sorting of recyclable flexible packaging from the waste stream. 

   All of these objectives are important, but the last will enable the recovery of packages that have been designed for recycling to be diverted into streams for mechanical recycling.  The ability to identify these packages as recyclable likely will be provided via an additive that will be detectable by NIR sorting technologies. There are additives available today, such as opalescent markers, that can be detected by infrared technologies and communicate another level of information to sorters beyond just resin type, such as, “Here’s my unique signature, which means I’m a designed-for-recycling pouch, so send me to that pile for recycling.”  Embedded messages of all types could eventually be built into packaging and products, including information about compounded materials, multi-layer products, etc.  Unlocking this additional layer of information will only happen through the use of optical sorting technologies.  

   From these application and research examples, it’s clear that optical sorting holds the key to unlocking major advances in plastics recycling.  I once had a recycler tell me that his optical sorter was “the brains of his operation.” While there is no magic bullet for solving all recovery challenges, from a technology perspective optical sorting holds a great deal of potential in driving the recycle value chain forward in the recovery of more plastics in a precise and cost-efficient way. 

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Chemical Management News

4. EPA Takes First Step on Flame Retardant Assessments

   Aug 17, 2015 | E&E - Greenwire

   By Sam Pearson

   U.S. EPA today announced it completed the first step toward publishing a risk assessment of three types of flame retardants, a class of chemicals that has seen extensive public scrutiny in recent years.

   The agency will also look into a fourth type on which it does not yet have enough data.

   The initial review, called a "work plan chemical problem formulation and initial assessment," is the agency's way of attempting to identify the scope of exposure to the chemicals before completing additional work.

   EPA grouped the flame retardants into four "clusters" because large numbers of structurally similar substances are used to deter the risk of fire.

   This approach helps EPA "to more efficiently evaluate existing data and support more informed decisions about data gaps and needs," the agency said.

   The clusters -- for chlorinated phosphate esters, cyclic aliphatic bromides, tetrabromobisphenol A and brominated phthalates -- will undergo additional scrutiny to evaluate their impact on aquatic organisms and human health, among other factors, EPA said. However, in the case of brominated phthalates, EPA said it had found significant data gaps that limited its ability to evaluate the risk of the chemicals.

   The agency also published a notice in the Federal Register and will accept public comments for 120 days for brominated phthalates and 60 days for the other three flame retardant clusters.

   Assessing the safety of flame retardants is "very challenging" for EPA, Jim Jones, the assistant administrator for the Office of Chemical Safety and Pollution Prevention, said during a Senate Environment and Public Works Committee hearing earlier this year.

   Jones noted the grouping of similar flame retardants was one way of avoiding a situation "where the serial evaluation just keeps leading to potentially unproductive substitution," as flame retardants found to be harmful are replaced with similar chemicals in the marketplace.

   The work plan chemicals program is EPA's attempt to make the most of its authorities under the Toxic Substances Control Act of 1976 to address chemicals that may cause health problems, even as Congress mulls changes to the law.

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5. US EPA Receives 57 Pre-Manufacturing Notices in June

   Aug 17, 2015 | Chemical Watch

   The US EPA received 57 pre-manufacturing notices (PMNs) for new chemicals in June. Several have their manufacturer, or importer, protected as confidential business information.

   During the same period, the agency received 31 notices of commencement to manufacture new chemicals and five applications for test market exemption.

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6. California Court Rules in Favour of Cosmetics Companies

   Aug 17, 2015 | Chemical Watch

   By Kelly Franklin

   A California court has granted a summary judgement, dismissing the lawsuit brought against nearly 100 cosmetic companies, over a failure to label titanium dioxide (TiO2) in powdered cosmetic products (CW 2 October 2014).

   “Titanium dioxide, airborne, unbound particles of respirable size” is listed on the California Proposition 65 list of chemicals known to the state to cause cancer.

   The substance is used in a variety of consumer applications, including in cosmetics for UV protection and pigmentation.

   The plaintiff, the Public Interest Alliance LLC (PIA), filed suit in 2013 against dozens of cosmetics manufacturers, including Avon, Neutrogena, Revlon and L'Oreal. It claimed that it was possible that the use of the manufacturers' powdered cosmetics would result in exposure, and, therefore, required labelling under Prop 65.

   In its decision, the California Superior Court for Alameda County noted that:the Prop 65 requirements extend only to unbound, airborne particles of respirable TiO2 (UART);testing is required to determine such exposure, and the mere presence of TiO2 does not require labelling;the plaintiff's Certificate of Merit (CoM) relied on air sampling studies of other cosmetic products, rather than testing of any of the specific products named in the complaint; andthe plaintiff's expert conceded that not every product covered by the CoM would result in exposure to UART, even if tested.

   As a result, the court found that the plaintiff's CoMs were “based upon probability and conjecture, and, thus, invalid”, and granted the defendants' motion for summary judgement.

   Jeffrey Judd, PIA's attorney, attested that the court's ruling was based on legal procedure, and that his client's claims - that manufacturers were violating Prop 65 requirements - have not been determined.

   The pre-trial discovery process "revealed that not a single cosmetic company has assessed their powder cosmetic products”, said Mr Judd.

   He added: “The court's ruling makes clear that no enforcement action will be brought, until a sufficiently deep-pocketed plaintiff does the toxic exposure assessment that, in our view, is something any responsible manufacturer should do, before it offers a product for sale to the public.” 

   The court acknowledged that, while statute does not require a plaintiff to perform testing to support a Prop 65 CoM, it's held that “whether testing is required is highly dependent upon the facts of each case”.

   It added: “Plaintiff's failure to conduct further inquiry to support its CoM, before filing its complaints, brings to mind the 'shake down' cases concerning other aspects of defective pre-litigation Prop 65 notices” (GBB June 2014).

   According to Michael Jacob Steel, attorney to several of the defendants, the court's opinion shows that the CoM requirement in Prop 65 cases must be “taken seriously”.

   A plaintiff must be able to demonstrate evidence of exposure, he added, rather than “a theory posited by some purported expert”.

   Mr Steel said: "The court's reference to 'shake downs' is also noteworthy in that it shows that the courts are increasingly aware that Prop 65 is subject to widespread abuse."

   During the two-year litigation process, nine defendants reached settlements, while ten others settled before the lawsuit was filed.

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Chemical Security News

7. Explosions at Texas Plant Rattle Residents

   Aug 17, 2015 | E&E - Greenwire

   No one was injured in a series of explosions Friday at an oil field chemical supply company north of Houston, authorities said.

