Preview Newsletter
ACC AM Nov 23
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(ACC Mentioned) Demilec, Publix and Recycling Partnership Receive Innovation in Plastics Recycling Award
Nov 20, 2015 | Plastics Today
By Clare Goldsberry
The American Chemistry Council (ACC; Washington, DC) announced that Demilec Inc., Publix and The Recycling Partnership have been selected to receive the 2015 Innovation in Plastics Recycling Award. The program recognizes companies and nonprofits that successfully bring new technologies, products and initiatives... -
(ACC Mentioned) For First Time: U.S. Plastic Bottle Recycling Tops 3 Billion Pounds
Nov 23, 2015 | Recycling Portal
Plastic bottle recycling grew 97 million pounds in 2014, increasing 3.3 percent, to top 3 billion pounds for the year. The recycling rate for plastic bottles climbed 1.0 percent to 31.8 percent for the year, according to figures released by the Association of Plastic Recyclers (APR) and the American Chemistry Council (ACC). -
Industrial Facilities to Report Solvent Use to EPA
Nov 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Certain industrial facilities will be required to report to the Environmental Protection Agency on their use of a toxic chemical deemed a likely carcinogen to humans that is commonly used in activities such as degreasing and dry cleaning, according to a final rule to be published in the Federal Register Nov. 23. -
EPA Finalizes Rule For Reporting Dry Cleaning Solvent Carcinogen
Nov 20, 2015 | E&E News PM
By Sam Pearson
U.S. EPA will finalize a rule to require companies to report emissions of a solvent linked to cancer. The agency is set to issue a final rule scheduled to be published in the Federal Register on Monday that would add 1-bromopropane (nPB), a dry cleaning solvent, to a list of chemicals subject to annual reporting requirements... -
White House Unveils Regulatory Agenda
Nov 20, 2015 | The Hill - E2 Wire
By Lydia Wheeler
The White House on Friday unveiled its semiannual regulatory agenda, detailing the rules that federal agencies will make top priorities in the next year. The Obama administration's fall Unified Agenda contains hundreds of rules in the works at agencies across the government... -
EPA Previews Dec. 2 Inorganic Arsenic Meeting
Nov 23, 2015 | BNA Daily Environment Report
Advance copies of information about the inorganic arsenic assessment the Environmental Protection Agency intends to share were released by the agency Nov. 20. The EPA will present and discuss the information Dec. 2 during a meeting with a National Academies of Sciences, Engineering, and Medicine committee that will offer guidance... -
NTP to Report on Flame Retardants, Metal Fluids
Nov 23, 2015 | BNA Daily Environment Report
The National Toxicology Program expects to release by Jan. 5 draft technical reports summarizing the results of its toxicological studies of antimony trioxide, a flame retardant, and a metal working fluid mixture known as TRIM® VX, the program will announce in a notice scheduled for the Nov. 23 Federal Register. -
N.J.-N.Y. Pipeline Plan Enters Permitting Stage
Nov 23, 2015 | BNA Daily Environment Report
By Alan Kovski
A proposal to build a pair of oil pipelines between Linden, N.J., and Albany, N.Y., has reached one milestone in its effort to receive permits and plans to reach the next milestone within six weeks. Pilgrim Pipeline Holdings LLC filed a use and occupancy permit request Nov. 18 with the New York State Thruway to build the Pilgrim Pipeline project... -
Obama Signs Two-Week Highway Program Extension
Nov 23, 2015 | BNA Daily Environment Report
President Barack Obama signed Nov. 20 a short-term extension of authorization for surface transportation—including hazardous materials transportation—programs. The bill (H.R. 3996), which extends authorization for these programs through Dec. 4, was passed by voice vote in the Senate Nov. 19, and by voice vote in the House... -
PHMSA to Publish Editorial Clarifications Rule
Nov 23, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish Nov. 23 editorial clarifications and fixes to the hazardous materials regulations. The final rule (RIN 2137-AF11), which takes effect Dec. 23, doesn't add new requirements, so no notice-and-comment period is needed, the agency said in its final rule. -
EPA Sued Over Power Plant Effluent Guidelines
Nov 23, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Union Electric Co. and a coalition of power utilities are challenging the Environmental Protection Agency's recently promulgated effluent limits to regulate discharges of selenium, zinc, arsenic and other toxic chemicals from about 1,080 power plants (Union Electric Co. v. EPA, 8th Cir., 15-03658, 11/19/15). -
Power Plan, Water Rule Possible Omnibus Riders, Cornyn Says
Nov 23, 2015 | BNA Daily Environment Report
By Ari Natter
Republicans are pushing to use an omnibus government spending bill to roll back the Obama administration's Clean Power Plan and a rule clarifying which waters can be regulated under the Clean Water Act, the Senate's No. 2 Republican said Nov. 20. Those regulations and others will be part of a negotiation with Democrats ... -
EPA Proposes Fix To Keep Mercury Rule In Effect
Nov 20, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA today released a proposed fix that would keep in place its mercury rule and addresses the legal issue cited last summer by the Supreme Court. Click here for the pre-publication proposal, here for a 31-page legal memorandum and here for a fact sheet. -
EPA Proposes Cost Finding to Support MATS Rule
Nov 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio and Andrew Childers
The Environmental Protection Agency has proposed to reaffirm its finding that it's “appropriate and necessary” to regulate power plant emissions of mercury after considering cost at the direction of the U.S. Supreme Court. The agency Nov. 20 released a proposed supplemental finding that cost consideration doesn't alter the EPA's previous ... -
EPA Cites Discretion To Avoid Cost-Benefit Review In Utility MACT Finding
Nov 20, 2015 | InsideEPA
By Stuart Parker
EPA is citing discretion under the Clean Air Act to avoid a comprehensive new cost-benefit analysis for whether its utility air toxics rule is “appropriate and necessary,” saying a more limited assessment of implementation costs released Nov. 20 satisfies a Supreme Court mandate to factor costs into the appropriate and necessary finding. -
OMB Completes Review Of EPA Utility MACT Cost Finding
Nov 20, 2015 | InsideEPA
The White House Office of Management & Budget (OMB) has completed its review of EPA's proposed notice on considering costs as part of its finding that its Clean Air Act utility air toxics rule was “appropriate and necessary,” which the agency has said will address a Supreme Court ruling faulting the lack of cost review. -
RGGI Eyes Phased Approach To Broad Multi-State Trading Under ESPS
Nov 20, 2015 | InsideEPA
By Abby Smith
State members of the Northeast's Regional Greenhouse Gas Initiative (RGGI) are considering a phased approach for expanding trading beyond the nine-state region as a means of complying with EPA's greenhouse gas rule for existing power plants, signaling that the program's excess emissions allowances may not be available -- at least initially... -
EPA Agenda Calls for More Climate Rules
Nov 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio, Andrew Childers, Rebecca Kern, Alan Kovski, Rachel Leven, Pat Rizzuto, Amena H. Saiyid, Renee Schoof and Pat Ware
The Environmental Protection Agency will follow up issuance of its first-ever greenhouse gas standards for power plants with an aggressive slate of climate change rules in 2016 targeting emissions from trucks, landfills and oil and gas wells, according to the agency's fall 2015 regulatory agenda, released Nov. 20. -
EPA Proposes Fix To Air Pollution Rule After Supreme Court Loss
Nov 20, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is trying to fix an air pollution rule that the Supreme Court said was improperly written. The court decided in June that the EPA’s limits on mercury and other toxic air pollutants from coal-fired power plants were invalid because the agency did not consider costs before it decided to pursue the... -
Inhofe Challenges Authority Of Obama's Climate Council
Nov 20, 2015 | E&E News PM
By Hannah Hess
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) today questioned the legal authority for the White House Council on Environmental Quality to continue to operate without a Senate-confirmed chairman. In a letter to President Obama, Inhofe challenged the standing of former National Park Service official Christy ... -
GOP Chairman Challenges Obama Environmental Panel
Nov 20, 2015 | The Hill - E2 Wire
By Devin Henry
Sen. James Inhofe (R-Okla.) is challenging the White House on the leadership of a key environmental advisory panel. In two Friday letters to the Obama administration, the chairman of the Environment and Public Works Committee questioned whether the Council on Environmental Quality (CEQ) is allowed to continue operating...