   Conroe, Texas, Fire Marshal Mike Legoudes said the blaze erupted around 4:30 p.m. local time Friday at the DrillChem Drilling Solutions plant outside the town 40 miles north of Houston.

   Residents living near the site were told to stay indoors. Some reported hearing three or four explosions that shook their homes.

   U.S. EPA has been notified and authorities are working to determine the cause of the explosions and to monitor emissions of hazardous pollutants, Legoudes said (AP/London Guardian, Aug. 14). -- SP

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Energy and Environment News

8. NGO Report Identifies Hazards in California Fracking Chemicals

   Aug 17, 2015 | Chemical Watch

   A report, by US NGO Environmental Working Group (EWG), has analysed the potential hazards posed by the chemical ingredients used in hydraulic fracturing – fracking – operations in California.

   The EWG report draws on the list of chemicals published by the California division of oil, gas and geothermal resources (DOGGR). Under state regulations last updated 1 July, well sites must disclose “each and every” chemical they use in well stimulation treatment fluids.

   It found that of 691 well sites, reported to the DOGGR between December 2013 and February this year, 197 different chemicals were used.

   Represented in these chemicals, says the report, are:15 that are listed under California’s Proposition 65 as known carcinogens or reproductive toxicants, including crystalline silica, methanol, talc and toluene;five that have been associated with an increased risk of cancer by the EU, such as petroleum distillates;12 that are listed under the US Clean Air Act as hazardous air pollutants, including ethylene glycol, xylene and hydrochloric acid; and93 that have been associated with harm to aquatic life by the US EPA or Echa.

   “EWG’s analysis reveals that because fracking is heavily dependent on the use of chemicals known to harm human health and the environment, it is by its very nature a toxic threat,” it says.

   As a result of its findings, the group has called on California to:assess where less hazardous alternatives can be substituted for currently used chemicals;make available chemical safety data sheets on the DOGGR chemical disclosure website;support and enforce the groundwater monitoring model, adopted in the fracking disclosure laws;stop the illegal injection of fracking wastewater into potential drinking or agricultural water sources; andfocus on developing clean energy sources.

   The DOGGR did not provide comment by the article's deadline.

   In 2013, the California legislature passed SB 4, which put into place today's regulations which, among other requirements, mandate that each well site publicly disclose all chemicals used (CW 19 November 2013).

   California has “the most stringent regulations on hydraulic fracturing in the country”, says Tupper Hull, Western States Petroleum Association (WSPA) vice president of strategic communications.

   Mr Hull says the regulations that took effect 1 January 2014, as a result of the bill, “not only address issues of notification and disclosure but include extensive groundwater monitoring requirements that are now the law.”

   He adds that the NGO's groundwater concerns are inconsistent with the findings, recently published by the California Council on Science and Technology (CCST); a report which was prepared for the California Natural Resources Agency.

   In the CCST report, says Mr Hull, “exhaustive investigation found no incidents that they could identify where hydraulic fracturing ... had influenced groundwater supplies in California.”

   Elsewhere in the US, fracking disclosure information is collected on the FracFocus chemical disclosure website (CW 24 March 2015).

   The EWG says that the site “has repeatedly come under criticism for inaccuracies and lack of transparency”, and that it permits companies to withhold trade secrets.

   The NGO has advocated for a national disclosure programme, based on California's transparency model.

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9. White House OKs Some Shipments to Mexico

   Aug 17, 2015 | E&E - Energywire

   The Obama administration gave the green light for U.S. companies to ship some crude oil to Mexico, an approval pushing the boundaries of the long-standing export ban while propelling the movement to end the trade restrictions.

   The Commerce Department's Bureau of Industry and Security approved several proposed transactions, allowing light U.S. oil to be switched out for similar amounts of heavier and lower-quality Mexican crude better suited for many Gulf Coast refineries.

   House Rep. Henry Cuellar (D-Texas) said the swaps will help Texas producers.

   "These swaps will further positively impact energy exploration in Texas and the United States," Cuellar said in a statement. "The U.S. and Mexico have a great relationship when it comes to trade and commerce, and today's announcement is a clear sign that both countries are eager to further develop their energy sectors" (Jennifer A. Dlouhy, Fuel Fix, Aug. 14). -- KS

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10. Letters: Closer Look at the Likely Effects of the EPA’s Grid Plan

    Aug 17, 2015 | The Wall Street Journal

    Thomas Pyle’s “The Price Tag For Uprooting America’s Electric Grid” (Aug. 10) addresses only the costs of power generation. Other significant costs include transmission, distribution, control, etc. Costs aside, the goal of the EPA is unattainable. The compliance plans are due in a year, carbon reductions by 2022. The rush to comply will irreparably damage the power grid.

    Our electric power system took a century to develop, with very conservative and reliable design. The rapid changes demanded by the EPA include newly dispersed solar and wind generation, and closing old plants. This will severely impact the transmission system and power-grid controls, as well as power generation. We have already seen the early ill effects of EPA power regulations.

    The new wind and solar plants will need an unproven “intelligent network” to manage their intermittent power flows. Most of these plants, as well as new “clean” gas plants, will need new transmission lines and equipment. Planning, approval and construction of power plants and transmission lines often takes 8-15 years. Environmental and legal challenges will further lengthen this lead time.

    The EPA plan was created by politicians and unelected bureaucrats with no engineering knowledge. Power engineers know that the plan cannot succeed. Even if it was successfully implemented the plan would have a negligible effect on global CO2 emissions or temperature.

    The stability of our reliable and economical power system will be put at great risk by the radical EPA plan. After the EPA and Obama administration folks are long gone, we will all suffer with much more costly, unreliable electricity. Could the real EPA goal be to exert even more federal government control over all aspects of our economy? I am shocked, shocked!

    Jon Paul, MSEE

    Paris

    Hillary Clinton’s campaign has issued a report calling for an increase in renewable energy (wind and solar) to 33% of U.S. generating capacity by 2025. This report states the capital cost of the increase will be $60 billion.

    Any energy economist will recognize this cost estimate is woefully inaccurate and extremely misleading to the public. Under the best of circumstances the cost of increasing renewable-energy generation to the levels noted in the Clinton document will be at least $400 billion in current dollars. This figure doesn’t include the enormous cost of land nor the permitting, legal and decommissioning costs that will be incurred.