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Nov 20, 2015 | Plastics Today
By Clare Goldsberry
The American Chemistry Council (ACC; Washington, DC) announced that Demilec Inc., Publix and The Recycling Partnership have been selected to receive the 2015 Innovation in Plastics Recycling Award. The program recognizes companies and nonprofits that successfully bring new technologies, products and initiatives to communities and the marketplace that demonstrate significant advances in plastics recycling. ACC announced the awards in recognition of America Recycles Day.
"Each of these organizations is a leader in recycling innovation, and their contributions will likely inspire ongoing contributions to the rapidly growing field of plastics recycling," said Steve Russell, Vice President, Plastics, at the American Chemistry Council.
Demilec Inc. converts polyethylene terephthalate (PET) scrap into polyols, which can be used in its spray foam insulation products. The company has recycled more than 300 million plastic bottles into spray foam insulation products in recent years and expects to recycle more than 35 million plastic bottles into high-performing spray foam insulation in 2015. In addition to the environmental benefits of plastics recycling, spray foam insulation helps to dramatically increase energy efficiency in homes and buildings.
Publix-Super Markets has established itself as a leader in recycling rigid plastic packaging, such as commercial-sized high-density polyethylene (HDPE) and polypropylene (PP) containers. With more than 1,100 stores and nine distribution centers, Publix optimized its back-of-store recycling stream through the use of vertical and horizontal balers that produce large, dense bales of clean plastic material for recycling. The result is tons of high-quality plastics that are separated, baled and made available to recyclers each week.
The Recycling Partnership (TRP) facilitates public-private partnerships to significantly boost curbside recycling programs. Over the last 15 months, TRP has provided 115,000 large recycling carts and improved public education in four cities: Florence, AL; Columbia, SC; Richmond, VA; and East Lansing, MI. Thanks to TRP's efforts, 18,000 additional households now have access to a recycling program that collects wide mouth plastic containers in addition to bottles. Cumulatively these efforts are expected to recover an additional 22 million pounds of plastics over the next 10 years.
ACC's Innovations in Plastics Recycling Awards contest is open to all U.S. companies, nonprofits, individuals and government bodies (including schools) that collect or process plastics for recycling, promote plastics recycling through education and infrastructure, manufacture equipment used to collect or process plastics for recycling, or manufacture a new product made in whole or part from recycled plastic.
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(ACC Mentioned) For First Time: U.S. Plastic Bottle Recycling Tops 3 Billion Pounds
Nov 23, 2015 | Recycling Portal
Plastic bottle recycling grew 97 million pounds in 2014, increasing 3.3 percent, to top 3 billion pounds for the year. The recycling rate for plastic bottles climbed 1.0 percent to 31.8 percent for the year, according to figures released by the Association of Plastic Recyclers (APR) and the American Chemistry Council (ACC).
The 25th annual National Post-Consumer Plastics Bottle Recycling Report marks the twenty-fifth consecutive year that Americans have increased the pounds of plastic bottles collected for recycling since the survey began in 1990. Trends in plastics recycling highlighted in the report include:
Single-stream collection of household recyclables continues to grow, resulting in higher participation ratesUse of plastic bottles in packaging applications is expanding but offset by continued lightweighting and increased use of concentrates with smaller, lighter bottlesLack of access to away-from-home recycling continues to be a barrier to increased collectionRecycling rate for HDPE bottles up to 33.6 percent
During 2014, the collection of high-density polyethylene (HDPE, #2) bottles – a category that includes milk jugs and bottles for household cleaners and detergents – rose to nearly 1.1 billion pounds, a gain of over 62 million pounds from 2013. The recycling rate for HDPE bottles rose to 33.6 percent.
A higher percentage of all post-consumer plastic bottle material was processed by domestic reclaimers in 2014. Exports of all post-consumer plastic bottles rose slightly (in pounds) but fell to the lowest percentage of exports in six years (21.9 percent) as the amount of bottles collected increased faster than did exports, according to the report. The drop in exports may reflect the strength of the U.S. dollar and growth in domestic reclamation capacity.
U.S. reclamation capacity for HDPE increased to its highest level ever in 2014. Exports of HDPE bottles rose from 15.6 to 19.7 percent (218 million pounds) of domestically collected material, and domestic reclaimers processed approximately 951 million pounds of HDPE bottles in 2014.
25 years of year-over-year growth
“The message to American consumers is that plastic bottles are valuable resources even after they’ve been used,” said Steve Alexander, executive director of APR. “Americans generated an estimated $730 million in recycled plastic bottles in 2014. The simple act of recycling helps generate local revenue, supports recycling jobs, and enables us to continue to benefit from these useful resources.”
“This report clearly illustrates 25 years of year-over-year growth in recycling plastic bottles,” added Steve Russell, vice president of plastics for the American Chemistry Council. “Plastics help reduce energy use and conserve resources—and after use, these efficient products and packages are increasingly valued as recycled materials. We’re confident that plastics recycling will continue to grow, and we will continue working to accelerate that growth.”
PP bottle recycling slightly increased
This year’s survey also found that the collection of polypropylene (PP, #5) bottles jumped 28.3 percent for the year to reach 79.5 million pounds, as the collection rate sprang to 44.9 percent. Domestic processing of postconsumer PP bottles grew to 65.3 million pounds. PP bottles deliberately recycled as PP (instead of blended with HDPE) rose from 44.2 million pounds in 2013 to 45.6 million pounds in 2014. Although PP caps, closures and non-bottle containers are widely collected for recycling in the United States, these data are presented in a separate report on recycling non-bottle rigid plastics, which will be released in the coming months (until then see “2013 Rigids Recycling Report”).
Together, polyethylene terephthalate (PET, #1) and HDPE bottles continue to make up nearly 97 percent of the U.S. market for plastic bottles with PP comprising 1.9 percent, LDPE 0.8 percent and PVC 0.4 percent.
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Industrial Facilities to Report Solvent Use to EPA
Nov 23, 2015 | BNA Daily Environment Report
By Rachel Leven
Certain industrial facilities will be required to report to the Environmental Protection Agency on their use of a toxic chemical deemed a likely carcinogen to humans that is commonly used in activities such as degreasing and dry cleaning, according to a final rule to be published in the Federal Register Nov. 23.
The 1-Bromopropane solvent was labeled “reasonably anticipated to be a human carcinogen” by the National Toxicology Program in October 2014, and the agency determined that manufacturing, processing or use of the chemical would likely exceed reporting thresholds for its Toxics Release Inventory.
The final rule (RIN 2025-AA41) that would require reporting of certain uses of the solvent to the EPA's Toxics Release Inventory could affect industries such as coal and metal mining and electric utilities.
The rule that was executed largely under the Emergency Planning and Community Right to Know Act and will take effect Nov. 30 wasn't deemed “significant” by the agency. Toxics reports for 2016 activities that are due in July 2017 would need to account for the toxic chemical.
The rule was proposed in April and—of four comments received—three comments were supportive of the EPA's action (80 Fed. Reg. 20,189).
Among those supportive of the proposal was the Halogenated Solvents Industry Alliance, which includes companies such as the Dow Chemical Co. and Occidental Chemical. The sole opposition to the requirement was Albemarle Corp., a specialty chemical company (192 DEN A-1, 10/3/14).
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EPA Finalizes Rule For Reporting Dry Cleaning Solvent Carcinogen
Nov 20, 2015 | E&E News PM
By Sam Pearson
U.S. EPA will finalize a rule to require companies to report emissions of a solvent linked to cancer.
The agency is set to issue a final rule scheduled to be published in the Federal Register on Monday that would add 1-bromopropane (nPB), a dry cleaning solvent, to a list of chemicals subject to annual reporting requirements under the Emergency Planning and Community Right-to-Know Act.
EPA proposed adding 1-bromopropane to the list earlier this year (Greenwire, April 15).
EPA previously said the action was prompted by the chemical's inclusion in the 13th Report on Carcinogens, a document produced by the National Toxicology Program, part of the Department of Health and Human Services.
Scientists at the NTP found the chemical was "reasonably anticipated to be a human carcinogen." EPA officials, in the proposed rule, noted that 1-bromopropane was the only chemical to receive that designation that did not have reporting requirements under EPCRA.
During a public comment period that ended in June, some chemical companies argued against the move.
EPA was relying on information that "is out of date, incorrect, and insufficient to support the Proposed Rule," comments submitted by Albemarle Corp. said.
The agency's decision, though, drew support from the Halogenated Solvents Industry Alliance Inc., an industry group.
Faye Graul, the group's executive director, wrote in public comments that scientific literature "clearly" supports the move.
"Case studies have indicated severe neurotoxicity in workers exposed to nPB; many of the case subjects needed hospitalization and the effects may have been irreversible," Graul wrote.
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White House Unveils Regulatory Agenda
Nov 20, 2015 | The Hill - E2 Wire
By Lydia Wheeler
The White House on Friday unveiled its semiannual regulatory agenda, detailing the rules that federal agencies will make top priorities in the next year.
The Obama administration's fall Unified Agenda contains hundreds of rules in the works at agencies across the government, including many that have been in the pipeline for years. The new agenda updates progress on many of the rules, providing new insight about the president's regulatory priorities during his last months in office.
Among the changes revealed in the fall agenda is a new release date for final Labor Department regulations meant to limit workers' exposure to silica dust.
Safety advocates have decried the numerous delays on the rule, which aims to protect workers from the cancer-causing dust most commonly found at construction sites and shipyards. The final rule has been scheduled for February.
James Goodwin, a senior policy analyst with the Center for Progressive Reform, said the rule is long overdue and lamented the increasing length of time it has taken to implement major worker health and safety rules.
“lt's the first health-based standard that’s been finished,” he said. “So that’s a big deal. They used to put those out in the '70s a couple times a year.”
The agenda also sets a timeline for the release of final rules from the Food and Drug Administration (FDA). Final rules for the sanitary transportation of animal and human food are expected in April; final rules to revise nutrition fact labels on food and dietary supplements are due out in March.
Regulatory advocates are typically frustrated with the Obama administration’s timing in releasing the report, which traditionally comes out just before the Thanksgiving holiday as lawmakers are headed out of town.
Advocates say there are bigger concerns are over how many rules are delayed from one agenda to the next. Goodwin said a quick review of the plan turned up 24 rules that have been pushed back by at least two months.
The final FDA rules for regulating all tobacco products, including electronic cigarettes and conventional cigars, that were scheduled for June in the spring agenda are now scheduled to be released this month. But the White House Office of Information and Regulatory Affairs has six meetings with industry groups scheduled into December.
Goodwin said the e-cigarrette rule alone illustrates why the regulatory agenda is out of date the second it’s published.
“It’s at least five months behind already,” he said of the rule. “My guess is it’s not coming out until December or January."
The Environmental Protection Agency has also moved the deadline for final formaldehyde emission standards for composite wood products from this month to May and moved proposed rules to ban trichloroethylene, or TCE, under the Toxic Substances Control Act from January to March.
Amit Narang, a regulatory policy advocate at Public Citizen, said time is running out for the administration to finish much needed public health and safety protections.
"The administration must work quickly to finalize the numerous health and safety regulations that are currently languishing in the rulemaking process, in some cases since the president's first term"
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EPA Previews Dec. 2 Inorganic Arsenic Meeting
Nov 23, 2015 | BNA Daily Environment Report
Advance copies of information about the inorganic arsenic assessment the Environmental Protection Agency intends to share were released by the agency Nov. 20. The EPA will present and discuss the information Dec. 2 during a meeting with a National Academies of Sciences, Engineering, and Medicine committee that will offer guidance to the agency. The EPA's Integrated Risk Information System (IRIS) program relaunched its inorganic arsenic assessment in 2013 after a previous assessment effort raised concerns among industry and water utility groups (06 DEN A-4, 1/9/13). The earlier, 2010 draft assessment concluded that arsenic was about 17 times more potent in being able to cause cancer than the agency had previously estimated. The EPA's revised plans to evaluate inorganic arsenic, dose-response strategy and other information is available under the subhead December 2-3, 2015, at http://www2.epa.gov/iris/inorganic-arsenic-meetings-webinars#tab-2.
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NTP to Report on Flame Retardants, Metal Fluids
Nov 23, 2015 | BNA Daily Environment Report
The National Toxicology Program expects to release by Jan. 5 draft technical reports summarizing the results of its toxicological studies of antimony trioxide, a flame retardant, and a metal working fluid mixture known as TRIM® VX, the program will announce in a notice scheduled for the Nov. 23 Federal Register. The Consumer Product Safety Commission nominated antimony trioxide (CAS No. 1309-64-4) for NTP study, while the National Institute for Occupational Health and Safety nominated metal working fluids. NTP is releasing the draft reports for public comment prior to a Feb. 16 NTP Technical Reports Peer Review Panel meeting. Comments are due Feb. 2, so the peer review panel can review them prior to meeting. An advance copy of the Nov. 23 Federal Register notice is available at
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N.J.-N.Y. Pipeline Plan Enters Permitting Stage
Nov 23, 2015 | BNA Daily Environment Report
By Alan Kovski
A proposal to build a pair of oil pipelines between Linden, N.J., and Albany, N.Y., has reached one milestone in its effort to receive permits and plans to reach the next milestone within six weeks.
Pilgrim Pipeline Holdings LLC filed a use and occupancy permit request Nov. 18 with the New York State Thruway to build the Pilgrim Pipeline project and said it would file a set of permit requests with the New Jersey government by the end of the year.
The plan is for a refined product pipeline to carry gasoline and other products north, while a parallel pipeline would carry crude oil south. If built, the pipelines would take business away from barge operations on the Hudson River and, to a lesser extent, rail and truck transportation of refined products.
Part of what makes the project noteworthy is the lack of pipeline infrastructure in eastern New York and most of New England for gasoline, diesel, jet fuel and heating oil to reach wholesale and retail sites.