    Add the impact (rate increases) of these capital costs to the energy costs (a further cost to all ratepayers) as described by Mr. Pyle, and one will understand the financial implications of the Clinton plan.

    My analysis isn’t an argument that our country should eliminate renewable energy. We should move forward with prudence and allow technology and our manufacturing skills to find lower-cost solutions.

    But politicians, including Mrs. Clinton, must be truthful about the cost of these changes. There may be benefits for the climate, but they will come at a steep price.

    Perhaps not everyone worries about their electric bill but the millions of hard-working Americans who are on financial thin ice should be very concerned about the Clinton energy policy.

    Ragan Phillips

    Ashland, Va.

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11. Rosy Projections for Carbon Reductions Confound State Regulators

    Aug 17, 2015 | PoliticoPro

    By Darren Goode

    As part of its sales pitch for sweeping new climate change rules, EPA is projecting that a handful of states — even coal-reliant Kentucky — will be able to surpass their carbon-reduction targets a decade early thanks to steps they should be taking anyway.

    But regulators in some of those states are questioning that assertion.

    The agency estimated how much carbon dioxide each state’s power sector would emit in 2020 under a “business-as-usual” scenario that assumed the new power plant regulations did not exist. While the estimates are not tied to the actual targets states have to hit, EPA and its allies say they contradict doomsday scenarios from agency critics.

    Kentucky air regulator John Lyons disagrees, calling the argument “misleading.”

    “If people are looking at that number and thinking Kentucky’s got it easy, nothing could be further from the truth,” said Lyons, assistant secretary for climate policy at the state’s Division for Air Quality. “You’re putting a number out there, I don’t know what the purpose of it is other than to dispel the doom and gloom scenario.”

    EPA’s Clean Power Plan requires Lyons and other state regulators across the country to write plans designed to reduce power plants’ carbon dioxide emissions to specified levels by between 2022 and 2030. The agency encourages states to implement tougher rules on coal plants, shift electric utilities to natural gas and renewables and encourage energy efficiency — but it does not require any particular approach.

    Among the thousands of pages of regulations and supporting information EPA released this month are state-by-state fact sheets the agency is using to make the case that its requirements are achievable. Those documents include projections of where emissions would be in 2020 without the new carbon rules going into effect. In at least a dozen instances, EPA says states will have hit their targets a decade early, but officials in some of those states disagree.

    EPA’s estimates are based on a broader set of assumptions than some state air regulators may be using — including low natural gas prices, declining renewable power costs, regional energy market dynamics and the effect of other regulations in spurring coal plants to shut down.

    “It’s not meant to be a precise number, it’s meant to be an illustrative guidepost as you will,” said one EPA official, who spoke on condition of anonymity. While the agency may modify those projections based on feedback from state regulators, the EPA official said they “reflect a reasonable view of the 2020 world” and helped inform EPA’s cost-benefit analysis of the Clean Power Plan.

    The 2020 assumptions are “important because they demonstrate to us that there is a big opportunity to adopt cost effective renewable energy generation out there,” said Starla Yeh, a senior clean air and climate analyst at the Natural Resources Defense Council. “And that’s a very important message to highlight: the most cost effective resources are also the cleanest ones.”

    The rule gives states two options for measuring its compliance with the climate rule: “mass-based” targets that would limit total carbon dioxide emissions emitted from the entire state — ranging from about 1.5 million tons for Idaho to nearly 190 million tons for Texas — or “rate-based” targets that would require power plants to limit the pounds of pollution per unit of electricity.

    EPA assumes a dozen states would be ahead of the curve if they set a target to reduce the overall emissions from the power sector within their borders, while nine states are ahead of the curve in terms of the rate of emissions per power plant, according to a POLITICO analysis.

    Six states would beat their target by 2020 under either measure: Delaware, Idaho, New Hampshire, New York, Oregon and Washington. California, Maine and Massachusetts are ahead of the curve based on a rate-based measure, while Kentucky, Louisiana, New Mexico, North Carolina, Rhode Island and Virginia would see lower overall carbon emissions in 2020 than required in 2030.

    The 2020 estimates are not the required targets states have to hit — those start in 2022 and ratchet down by 2030. But EPA is using the rosy assumptions behind those figures to argue that even the most recalcitrant states are on track to achieve steep emission reductions without upending their economies.

    In Kentucky — home to Senate Majority Leader Mitch McConnell, who has vowed to do everything he can to kill the climate rule — EPA projects that Kentucky’s carbon emissions would fall 30 million tons between 2012 and 2020. But Lyons said his office’s internal calculations project emissions would fall by less than half as much.

    “That would take a lot more [coal] units shutting down in this state than is currently projected or is currently announced I’ll tell you that,” Lyons said.

    Kentucky was among 15 states that asked the D.C. Circuit on Thursday to block the carbon rule, which has not yet been published in the Federal Register as is required before it can be challenged in court.

    Regulators from other states expected to sue EPA also are confused over the agency’s 2020 projections.

    “We have not been able to reproduce their numbers,” said Crystal Feldman, spokeswoman for the North Carolina Department of Environment and Natural Resources. “So far we have not figured out the formula they used to get where they went.”

    Like with Kentucky, EPA is projecting that North Carolina by 2020 would have reduced its emissions enough to meet the state’s requirements under the Clean Power Plan through 2030. But Feldman said the state has secured the easiest carbon reductions as a side-effect of its 2002 Clean Smokestacks Act, a $6 billion effort to reduce nitrogen oxide and sulfur dioxide by shuttering old coal units and replacing them with natural gas. But North Carolina officials project the Clean Power Plan will be even more expensive to implement.

    “We’ve already reached all the long-hanging fruit, so we can’t say whether or not it’s going to be easy or not to reach those additional reductions” under the Clean Power Plan, she said.

    EPA’s projections may be in line of some coal-state expectations.

    EPA is projecting emissions in Alabama, which also joined the lawsuit to block the rule, to plummet from 75.5 million short tons in 2012 to 58.4 million in 2020 — a lower threshold than the state would have to meet until 2028. Alabama air director Ron Gore said the state’s plan to close all but nine of its roughly two-dozed coal units in the coming years actually could reduce its carbon emissions as dramatically as EPA’s projects. “That number sounds reasonable,” he said.

    More worrisome, Gore says, are expectations that Alabama establish a thriving renewable power sector by 2030. He said air officials in the state believe the rule would require them to obtain 15 to 25 percent of electricity from sources like wind and solar — which provide effectively no energy to the state today. But Gore said he “can’t explain” why the state would be expected to see such rapid growth.