Another notable fact is that growing U.S. crude production has been moving from the Bakken Shale in North Dakota eastward by rails to Albany and then southward by barge at least as far as the Bayway refinery operated by Phillips 66 Co. in Linden, N.J. It is a route with the obvious potential of taking crude farther south—by barge to the refineries along the Delaware River.
Could Take One Year to Vet Project
George Bochis, vice president of development for Pilgrim Pipeline, told Bloomberg BNA Nov. 19 he expected New York regulators might take about a year to vet the project.
New Jersey officials would be able to complete their review within the same time frame, having done more up-front informal reviewing of the plan before submission of permit requests, Bochis said.
When asked why he could expect to pull business away from barge operators, Bochis said, “We'll be 10 to 25 percent cheaper as a shipper.” He said he was pretty sure oil companies would do whatever it takes to shift their transportation arrangements to the new pipelines.
But no customers have been lined up yet, and Bochis said his company couldn't expect to line them up until the line is permitted. In the oil industry, pipelines typically aren't built until customers are committed to use them.
Environmental Issues Faced
Pipelines have a record of greater safety for the environment and human health when compared to trucking, shipping or rails. That doesn't necessarily translate into acceptance of a new project, however.
Because the project plan has been floated around for a while, it has already encountered objections on environmental and safety grounds. Pilgrim Pipeline is expecting to be reaching out to all communities along the proposed route to explain the advantages of pipelines and to get the public comfortable with the idea, Bochis said.
“We want to be good neighbors and good stewards,” he said.
To start the process of engaging the public, Pilgrim Pipeline posted on its website all of the documents it submitted in New York, including a draft environmental impact statement. It will do the same with New Jersey documents, Bochis said.
Water Crossings, Highway Route
At the federal level, oil pipelines do not need construction permits, but the U.S. Army Corps of Engineers will need to approve plans for the crossing of waterways and wetlands.
Bochis said directional drilling under waterways has made that permitting easier over the years, but it still can be a substantial matter to get approval for a pipeline through extensive coastal wetlands, which are common in New Jersey.
In New York, the plan is to route the pipeline along the majority of its path within the right of way of the New York State Thruway. Bochis said his company has talked with Thruway officials enough to believe that the plan will be considered.
“They're at least interested,” he said.
There would be revenue in it for the Thruway by means of an easement procurement, if the plan is accepted. Exact terms have not been set, and other financial arrangements would be possible.
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Obama Signs Two-Week Highway Program Extension
Nov 23, 2015 | BNA Daily Environment Report
President Barack Obama signed Nov. 20 a short-term extension of authorization for surface transportation—including hazardous materials transportation—programs. The bill (H.R. 3996), which extends authorization for these programs through Dec. 4, was passed by voice vote in the Senate Nov. 19, and by voice vote in the House Nov. 16. This is widely expected to be the last short-term extension for these programs for the next several years, as there is currently a conference to come up with a final multi-year highway bill (223 DEN A-11, 11/19/15).
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PHMSA to Publish Editorial Clarifications Rule
Nov 23, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish Nov. 23 editorial clarifications and fixes to the hazardous materials regulations. The final rule (RIN 2137-AF11), which takes effect Dec. 23, doesn't add new requirements, so no notice-and-comment period is needed, the agency said in its final rule. This rule corrects typographical errors, inaccurate federal regulatory or international standard references, terminology uses and clarifies existing rules, among other things. The PHMSA notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-29683.pdf.
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EPA Sued Over Power Plant Effluent Guidelines
Nov 23, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Union Electric Co. and a coalition of power utilities are challenging the Environmental Protection Agency's recently promulgated effluent limits to regulate discharges of selenium, zinc, arsenic and other toxic chemicals from about 1,080 power plants (Union Electric Co. v. EPA, 8th Cir., 15-03658, 11/19/15).
The EPA Nov. 3 published the final effluent guidelines for power plants that mostly affect coal-fired power plants and natural gas and nuclear power plants to a lesser extent (80 Fed. Reg. 68,838).
Since the agency released the revised effluent guidelines (RIN 2040-AF14), groups representing the power plants accused the EPA of underestimating the cost of complying with the rule (212 DEN B-1, 11/3/15).
The EPA estimated an annual average industrywide cost of about $480 million for designing, building and installing pollution controls and associated infrastructure to comply with the rule.
On behalf of Union Electric and the Utility Water Act Group, Harry M. “Pete” Johnson III, an attorney based in the Richmond, Va., office of Hunton & Williams LLP, filed the petition for review Nov. 19 in the U.S. Court of Appeals for the Eighth Circuit.
The Utility Water Act Group represents the three main national groups representing investor-owned utilities, rural utilities and publicly owned utilities: the Edison Electric Institute, the National Rural Electric Cooperative Association (NRECA), and the American Public Power Association. UWAG is scheduled to file its brief Dec. 29, with a response brief expected 30 days later.
Johnson didn't return calls seeking comment.
Tracy K. Warren, spokeswoman for NRECA, told Bloomberg BNA Nov. 19 that the group, speaking for itself only, had concerns about compliance costs that are based on erroneous modeling by the EPA. But she stopped short of commenting on the specifics of the petition.
Lawsuit: First Step in Long Process
“Filing this suit is the first step in a long process to determine which appeals court will hear the case. In the meantime, NRECA and the affected co-ops will be figuring out what the new guidelines require, how to comply and, in particular, how the effluent limitation guidelines intersect with new standards for coal ash disposal,” Warren said.
The final effluent guidelines require power plants to use a suite of controls to manage discharges of arsenic, selenium, nitrates, mercury, zinc and other pollutants from power plants.
Among those controls are chemical and biological technologies to treat wastewater generated by wet scrubbers, units to curb sulfur oxide emissions from burning coal. The rule also requires that power plant owners and operators use dry handling of fly ash and bottom ash to eliminate the potential for pollution from the wastewater containing either form of ash.
The rule would regulate wastewater associated with flue gas desulfurization, fly ash, bottom ash, flue gas mercury control, combustion residual leachate from landfills and surface impoundments, nonchemical metal cleaning wastes and gasification of fuels such as coal and petroleum coke.
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Power Plan, Water Rule Possible Omnibus Riders, Cornyn Says
Nov 23, 2015 | BNA Daily Environment Report
By Ari Natter
Republicans are pushing to use an omnibus government spending bill to roll back the Obama administration's Clean Power Plan and a rule clarifying which waters can be regulated under the Clean Water Act, the Senate's No. 2 Republican said Nov. 20.
Those regulations and others will be part of a negotiation with Democrats and President Barack Obama for the year-end spending bill needed by Dec. 11, Sen. John Cornyn (R-Texas) said in a speech at the Texas Public Policy foundation in Austin.
“We are going to be working hard to roll back as many of these misguided regulations as we can,” Cornyn said.
The clean water jurisdictional regulation, known as the waters of the U.S. rule (WOTUS), has been opposed by Republicans and business groups, and Republicans, such as Sen. John Hoeven (R-N.D.) think they have a good chance of getting it included in the final bill (219 DEN A-2, 11/13/15).
The rule (RIN 2040-AF30), jointly written by the Environmental Protection Agency and the U.S. Army Corps of Engineers, took effect Aug. 28. It seeks to clarify which tributaries and isolated wetlands are subject to Clean Water Act jurisdiction.
A rider to block the EPA Clean Power Plan, one of the Obama administration's priorities, is considered to be less likely to escape a presidential veto, although Republican lawmakers have said they will continue to try.
That rule (RIN 2060-AR33), finalized in August, sets unique carbon dioxide emissions rates or alternatively mass-based emissions targets for the power sector in each state, but it tasks state regulators with developing plans to meet the targets.
“Unless we can get a presidential signature, it won't become part of the law,” Cornyn said.
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EPA Proposes Fix To Keep Mercury Rule In Effect
Nov 20, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
EPA today released a proposed fix that would keep in place its mercury rule and addresses the legal issue cited last summer by the Supreme Court.
Click here for the pre-publication proposal, here for a 31-page legal memorandum and here for a fact sheet.
The high court ruled in June that EPA should have considered costs when it issued an initial 2000 conclusion that it was “appropriate and necessary” to regulate mercury emissions from coal- and oil-fired power plants.
Using data collected during implementation, EPA concluded that factoring in costs “does not alter the EPA’s original conclusion that it is appropriate to regulate.”
EPA also defends counting co-benefits of the rule from parallel reductions in pollutants such as particulate matter because they "are a direct consequence of actions to reduce HAP emissions, are consistent with economic guidance documents, and are consistent with statutory requirements."
The proposal and memo will be open for comment for 45 days upon publication in the Federal Register. EPA will not consider other issues, including the final mercury rule itself, which it said was “supported by an extensive administrative record and based on available control technologies and other practices already used by” some power plants.
The DC Circuit Court of Appeals has yet to decide whether to vacate the rule and force EPA to start from scratch, or keep it in place while EPA completes its fix. It will hold oral arguments on the matter on Dec. 4.
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EPA Proposes Cost Finding to Support MATS Rule
Nov 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio and Andrew Childers
The Environmental Protection Agency has proposed to reaffirm its finding that it's “appropriate and necessary” to regulate power plant emissions of mercury after considering cost at the direction of the U.S. Supreme Court.
The agency Nov. 20 released a proposed supplemental finding that cost consideration doesn't alter the EPA's previous appropriate and necessary finding, which triggered a requirement that the EPA promulgate standards on power plant emissions under Section 112 of the Clean Air Act.
The U.S. Supreme Court in June ruled that the EPA erred by not factoring in cost consideration when it made that finding (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 125 DEN A-1, 6/30/15).
Attorneys contacted by Bloomberg BNA Nov. 20 weren't surprised by EPA's proposal, but one attorney predicted that the finding will eventually fuel future litigation over the agency's methodology.
The EPA had already prepared a regulatory impact analysis on the mercury and air toxics standards, which estimated compliance with the rule would cost the power industry $9.6 billion annually.
D.C. Circuit Schedules Dec. 4 Arguments
The EPA issued its proposed finding on MATS on the same day the U.S. Court of Appeals for the District of Columbia Circuit issued an order scheduling Dec. 4 oral arguments on the mercury and air toxics standards (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, order filed, 11/20/15).
While the Supreme Court ruled against the federal government in Michigan v. EPA, the court remanded the litigation back to the D.C. Circuit to determine whether the mercury and air toxics standards should be vacated or remain in place.
The petitioners in that litigation, which include the National Mining Association, White Stallion Energy Center and a coalition of 21 states led by Michigan, argued the D.C. Circuit should vacate the standards because the EPA failed to adequately answer the threshold question that Congress asked the agency to answer before issuing a regulation under Section 112 covering power plants.
The EPA has cited a “serious possibility” that the appropriate and necessary finding will quickly be reaffirmed as a reason for the D.C. Circuit to remand the standards back to the EPA without vacating them (187 DEN A-11, 9/28/15).
The EPA's fall 2015 regulatory agenda, released Nov. 20, projects that the agency will issue its final supplemental finding on MATS by May.
Additional Litigation Possible
The EPA's conclusion and the speed with which it conducted its analysis didn't come as a surprise to attorneys. However, the agency's findings and its methodology could spark additional litigation.
“That's going to be the subject of the next case, whether they did it properly and correctly,” Richard Alonso, a partner at Bracewell & Giuliani LLP, told Bloomberg BNA. “Whatever EPA does they get sued on. I don't expect this to be any different.”
Though the Supreme Court had ordered the EPA to consider the costs when making its determination that it's appropriate to regulate toxic pollution from power plants, it left to the agency how best to make that determination.
“It's telling EPA, ‘This is your job. We're not going to micromanage how you consider costs,' ” James Pew, an Earthjustice attorney, told Bloomberg BNA.
The EPA said in its proposal that the agency weighed the cost consideration against several other factors, including the amount of hazardous air pollution emitted by power plants, the associated hazards to public health and the benefits associated with the substantial reductions in hazardous emissions achieved through the MATS rule.
EPA Cites Cost, Benefits
Alonso said the EPA made it clear from the outset that it would reach the conclusion that the costs and benefits of the MATS rule justified the regulation.
“EPA sees this as a check box exercise basically,” he said. “Folks will now have the opportunity to look into the cost numbers and comment.”
However, environmental advocates said the benefits of the rule more than justify the costs incurred by the power sector.
“Our position has been all along the costs more than justify it. You have to go there,” Clean Air Task Force attorney Ann Weeks told Bloomberg BNA.
EPA Finds Costs to Be Reasonable
In its proposed supplemental finding (RIN 2060-AS76), the EPA compared those costs with the power sector's total revenue from retail sales, which reached a high of $356.6 billion in 2008 before declining to $349.6 billion in 2011.
“The projected annual compliance costs of MATS represent a small fraction of the value of overall sales,” the EPA said. “After considering the potential costs of MATS in light of power sector sales, the EPA concludes that the costs to the power sector are reasonable.”
The agency also reviewed required capital investments and the effect increased costs would have on electricity prices and determined that both are reasonable.
The EPA also cited a formal cost-benefit analysis for the mercury rule as supporting the appropriate and necessary finding. While the agency said such a formal analysis isn't required to support that finding, the analysis shows that the benefits of regulating power plant emissions “are significant and far exceed the cost.”
Comments on Proposed Finding
The EPA will accept public comment on its proposed supplemental finding for 45 days following publication of the document in the Federal Register. Comments will be accepted at http://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2009-0234.
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EPA Cites Discretion To Avoid Cost-Benefit Review In Utility MACT Finding
Nov 20, 2015 | InsideEPA
By Stuart Parker
EPA is citing discretion under the Clean Air Act to avoid a comprehensive new cost-benefit analysis for whether its utility air toxics rule is “appropriate and necessary,” saying a more limited assessment of implementation costs released Nov. 20 satisfies a Supreme Court mandate to factor costs into the appropriate and necessary finding.
In a package of documents published on its website, EPA says that nothing in the air law mandates that it conduct a sweeping new analysis of the costs and benefits of regulating power plants with its maximum achievable control technology (MACT) air toxics rule. Instead, EPA finds it is still appropriate and necessary to regulate utilities with a MACT, based on analysis conducted for its original regulatory impact assessment for the rule.
But EPA's statement that it has deference on the scope of the cost review could prompt push-back from utilities that sued over the initial lack of a cost consideration in the agency's finding that regulating power plants with a MACT air toxics rule is “appropriate and necessary” under the Clean Air Act. The Supreme Court in June ruled 5-4 that EPA should have factored costs into that finding.
The justices in Michigan v. EPA then remanded litigation over the utility MACT back to the U.S. Court of Appeals for the District of Columbia Circuit. The court in White Stallion Energy Center v. EPA has been weighing an industry push to vacate the rule entirely and an opposing agency request to leave the rule in place. EPA argued that it could quickly conduct the cost review and therefore the court should not vacate the MACT entirely.