    Martin Ross, a senior research economist at Duke University’s Nicholas Institute for Environmental Policy Solutions, cautioned on putting too much emphasis on the 2020 projection versus the level of actually measured emissions in 2012 that serve as the rule’s baseline. “I would certainly feel more comfortable focusing on what actually happened in the states,” he said.

    Ross noted that the 2020 projections for each state are based in part on regional factors due to the interconnected electric grid that joins states together. For example, North Carolina’s 2020 projection is part of a broader assessment of the electricity grid the state shares with South Carolina, he said.

    But Franz Litz, a consultant for the Great Plains Institute, said the 2020 projections are important in calculating how tough it would be for individual states to meet the Clean Power Plan’s requirements.

    “In order to understand the stringency of this program you have to compare not where things were in 2012 versus where they are at any particular point in the program but where they would have been in the absence of the program compared to where the program wants them to be,” said Litz, who is helping Midwestern states develop compliance plans. “The main idea is that when you’re trying to think about where you have to go it does help to think about where you’d be anyway.”

    The 2020 projections aren’t uniformly rosy. EPA estimates states like Ohio and West Virginia would see their emissions rise in 2020 compare to 2012, signaling a particularly tough road to travel under any assumptions. Both states were among the 15 that asked the D.C. Circuit to block the rule.

    But overall, the 2020 projections comport with EPA Administrator Gina McCarthy’s message that the Clean Power Plan does not “go against the grain” with how the energy market is already changing.

    “What we think we’re going to be doing with this plan is capturing that momentum, not shifting it, not changing it, but looking at what the future has for carbon pollution strategies and following where the energy transition is already heading,” McCarthy said last week at an event hosted by Resources for the Future.

    EPA spokeswoman Melissa Harrison explained in an email that state plans “will be developed and implemented in a future that is changing so quickly that it is already projected to be cleaner than we anticipated at proposal.” That means “the amount of work states have left to do is less than before, with the Clean Power Plan securing the progress already being made and adding to it in the years to come,” Harrison said.

    The agency’s 2020 projections include “the latest data, trends and regulatory requirements for the power sector [and] can provide useful information as states evaluate how states they might comply with the CPP performance rates or state goals,” Harrison added. “But, it is not used in setting those rates or goals. The CPP uses a 2012 baseline as the basis for the performance rates and state goals, and does not rely on the 2020 projections.”
    

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12. States Aim for Conservative Judges to Hear Challenge

    Aug 17, 2015 | E&E - Energywire

    By Emily Holden and Rod Kuckro

    A federal court bid last week by 15 states to block U.S. EPA's Clean Power Plan offered few new arguments but illuminated a key legal strategy: retaining the same three Republican-appointed judges who considered an earlier, premature challenge to the regulation.

    Led by West Virginia, the states asked the U.S. Court of Appeals for the District of Columbia Circuit to take the unusual step of granting an emergency stay of the greenhouse gas standards for power plants. That would put the rules on hold pending the resolution of litigation.

    The D.C. Circuit typically doesn't entertain challenges to Clean Air Act regulations before they are published in the Federal Register. The Clean Power Plan has yet to be published, leading supporters of the regulations to criticize the latest attempt by critics to bypass the usual judicial review process.

    But from a legal strategy perspective, the most important document filed at the D.C. Circuit may have been not the stay request but a motion to consolidate the new filing with a previous D.C. Circuit case on the greenhouse gas rules when they were in their proposal stage, E&E's Jeremy Jacobs reports (Greenwire, Aug. 14).

    Go to E&E's Power Plan Hub to read more of this weekly column and to see the latest news, state summaries and developments.

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13. Efficiency Advocates Frustrated by No Credit for Early Action

    Aug 17, 2015 | E&E - Greenwire

    By Jean Chemnick

    The new early-action incentives program U.S. EPA inserted into its final Clean Power Plan could actually reduce interest in energy efficiency improvements before 2022, advocates say.

    That's because while the Clean Energy Incentive Program (CEIP) offers states credit for bringing solar and wind energy online early -- benefiting renewable energy investors especially in states that allow emissions trading -- the same is not true for efficiency upgrades unless they happen in low-income communities.

    That limitation has efficiency businesses and policy advocates who didn't blink an eye when EPA cut them out of the rule's "building blocks" formula for tallying state targets fuming that EPA is favoring renewable energy over their technologies (Greenwire, Aug. 1).

    "I just really don't understand why they wouldn't put energy efficiency on the same footing as an early action credit as renewable energy," said Kelly Speakes-Backman, a senior vice president at Alliance to Save Energy.

    The program, which debuted in the final rule for existing power plants early this month and which is open to comment, aims to capture some of the early reductions that might have been lost when EPA pushed the rule's mandatory compliance period back two years to 2022.

    The CEIP allows states to earn and bank a set amount of credits for renewable energy and energy efficiency projects that come online after state plans are approved and that cut emissions in 2020 and 2021. Efficiency projects in low-income areas earn double the credit of wind and solar, but non-low-income demand-reduction projects earn no credit -- a serious flaw, according to efficiency advocates.

    "This is a significant problem, and it does need to be corrected in our view," said Steve Nadel of the American Council for an Energy-Efficient Economy.

    Advocates say the fault might be in their own outreach to EPA ahead of the rule's release.

    "Maybe our energy efficiency community didn't make it clear enough that we do need to stay on the same footing as renewable energy," said Speakes-Backman, who is also a former chairwoman of the Regional Greenhouse Gas Initiative and joined ASE in June.

    EPA Administrator Gina McCarthy said at an event last week hosted by Washington, D.C., think tank Resources for the Future that her agency came to believe the 2020 start for the interim compliance period it had included in the draft version of the rule would compel states to invest in high-cost options like natural gas-fired power plants that would then crowd out lower-cost options like efficiency and renewables. Pushing the mandatory compliance period back two years helped, she said.

    "But we still wanted to make sure that there wasn't a hiatus," she added. "That people weren't waiting for 2022."

    The renewable sector asked EPA to find a way to provide a bridge to the start date for mandatory reductions, she said, which led to creation of the incentives program. The same program offered an opportunity to offset any costs to low-income ratepayers -- however slight -- that would come from the rule.

    "We know that lower income communities would be hardest hit, and we want to make sure that energy efficiency programs equally benefit them, as they would anywhere else where there are already proven programs in place," the administrator said.