Shortly after EPA published the proposed cost consideration, fact sheet and a legal memorandum justifying its approach to the cost review, the D.C. Circuit issued a per curiam order scheduling oral argument for Dec. 4 on how to proceed with the MACT suit.
The proposed cost review and legal memorandum hint at some of the arguments that EPA might make at next month's argument, with the agency arguing it has discretion under the Clean Air Act on the specifics of how to conduct the cost review for the appropriate and necessary finding given the law's silence on the issue.
Cost Review
“The EPA interprets the statute to convey the Agency with discretion to identify the manner in which cost should be considered under [air law] section 112(n)(1)(A). In light of the statutory silence on how to consider cost or how to balance cost against other factors, the EPA has significant discretion to develop reasonable approaches to considering cost, taking into account the goals of the statute,” EPA says in the legal memorandum.
“EPA also concludes that a benefit-cost analysis is not required to support a finding that regulation is appropriate. However, to the extent a benefit-cost analysis is used to evaluate whether regulation of [hazardous air pollutant] emissions from [electrical generating units, or EGUs] is appropriate, it is reasonable for EPA to consider all benefits that would be a direct result of the rule,” according to the memorandum.
The agency bases its analysis of what is a reasonable cost for industry to bear on its original cost-benefit analysis conducted for the MACT rule itself, contained in a regulatory impact assessment (RIA), rather than conduct a fresh assessment of costs and benefits based on current conditions.
Because the 2011 rule -- also known as the mercury and air toxics standards (MATS) -- has been in effect for some time, both the costs and benefits of the regulation would be lower today than at the outset, as controls have been introduced and benefits realized, sources have said.
“The benefit-cost analysis in the RIA that accompanied the final MATS . . . presents a reasonable evaluation of the costs and benefit” of the final MACT rule, EPA says in the memorandum.
In a fact sheet to accompany the proposed rule, EPA says it “considered several different cost metrics to evaluate whether compliance” is reasonable for the power sector.
These are: annual compliance costs as a percentage of power sector sales, which the agency estimates at between 2.7% and 3.5% of annual electricity sales from 2000 to 2011; annual compliance capital expenditures compared to the power sector's annual capital expenditures, which EPA estimates at between 2.7% and 5.9% of total annual power sector capital expenditures over a 10-year period; impact on retail price of electricity, for which EPA estimates that electricity rates will increase by 3.1%; and impact on power sector resource capacity, for which EPA says, “Modeling indicated power plants would be able to absorb the anticipated compliance costs.”
MACT Requirements
“These analyses demonstrate that the costs and impacts of MATS requirements are reasonable as judged by affordability of compliance costs to the power sector and its consumers,” the agency adds in the fact sheet. EPA says that industry's compliance obligations under the rule will not change as a result of the supplemental finding.
EPA will take comment on the cost review for 45 days following its upcoming publication in the Federal Register, and the White House's website says the agency plans to issue a final version of the finding in May.
Acting EPA air chief Janet McCabe in a Nov. 20 blog post said the proposed supplemental finding weighs the industry's ability to comply and still maintain its primary function of electricity generation at “reasonable costs” to consumers. “These analyses demonstrate that the costs and impacts of MATS are reasonable and that the power sector can cut mercury and other toxics while continuing to provide all Americans with affordable, reliable electricity. And with MATS still in place today, the steps that many plants across the country have already taken to reduce toxic air emissions and comply with the final standards show that the standards really are achievable,” she wrote. McCabe says the cost finding addresses the ruling in Michigan and that it “does not alter our determination that it is appropriate to set standards for toxic air emissions from power plants.”
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OMB Completes Review Of EPA Utility MACT Cost Finding
Nov 20, 2015 | InsideEPA
The White House Office of Management & Budget (OMB) has completed its review of EPA's proposed notice on considering costs as part of its finding that its Clean Air Act utility air toxics rule was “appropriate and necessary,” which the agency has said will address a Supreme Court ruling faulting the lack of cost review.
EPA submitted the cost review to OMB on Oct. 21 and it completed review Nov. 19, clearing the way for the agency to meet its self-imposed goal of publishing it in the Federal Register next month.
The Supreme Court in a 5-4 decision in June in Michigan v. EPA faulted the agency for not considering costs in its initial finding that the utility maximum achievable control technology (MACT) air rule was appropriate and necessary, the standard used for justifying a utility air toxics regulation. EPA argued that it considered costs later in the process when it set the actual MACT standards, but the justices said it should have been part of the initial review.
Following the ruling, the high court remanded litigation over the MACT back to the U.S. Court of Appeals for the District of Columbia Circuit. Power industry critics of the rule have urged the court to vacate it, but EPA has countered that its imminent cost review will satisfy the high court ruling and that the rule should stay in place.
“The EPA will issue a notice that details how the Agency explicitly considered cost” as part of the appropriate and necessary finding, says OMB's website, which lists a May target for issuing a final cost review.
EPA has indicated in its briefings urging against a D.C. Circuit vacatur of the rule that its reworked finding will be issued expeditiously, drawing on the existing cost-benefit analysis that the agency drew up for the MACT rule first issued in 2011 that found the rule's health benefits far outweigh its costs.
However, industry groups and political conservatives have widely criticized EPA's existing cost-benefit analysis, because it relies on “co-benefits” of reducing fine particulate matter (PM2.5) to supply the overwhelming majority of monetized benefits. PM2.5 contains some air toxics but is not the explicit target of the MACT regulation, which targets mercury and other hazardous air pollutants. Without PM2.5 benefits, the costs in the existing analysis outweigh the benefits by an order of magnitude.
While Chief Justice John Roberts at oral arguments in the case questioned EPA's use of co-benefits to justify the rule, Justice Antonin Scalia in his opinion for the court did not prohibit the practice.
Nor did the high court address many other substantive issues related to the MACT that the D.C. Circuit had earlier considered when the lower court initially upheld the rule.
As a result, many legal observers consider the outcome of Michigan to be only a partial loss for EPA, as it affords EPA the opportunity to redraft its appropriate and necessary finding without altering the MACT itself.
Observers expect the revised cost-benefit analysis will likely find both lower costs and lower benefits from the rule, because to a large extent the rule has already been implemented, meaning that costs have been incurred and benefits realized.
In an October filing with the D.C. Circuit on EPA's behalf, the Department of Justice (DOJ) hinted that EPA's review will find lower costs than those it estimated when it did a cost review of the emissions standards in the original utility MACT. That prior cost estimate is already several years old and “likely overestimates compliance costs,” DOJ said.
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RGGI Eyes Phased Approach To Broad Multi-State Trading Under ESPS
Nov 20, 2015 | InsideEPA
By Abby Smith
State members of the Northeast's Regional Greenhouse Gas Initiative (RGGI) are considering a phased approach for expanding trading beyond the nine-state region as a means of complying with EPA's greenhouse gas rule for existing power plants, signaling that the program's excess emissions allowances may not be available -- at least initially -- to help other states comply with the rule.
During a Nov. 17 program review meeting in New York City, RGGI officials suggested they would name the program's current members as initial trading partners but include a pathway to a “trading ready” plan that would eventually allow emissions allowance transactions with states beyond the region.
“We are leaning toward [an] emissions standards [plan] with named trading partners in RGGI but with a pathway to trading ready or expanded trading partners,” Lois New, a New York regulator, told the Nov. 17 meeting.
The regulator's statement echoes language the RGGI states included in a memo prepared for the meeting which indicated a preference for “using an emissions standards approach . . . and discussing with stakeholders a potential pathway to trading ready.” The group also anticipates “using the mass goals for both existing and new sources as a pathway for compliance,” also known as the new source complement approach.
The approach that RGGI states favor appears likely to address concerns from environmentalists, who have already urged officials in California and the Northeast to withhold excess allowances under EPA's existing source performance standards (ESPS), saying that doing so would preserve the integrity of their existing emissions reduction programs.
Several environmentalists reiterated this point during the Nov. 17 RGGI meeting, noting that an expansion of RGGI's trading market could jeopardize the environmental integrity of the program by allowing more emissions into the RGGI region through the purchase of allowances from other states.
“A real way to lead is for RGGI states to continue to look at the program in its own right, to lead by continuing to reduce emissions, using RGGI to achieve statewide emissions reductions goals,” said Peter Shattuck of the environmental group Acadia Center, which is encouraging RGGI to adopt a stricter cap than its ESPS target.
But power industry representatives are strongly urging California and RGGI officials to expand their trading market to other states, though during the Nov. 17 meeting they noted that they may not be opposed to some restrictions on trading partners if not a total ban on trading with other states.
“We would want to see RGGI set up in a way that the trading is not limited to only RGGI states,” said Derek Furstenwerth of Calpine Corp., while adding that it “might make sense to have conditions on how trading partners would be” approved.
RGGI's preferred approach appears to make use of flexibilities EPA has provided in the final ESPS to allow inter-state trading as a means of compliance.
These options allow states to specify trading partners in their compliance plans, an approach that some have said could help avoid political opposition to trading programs, or to develop trading ready plans, which would include “common elements” permitting utilities to trade without direct state linkages or the need for formal EPA approval.
Competing Lobbying
While EPA is generally encouraging trading as a means of easing compliance and controlling costs, the issue is complicated for officials in RGGI states and California, where their existing programs are able to generate excess allowances.
Although that may allow them to more easily comply with their ESPS requirements, they face difficult decisions over whether to sell allowances that could provide significant revenue and ease other states' compliance options or whether to withhold excess allowances that can be used to ease local compliance and preserve their own programs' integrity.
The issue is further complicated for RGGI, as the states must set a new cap for the post-2020 period when their current cap expires to comply with ESPS' 2030 targets. If the RGGI states decide to adopt post-2020 targets that are significantly stricter than EPA's targets, it could limit the number of allowances available to other states, reducing both their compliance options and the RGGI states' revenue.
But if the states decide to set targets consistent with EPA's, it may signal limits on the RGGI states' future GHG reduction efforts, a prospect that is already drawing advocacy from environmentalists.
Already, state officials have faced competing lobbying from power sector groups and environmentalists over trading, with industry officials pressing states to adopt approaches that will allow trading while environmentalists have been seeking to limit trading.
RGGI's newly discussed approach could potentially address some of environmentalists' concerns, as it would allow other states' carbon markets to develop before they would engage in trade with RGGI states.
By including a pathway to trading ready rather than explicitly crafting a trading ready plan, RGGI could delay when it allows linkage with other markets.
'Nascent Markets'
During the Nov. 17 meeting, Jordan Stutt, also of the Acadia Center, cautioned RGGI state regulators to be aware of the effect of “trading with nascent markets on RGGI's environmental performance,” drawing comparison to the beginning of the RGGI market.
When the RGGI program was formed, Stutt said, there was an initial oversupply of allowances, which reduced the price signal sent to the market and thus limited the program's environmental impact. The RGGI states “addressed the problem by reducing the cap dramatically,” thus allowing for a consistent increase in allowance prices, Stutt said.
The concern is that other states would experience similar factors when creating new markets under the ESPS, and thus “RGGI would be undoing progress by linking with these new markets,” Stutt said, adding that the RGGI states should “take a wait and see approach until we see how those markets evolve.”
Regulators leading the meeting's stakeholder discussion seemed open to such a “wait and see” approach. New, the New York regulator, asked Stutt for further written comment on “how and when that expansion would occur” to open the RGGI market up to a broader trading market, as well as what criteria RGGI should be looking at to determine whether a market is developed enough that it would not negatively impact RGGI's environmental goals.
Still, other environmentalists warned against any trading ready approach, encouraging the RGGI states instead to explore more stringent reductions than required by the ESPS to better align with ambitious 2030 and 2050 emissions reduction targets that many of the participating states have set for themselves.
Eight of the nine RGGI participating states have 2030 emissions reductions goals of roughly 40 percent below 2005 levels and 2050 targets of roughly 80 percent below 2005 levels.
Josh Berman of the Sierra Club suggested an approach where RGGI would apply a similar bar as California, which requires any program trading into its market to have comparable emissions reductions goals. “If RGGI were to do something like that, would that provide incentive for other states to also go below the [ESPS] caps?” Berman said, questioning which approach -- limiting or expanding trading -- would yield the greatest overall reductions.
Industry Push-Back
Industry representatives, however, pushed back against the idea that limiting trading partners would jeopardize the overall environmental intent of the ESPS, or of the RGGI program, because all states have to comply with their own individual emissions caps.
“The idea that it breaks the program, I don't think that is accurate because the states that you trade with also would be complying” with the ESPS, said Calpine's Furstenwerth. For example, he added, if RGGI was to bring in an extra 5 million allowances from a state like Virginia, which has a less stringent emissions cap, that “doesn't mean that RGGI failed. It means the other state emitted 5 million less tons” of emissions. In addition, Furstenwerth noted that the original intent of RGGI was to encourage the establishment of a national cap-and-trade program. “It worked. This is the direction people are going,” he said, adding that RGGI would be “stepping over a big opportunity to say, 'Well, I don't want to trade with the other states who we encouraged to have trading programs.'”
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EPA Agenda Calls for More Climate Rules
Nov 23, 2015 | BNA Daily Environment Report
By Patrick Ambrosio, Andrew Childers, Rebecca Kern, Alan Kovski, Rachel Leven, Pat Rizzuto, Amena H. Saiyid, Renee Schoof and Pat Ware
The Environmental Protection Agency will follow up issuance of its first-ever greenhouse gas standards for power plants with an aggressive slate of climate change rules in 2016 targeting emissions from trucks, landfills and oil and gas wells, according to the agency's fall 2015 regulatory agenda, released Nov. 20.
The EPA in 2016 also plans to issue an endangerment finding on greenhouse gas emissions from aircraft, respond to the Supreme Court's ruling that found a legal deficiency in the agency's promulgation of mercury standards for power plants and revise its stormwater runoff regulations.
In addition to EPA action, the Interior Department is scheduled to issue a final regulation on stream protection and various regulations covering offshore oil and gas exploration wells.
The EPA in June is expected to issue its final endangerment finding (RIN 2060-AS31) for greenhouse gas emissions for aircraft, something aggressively sought by some environmental groups. Greenhouse gas emissions from aircraft account for about 3 percent of total U.S. emissions and represent the largest unregulated contribution from the transportation sector.
Making that finding would trigger a requirement for the EPA to regulate aircraft emissions under the Clean Air Act. The airline industry has urged the EPA to ensure that any standards it may issue follow international requirements to provide consistency (171 DEN A-4, 9/3/15).
In July, the EPA also anticipates finalizing the second phase of its greenhouse gas emissions limits for medium- and heavy-duty trucks (RIN 2060-AS16) in conjunction with updated corporate average fuel economy standards (RIN 2127-AL52) issued by the National Highway Traffic Safety Administration, which together could reduce carbon dioxide emissions by as much as 1 billion tons over the lives of regulated vehicles.