    But Nadel said the efficiency industry had the same problem the renewable industry expressed: In either case, investors are inclined to wait until investments are credited.

    "There is great concern that if you don't get credit until 2022 a lot of people will say, 'I won't do anything for the next five years,'" he said.

    In the meantime, utilities might ready for the rule by bringing new gas plants online that might not be needed if demand were cut, building additional greenhouse gas emissions into the system for decades to come, he said.

    Malcolm Woolf, CEO of Advanced Energy Economy, said the industry would have liked to see EPA offer credit for efficiency improvements that yielded reductions beginning in 2016 but would settle for being treated equally with renewable energy with credit starting in 2020. Low-income projects could still receive more credit than non-low-income projects, he said, but investments in underprivileged communities wouldn't do enough to curb demand before the rule begins or keep the private sector investing in efficiency overhauls of college campuses and the like over the next seven years, he said. Third-party efficiency firms could see a drop in business.

    If the Obama administration is concerned that this extra credit would water down the rule's effect -- leading it to fall short of the projected 32 percent reduction by 2030 -- Woolf sees an easy solution.

    "Why don't you just tighten the standard?" he said. "Go a little deeper so that the bank could be used?"

    While the EPA rule was finalized on Aug. 3, the agency asked for comment on more than 800 details scattered throughout its 1,560 pages, with responses due 90 days after it is published in the Federal Register. Many of those commenting opportunities have to do with the new CEIP, and Speakes-Backman said efficiency advocates will take full advantage of them.

    "Certainly they got our attention," she said.

    Efficiency advocates say they discussed the CEIP with staff both at EPA and the White House. EPA responded to Greenwire's queries about the way the program treats efficiency by touting the overall rule's effects at boosting efficiency -- including a projected 7 percent drop in demand by 2030. Under a rate-based approach to compliance, states get credit for projects installed after 2012 that continued to provide reductions once the compliance period begins in 2022, the agency said. And efficiency would also be credited under EPA's proposed model federal implementation plan, which would be implemented in states that opt not to comply, the agency noted. The agency did not respond to questions on why non-low-income efficiency would receive no credit under the CEIP.

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14. Can John Kasich Find Sunlight On Clean Energy?

    Aug 17, 2015 | National Journal

    By Jason Plautz

    When it comes to energy, John Kasich seems to like living in the murky middle. But he can't stay there forever.

    Unlike his Republican presidential challengers, the Ohio governor hasn't been virulently in denial of climate-change science, nor has he fully embraced the scientific consensus that it is caused by man. He has said he sees a role for clean energy, but he hasn't defined how the government should (or shouldn't) support it. He's touted emissions reductions, but also spouted concerns about job losses from climate action.

    When it comes to President Obama's climate rules for power plants, Kasich has been critical and his state attorney general has sued the Environmental Protection Agency seeking a stay. But Kasich hasn't said his state will try to skip the rules entirely, unlike other Republican governors and presidential contenders Louisiana's Bobby Jindal and Wisconsin's Scott Walker.

    As Kasich has moved up in the Republican polls, he has emphasized his lack of red-line conservative values, like in a Sunday interview on CNN where he said Republicans had "allowed themselves to be put in a box" on social issues. And environmentalists say that in his sometimes fuzzy moderate positions, there's a chance for Kasich to take a more definitive stance on energy that sets him apart from the rest of the Republican field.

    He will likely have to weigh in one way or the other soon as his home state is considering whether or not to continue its freeze on a renewable-power standard, with a legislative report out this fall that will force the issue back into headlines. With the state also considering how to meet EPA emission-reduction rules, greens in the state say they plan to push Kasich to take a more aggressive leadership role on the issue in the state, even while he continues his national campaign.

    Earlier this month, Kasich responded to a question about climate change by saying, "We don't want to destroy people's jobs based on some theory that's not proven," but later said that "man absolutely affects the environment." His campaign then tried to clarify those remarks by saying, "The governor has long believed climate change is real and we need to do something about it."

    Kasich's record in his home state doesn't present a clear orthodoxy on energy. He came into office embracing an "all of the above" strategy that he said could balance Ohio's traditional coal mix with emerging shale-gas resources and renewable power. After a 2011 two-day energy summit in Columbus, Kasich produced a strategy built around 10 pillars for the state's energy policy that he said would "support a diverse mix of reliable low-cost energy sources that meet Ohio's continuing job-creation needs."

    Among the pillars were promoting the use of natural gas, promoting renewables and clean power, and embracing heat-to-power technology that would make manufacturing more efficient. That strategy was codified in a 2012 bill that overhauled a drilling law to help Ohio embrace shale-gas finds in the Utica and Marcellus shale regions, but the bill also included measures that would allow waste-energy recovery and combined heat and power systems to be considered as renewable and efficiency measures under state law. It was a bill Kasich said would "last 100 years in Ohio" at a signing ceremony.

    But then, according to energy-industry sources in the state, Kasich more or less dropped his focus on clean energy and climate change. At the same time, the Republican-controlled legislature started looking to kill the state's renewable-portfolio standard, passed in 2008, which would require the state's utilities to get 25 percent of their energy from renewable sources by 2025. The repeal effort—backed by some utilities in the state and driven by conservatives in the legislature—would effectively undo the clean-energy language in Kasich's bill.

    "We thought that we were done. We had a major discussion about energy policy people were generally happy and then this repeal talk started again," said Amanda Woodrum, who works on energy issues with the left-leaning Policy Matters Ohio. "Kasich didn't put a stop to these talks … and I think a lot of people thought there was a failure in leadership that he allowed this conversation to even keep going."

    After debate about a full-on repeal, the legislature ultimately passed a two-year freeze of Ohio's RPS, becoming the first U.S. state to halt a renewable portfolio standard. The freeze—which automatically lifts if the state has not passed another law resetting or repealing the RPS by 2016—was touted by Kasich as an opportunity to review the merits of the program, which he was was "well-intentioned" but "a challenge to job creation and Ohio's economic recovery."

    Campaign spokesman Rob Nichols said that by making sure the legislature approved a pause, rather than a full-on repeal, Kasich had positioned himself between two extremes of the energy debate, a stance he still holds today.DON'T MISS TODAY'S TOP STORIES

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    "There are those who want to do away with all renewables. Then you've got the environmentalists who think that you can't touch any of the subsidies," Nichols said. "We're right smack dab in the center."

    But clean-energy supporters say the effect of the freeze—coupled with a provision in a separate budget bill that put restrictions on wind turbines—has chilled the state's renewables sector. Steve Melink, chairman of the Cincinnati-based clean-energy company Melink Corporation, said that several of his company's planned solar projects fell apart amid uncertainty about the renewable standard, and ultimately his firm has taken much of its work out of state.

    "It's disappointing that my home state was becoming a national leader, then we gave up so quickly," Melink said. "It's inevitable that we need to diversify and transition to more renewables, but here's a big missed opportunity.

    Even critics say that Kasich wasn't the driver of the RPS freeze—in fact, his most obvious public role was in not vetoing the bill. Some even say that the freeze may have been the best possible option and credit Kasich for avoiding a repeal.

    "In my opinion, I think he did what he could under the circumstances. Hence, I do him credit for stepping in," said Rob Kelter, a senior attorney with the Chicago-based Environmental Law and Policy Center. "We know for certain there was a lot of momentum in the legislature to kill the standards completely, not freeze them."

    And since the state bill passed, Kasich has reiterated his commitment renewables. In a 2014 speech in Ohio, Kasich said he strove to find "a bill that fit Ohio, that will not bankrupt consumers, or hurt jobs, but something that's still forward-looking on renewables." At a July campaign stop in New Hampshire, Kasich said he was "a supporter not just of our traditional forms of energy, but also of the critical importance of renewables because renewables should be a very large part of the energy picture of America as we go forward."

    Ohio's renewable policy is set to come back into the public sphere next month, when a legislative commission delivers a report about the RPS freeze that is meant to guide future legislation. Greens say the very name of the body—the Energy Mandates Study Committee—gives an indication of how it is likely to come down.

    The debate also comes as Ohio has to comply with the EPA's recently announced rules reducing carbon emissions from the power sector. While most Republicans have come out viciously against the rules, which they say are a job-killing over-reach, Kasich hasn't been nearly as strong.

    Speaking to reporters in New Hampshire the day after the plan was announced, Kasich criticized the rule, saying: "I don't think it's a climate change plan. I think it's an unemployment plan." Ohio's attorney general also joined with 14 other states last week in asking a federal court to put a stay on the rules, arguing that states are facing economic harm by having to prepare for the standards, which do not have to be implemented until 2022.

    Beyond 200 pages of comments the state filed on the proposed rule, Kasich hasn't said much on the rule. He's also given no indication that he'll opt out of the rule, as other Republicans have done.

    Ohio is required to slash its power sector emissions by 36 percent of 2005 levels by 2030 under the EPA rules, a target that can come through a variety of measures, including switching to natural gas, boosting the use of renewable energy, and retiring coal plants. And that's where Ohio's RPS could come back into play.

    "Doing away with those clean-energy standards will be disruptive to meeting the federal rules," said Woodrum. "I think those dots are currently being connected among decision makers."

    Daniel J. Weiss, senior vice president for campaigns at the League of Conservation Voters, said that if Kasich brought back his early support for clean energy, he could separate himself from the crowded Republican field.

    "It could set him apart from the vast majority of candidates who are in the 'drill-baby-drill caucus,'" Weiss said. "In a multicandidate field where the most conservative voters are unlikely to support someone like Kasich, there's an opportunity to attract those who are not the most conservative. Whether he or another candidate wants to seize that opportunity is another question."

    Nichols pushed back on the notion that Kasich didn't have a clear-energy policy, saying: "We believe in coal, we believe in nuclear, we believe in an 'all of the above strategy,' and that includes renewables. Everybody knows that." But Nichols said there aren't plans for Kasich to release any sort of larger energy platform or to address his state's RPS freeze on the trail. Discussion of the latter, he said, would be driven by the committee report and "if need be, we'll talk about it."

    The question then is how firm Kasich decides to be when the need arises.

    "I think Gov. Kasich believes we should have a balanced energy policy that includes renewable energy and energy efficiency because it's the right thing to do," said Kelter of ELPC. "Where he comes down on defining 'balanced' is still unknown. He's never publicly said it."

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15. D.C. Circuit's CSAPR Ruling Casts Doubt Over Future Interstate Air Trading

    Aug 17, 2015 | InsideEPA

    By Stuart Parker

    The U.S. Court of Appeals for the District of Columbia Circuit's ruling remanding Cross-State Air Pollution Rule (CSAPR) "budgets" to EPA for reconsideration casts major doubt over the viability of any future agency interstate emissions trading program because of strict limits the court appears to place on such programs, sources say.

    But an EPA spokeswoman counters that "[t]his is not EPA's reading" of the D.C. Circuit's July 28 decision inEME Homer City Generation L.P. v. EPA, which remanded the budgets but left the rest of the landmark sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions trading program intact. The spokeswoman says EPA will address the decision in a pending rulemaking designed to help further cut transported emissions beyond CSAPR's mandates.

    The D.C. Circuit's ruling for now ends long-running litigation of CSAPR -- although some related lawsuits continue -- following an initial 2-1 decision issued in 2012 that rejected all challenges to the trading program. Critics of the rule then appealed it to the Supreme Court, which issued a 6-2 ruling in April 2014 that upheld the overall structure of the trading regime.

    However, the high court did not address a host of technical and other challenges to the rule -- including fights over the budgets, which are emissions limits established for states under CSAPR. The justices remanded the litigation over the rule to the D.C. Circuit, which issued a July 28 unanimous ruling that left the structure of the rule largely intact, but vacated and remanded to EPA the budgets for 13 states after finding flaws in EPA's approach.

    In last month's EME Homer City ruling, the unanimous three-judge panel expressed concern that EPA's vacated budgets led to "over-control" -- forcing upwind states to cut emissions more than is required for downwind states to meet regulatory air standards. The court's concerns about over-control will have serious ramifications going forward for EPA's cost-effectiveness thresholds that are key to interstate trading efforts, sources say.

    The appellate court appears to imply that state-specific thresholds for cost-effectiveness are needed -- which would effectively eliminate interstate trading as a policy option, some legal observers say.

    Judge Brett Kavanaugh, writing the unanimous opinion in the new EME Homer City decision, focused on the need to avoid over-control of emissions from upwind states in CSAPR.

    CSAPR seeks to help states attain the 1997 ozone national ambient air quality standards (NAAQS), expressed as 85 parts per billion (ppb), and also the 2006 fine particulate matter (PM2.5) NAAQS, set at 15 micrograms per cubic meter (ug/m3) by curbing ozone-forming NOx and SO2 that leads to PM2.5 formation.

    The Supreme Court in its ruling on CSAPR said on the subject that over-control of emissions from an upwind state to a particular downwind location to which it is "linked" is permissible only in certain circumstances. Linked states are those contributing pollution amounting to at least 1 percent of the national ambient air quality standard (NAAQS) for either ozone or PM2.5 in areas failing to attain these standards.

    Such over-control may be tolerated if there are other downwind areas also linked to the upwind state that are in NAAQS "nonattainment," or which see their "maintenance" of NAAQS attainment threatened by the upwind emissions. The high court left open the possibility of "as-applied" challenges by states if they feel they are being over-controlled and are not contributing to the NAAQS attainment problems of any downwind area.

    'As-Applied Challenges'

    Kavanaugh in his latest ruling says that "[i]n evaluating petitioners' as-applied challenges" to the CSAPR emissions budgets "we thus must determine whether a downwind location would still attain its NAAQS if linked upwind States were subject to less stringent emissions limits" as a result of the high court's decision.

    He further judges stringency of controls in terms of EPA's cost-effectiveness thresholds, which are measured in dollars per ton of pollution prevented. The agency in CSAPR established four such thresholds: $500/ton for all states in the annual NOx trading pool; $500/ton for the states in the ozone-season (summertime) trading pool; $2,300/ton for SO2 for states in trading Group One, and $500/ton for SO2 trading Group Two.

    Kavanaugh holds that if an upwind state can reduce its emissions at a lower cost than that assumed by EPA -- for example, $100/ton, rather than $500/ton -- and still meet its obligations to help the downwind areas to which it is linked meet the NAAQS, then this is evidence of unlawful over-control.

    EPA in CSAPR employed such uniform cost-effectiveness thresholds to provide the basis for interstate trading. States are permitted to trade with each other if they have the same cost-effectiveness threshold -- so Group One SO2 states may not trade with states in Group Two.

    The agency in the suit argued that uniformity is essential to the effective functioning of a market, because states required to install more expensive controls cannot trade on an equal basis with those only required to impose much cheaper controls. Sources note that utilities operating in multiple states will generate power wherever it is cheapest for them to do so, and electricity markets will buy power generated at the cheapest price, creating the danger of "leakage," or migration of generation to the lower-cost -- and frequently upwind -- states.

    Kavanaugh in his ruling cites EPA's argument from briefing in the case: "EPA says that uniform cost thresholds are important because they subject 'to stricter regulation those States that have done relatively less in the past to control their pollution' and prevent those States from 'free riding on their neighbors' efforts to reduce pollution.'"

    But Kavanaugh dismisses such concerns, writing that the Supreme Court's opinion "explicitly authorized as-applied challenges that, when successful under the principles outlined by the Court, will necessarily mean a lack of uniformity in certain circumstances. . . . EPA's uniform cost thresholds have required States to reduce pollutants beyond the point necessary to achieve downwind attainment. That violates the Supreme Court's clear mandate in EME Homer."

    Using the existing "linkage" test, some 26 states would appear to be linked to downwind nonattainment or "maintenance" areas for the purposes of the next transport rule, according to an Aug. 4 notice of data availability (NODA) containing the latest EPA air quality modeling to support a new rule. EPA in the NODA stresses, however, that it will not decide on policy issues such as cost-effectiveness thresholds under it proposes another transport rule

    Sources say that this conception of how to measure over-control is problematic. One environmental legal source says it "will have crippling impacts" on EPA's ability to use trading programs to address the issue of interstate pollution if Kavanaugh's view prevails in the entire circuit, suggesting that a motion for en banc review from EPA or other supporters of CSAPR among environmental groups is a possibility.

    Command-And-Control Regulation

    If Kavanaugh's ruling stands, the power industry "will have shot itself in the foot" in its opposition to CSAPR, because by eliminating interstate trading as an option, the courts leave EPA more inclined to impose stricter command-and-control type regulation of individual power plants, says the environmentalist.

    An industry legal source agrees that EPA could struggle to use interstate trading again in the pollutant transport context as a result of the new ruling. That could hinder the agency's ability to use trading, which allows companies to either install pollution controls and earn emissions reduction compliance credits, or buy credits to comply.

    But the source argues that "it wasn't so much the D.C. Circuit's opinion as the Supreme Court's opinion that sounded the death knell," suggesting Kavanaugh's interpretation of the high court's opinion is correct.

    "In the future, you are pretty much going to see intrastate programs," says the source. Intrastate emissions trading programs are much more limited in scope as they only allow trading of emissions between facilities within one state, whereas interstate programs allow trading across several states. CSAPR includes both types of trading.

    The industry source notes that interstate trading was already limited in CSAPR, due to a previous D.C. Circuit ruling that remanded the Clean Air Interstate Rule (CAIR), CSAPR's predecessor program. The court in that 2008 decision found that CAIR had failed to tie upwind emissions to downwind air quality problems, among other failings.

    The source says that because of the potential significant restrictions on future interstate trading, the overall cost-effectiveness of CSAPR and successor rules will fall, even as the costs to utilities in certain states also fall. CSAPR will not be able to cut pollution as much to help states attain the agency's ozone and PM2.5 NAAQS, the source says, and certain states like Texas will see their emissions budgets rise in the future.

    The real importance of the court's remand, sources agree, is for future transport rules, because much of the country is already attaining the 1997 ozone NAAQS, and indeed many areas will meet the tougher 2008 standard without the need for new regulation. If EPA as expected adopts a NAAQS of 70 ppb or lower, many areas will be thrown into nonattainment, however, making interstate transport a highly-charged issue once more.

    Cost-Effectiveness Thresholds

    But a second environmental attorney disagrees that the EME Homer City ruling limits trading, and argues that EPA could "fine tune" its approach, perhaps by using more groups of states with different cost-effectiveness thresholds. The agency could "differentiate a bit more between differently situated states," the source says.

    One Northeastern air pollution expert adds that the new ruling does little or nothing to curb interstate trading, because the court already found unfettered trading illegal under CAIR.

    The "latest D.C. Circuit decision may result in increases in some state emission budgets, but the constraints on interstate trading already existed from the CAIR holding. To the extent leakage may occur, it would occur no matter the program, if from a covered state to an uncovered state," according to the source.

    The source notes that EPA in its recent NODA released new air quality modeling data to support its forthcoming interstate transport rule, expected in the fall. In the document, EPA outlines its projections of which states will struggle to meet the 2008 ozone NAAQS in 2017, and what the contribution of upwind states to downwind states' NAAQS attainment problems will be in future rulemakings.

    The first environmentalist, however, says Kavanaugh's opinion "is a superficial analysis that does not give any credence at all to the Calpines of the world," referring to electric utility Calpine that supported EPA in the case. Calpine is one of a group of "clean" utilities using a high percentage of gas-powered, nuclear or renewable generation that backed CSAPR, and in particular EPA's consideration of cost-effectiveness in the rule. The source says it is a "reasonable prospect" that the D.C. Circuit's opinion is the "death knell" for interstate trading in interstate transport rules.

    Further, when EPA reconsiders CSAPR on remand, it would be "indefensible" for the agency to do so without re-gearing the rule to meet current NAAQS. Failure to issue a revised transport rule that seeks to meet the latest NAAQS would "provoke a slam-dunk lawsuit from public health advocates," the source says. 

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16. Environmentalists, EPA, Industry Agree On Schedule For CAFO Reporting Suit

    Aug 17, 2015 | InsideEPA

    By Suzanne Yohannan

    Environmentalists, EPA and agriculture industry officials have agreed on a court briefing schedule in litigation revived by environmental petitioners in which a federal appellate court will review the legality of a 2008 EPA rule exempting concentrated animal feeding operations (CAFOs) from toxic reporting requirements.

    The agreement advances environmentalists' attempt to eliminate the exemptions, which they argue illegally deprives communities of exposure information about hazardous substances from CAFOs. Opening briefs are due Oct. 2 under the agreement, with responses slated for Jan. 11 and reply briefs due Feb. 5, according to the agreement.

    Advocates are challenging the legality of EPA's 2008 rule exempting CAFOs from reporting requirements for ammonia and hydrogen sulfide under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA).\

    Environmental petitioners Waterkeeper Alliance, Sierra Club, The Humane Society of the United States, Environmental Integrity Project and The Center for Food Safety filed a July 28 reply brief with the U.S. Court of Appeals for the District of Columbia Circuit in Waterkeeper Alliance, et al. v. EPA, outlining the schedule.

    The environmental petitioners are asking the court to grant a motion to recall a 2010 court mandate that allowed for a voluntary remand of the exemptions rule without vacatur. The groups are seeking the recall because EPA never followed through to issue mandatory reporting rules for CAFOs.

    Environmentalists this year revived the litigation, and EPA last month signaled to the court it is amenable to the court setting a schedule to brief the merits of the environmentalists' original petition brought years ago seeking to challenge the reporting exemptions.

    Now, in the July 28 brief, the environmental petitioners say they, National Pork Producers Council, EPA and intervenors U.S. Poultry & Egg Association, National Chicken Council and National Turkey Federation "have conferred and agreed upon a schedule for briefing that would be amenable to all parties if the Court were to grant the Motion to Recall the Mandate." Under this agreed-to schedule, opening briefs would be filed Oct. 2, response briefs due Jan. 11, and reply briefs due Feb. 5, the brief says.

    Reporting Requirements

    The lawsuit challenges EPA's 2008 rule that exempts farms from right-to-know reporting requirements under CERCLA and EPCRA that compel facilities emitting significant quantities of hazardous substances into the air to report those levels.

    The rule "exempts all animal feeding operations . . . from the CERCLA requirement to notify the National Response Center of releases of hazardous substances into the air from animal waste, and exempts all but the largest [CAFOs] from the EPCRA requirement to report such releases to state and local officials," the plaintiffs say in their April motion in the case.

    In 2009, the environmental petitioners petitioned the D.C. Circuit to review the exemption rule, arguing it violates CERCLA and EPCRA, the motion says.

    But the suit was sidelined when EPA sought to resolve the litigation by agreeing to a pact with the groups that allowed for a voluntary remand of the rule without vacatur, while the agency gathered more data it said it needed before creating mandatory reporting requirements for CAFOs. The agency, however, never issued those reporting rules.

    The agency has said its reconsideration of the exemptions is contingent on development of final emissions estimation methodologies for CAFOs. But the environmentalists in their April motion say the agency shows no sign of finishing its reconsideration of the exemptions, which appears at a "complete standstill."

    "EPA's inaction defies the Court's remand order and thwarts its jurisdiction by shielding the Exemption Rule from judicial review," the groups say in their April motion. "In this circumstance, preserving the status quo, which would allow EPA to ignore the Court's mandate indefinitely, should not be an option."

    Rather, the best option would be for the court to recall the mandate and decide the groups' 2009 petition for review, instead of imposing a timetable for EPA to act, as any revision of the exemption rule that the court requires within a set timeframe, short of vacatur, would raise the same legal issues presented in the 2009 petition, the groups say.

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Transportation News

17. Freight Lines Can't Hide Info About Crude Transport -- Judge

    Aug 17, 2015 | E&E - Greenwire

    By Sean Reilly

    A Maryland judge has ruled against two freight railroads that had sued to keep secret information on oil train shipments through the state.

    In separate decisions issued Friday, Baltimore City Circuit Judge Lawrence Fletcher-Hill ruled that CSX Transportation Inc. and Norfolk Southern Railway Co. had failed to make a case that the information on train routes and types of crude going through Maryland should be kept from public view.

    In a May 2014 emergency order, the U.S. Department of Transportation began requiring railroads to provide those details to state emergency response commissions. The two railroads filed suit last summer after the Maryland Department of the Environment agreed to release the information in response to a request under the state open records law, arguing that it should be kept confidential under exemptions covering trade secrets and commercial information.

    In his decision to throw out both suits, Fletcher-Hill said the railroads had failed to meet the standards needed to trigger those exemptions but temporarily stayed his order to give them time to decide whether to appeal or seek a further stay. Spokespeople for CSX, headquartered in Jacksonville, Fla., and Norfolk Southern, based in Norfolk, Va., did not immediately reply to requests for comment today.

    Applauding Fletcher-Hill's decision was the Chesapeake Climate Action Network, which has also filed a request for the crude-by-rail information. "This is a significant victory for transparency and for Maryland residents living along the path of oil trains," Anne Havemann, the group's general counsel, said in a statement.

    While the disclosure issue has arisen in other states, the Maryland litigation marked the first time that a railroad had gone to court to block release of the information, according to the network.

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