Environmental advocates have questioned the stringency of the proposed standards, which would cover model year 2021 through 2027 tractors and model year 2018 through 2027 trailers (193 DEN A-4, 10/6/15).
Methane Emissions to be Addressed
The EPA in June plans to update new source performance standards for new oil and natural gas wells to set the first-ever limits on methane emissions (RIN 2060-AS30; 160 DEN A-1, 8/19/15).
The agency in July also will issue final methane emissions limits for both new (RIN 2060-AM08) and existing (RIN 2060-AS23) solid waste landfills. The proposals would set the landfill gas control threshold from 50 metric tons of nonmethane organic compounds per year currently to 34 metric tons of nonmethane organic compounds for both active and new landfills (158 DEN A-6, 8/17/15).
The Obama administration also has pushed to limit emissions of hydrofluorocarbons, highly potent greenhouse gases that were intended to displace ozone-depleting substances.
The EPA in August is expected to issue a final rule (RIN 2060-AS51) that would update requirements under Section 608 of the Clean Air Act to bar the deliberate venting, release or disposal of HFCs or other non-ozone-depleting substitute refrigerants when servicing or disposing of air conditioning and refrigeration equipment (200 DEN A-4, 10/16/15).
EPA Readies Power Plan Guidance to States
The EPA in August expects to issue its final federal implementation plan (RIN 2060-AS47) for the Clean Power Plan, which sets carbon dioxide emissions limits on the fleet of existing power plants in each state.
State regulators are charged with developing their own compliance strategy, but the EPA would issue the federal plan for states that choose not to develop their own. The federal plan is expected to go final just before states are required to submit to the EPA their initial Clean Power Plan compliance strategy in September.
The EPA's federal plan focuses on emissions trading, proposing both a mass-based system that would impose a tonnage cap on carbon dioxide emissions from the power sector as well as a rate-based system that would limit the amount of carbon dioxide emissions produced per kilowatt-hour of electricity produced.
Though the EPA has said the final federal plan may include only one option, utilities at public hearings on the proposal have urged the agency to retain both (224 DEN A-9, 11/20/15).
Also in 2016, the EPA plans to address a U.S. Supreme Court decision that requires the agency to determine a de minimis threshold for its greenhouse gas permitting program, below which permits wouldn't be required. Though the regulatory agenda says the proposed rule is anticipated in March, the agency's regulatory tracker, updated Nov. 20, says the proposal isn't expected until October, a date confirmed by an agency spokeswoman.
Supreme Court Limited Scope of Program
The Supreme Court in 2014 limited the scope of the greenhouse gas permitting program to only those sources that trigger prevention of significant deterioration permitting requirements for emissions of conventional pollutants. As part of that decision, the court directed the EPA to consider a de minimis threshold as well (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014); 154 DEN A-1, 8/11/15).
The EPA is on track to soon establish long-awaited renewable fuel quotas under the agency's renewable fuel standard.
The agency is expected to issue a final rule (RIN 2060-AS22) by Nov. 30 that sets quotas for 2014, 2015 and 2016. That rule is currently under review at the White House Office of Management and Budget (224 DEN A-21, 11/20/15).
The agency also will attempt to get back on schedule with the RFS program for 2017. The regulatory agenda calls for the agency to propose (RIN 2060-AS72) annual volume requirements for renewable fuels for 2017 and biomass-based diesel for 2018 in June and issue final requirements by the end of 2016.
Addressing Cost in Regulating Mercury
The EPA also is set to address the U.S. Supreme Court's finding that the EPA was required to consider cost when it decided it was “appropriate and necessary” to regulate mercury emissions from power plants, a decision that triggered promulgation of the agency's mercury and air toxics standards (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 125 DEN A-1, 6/30/15).
The EPA Nov. 20 proposed to reaffirm that appropriate and necessary finding, which it said was not affected by the required cost consideration. The regulatory agenda calls for the EPA to complete that rulemaking (RIN 2060-AS76) by May. The EPA has pledged to complete the cost consideration process “as close to April 15, 2016,” as possible, the date by which power plants that received a one-year extension under the MATS rule must come into compliance.
The agency is scheduled in June to issue a final decision on the national ambient air quality standards for lead. The Clean Air Act requires the EPA to review those standards once every five years to determine if they are still protective of public health and welfare.
The EPA in December 2014 proposed to retain the current lead standards of 0.15 microgram per cubic meter (246 DEN A-1, 12/23/14).
EPA's Regional Consistency Rule Targeted
The EPA by April is scheduled to issue a final rule (RIN 2060-AS53) that would amend its regional consistency rules to establish an exception for federal court decisions under the Clean Air Act not issued by the U.S. Supreme Court or the U.S. Court of Appeals for the District of Columbia Circuit. The proposed version of the rule, released in August, would allow regional offices to implement local and regional court decisions, while other EPA regional offices wouldn't be required to do the same.
Various industry organizations representing the petroleum, chemical and power sectors have questioned whether the EPA has the authority under the Clean Air Act to create such an exception (218 DEN A-16, 11/12/15).
The EPA also plans to issue several major rules under the Clean Water Act over the next year. The regulatory agenda projects the agency will issue major rules in the summer and winter of 2016 that would retool reporting requirements for municipalities regulating stormwater runoff and regulate discharges of mercury in dental amalgam.
Stormwater Runoff Requirements
The EPA is on track to comply with a settlement to revise its stormwater runoff requirements for cities and suburbs with populations of fewer than 100,000 people and to determine whether runoff rules are readied for forest roads, according to the regulatory agenda.
Stormwater runoff is one of the most significant sources of water pollution in the nation, transporting suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, pesticides and other toxic contaminants into streams, rivers, lakes and estuaries, the EPA has said.
Under a settlement approved in September, the EPA must propose the revised stormwater runoff rules by Dec. 17 and issue a final rule by Nov. 17, 2016 (Envtl. Def. Ctr., Inc. v. EPA, 9th Cir., No. 14-80184, settlement approved 9/15/15; 180 DEN A-1, 9/17/15).
The EPA in June 2016 plans to issue the long-awaited final pretreatment rule (RIN 2040-AF26) regulating discharges of mercury in dental amalgam to wastewater treatment plants.
Rule Had Been Expected in Fall
Originally, the plan was to issue the rule this fall, but agency officials said the EPA needed time to address the comments concerning the inadvertent regulatory burden that has been placed on dental offices and the publicly owned treatment plants, which would be charged with enforcing the pretreatment standards at dental offices (94 DEN A-6, 5/15/15).
The pretreatment rule, which was proposed in October 2014, would apply to about 100,000 dentists across the country (79 Fed. Reg. 63,258).
The regulatory agenda also projects the EPA in October will issue a final rule (RIN 2040-AF52) that would clarify the process for tribes to obtain treatment in a similar manner as a state authority when listing impaired waters and developing total maximum daily load plans for their restoration under Section 303(d) of the Clean Water Act.
EPA Weighing Pollinator Data Rule
One new rulemaking included in the EPA regulatory agenda seeks to generate more data on the potential effects of pesticides on honey bees and other pollinators.
The White House in May announced a comprehensive pollinator strategy to address declines in pollinator populations, instructing more than a dozen federal agencies to take action to restore pollinator habitat, boost the number of Monarch butterflies that migrate to Mexico for the winter and reduce winter-time honeybee colony losses (97 DEN A-4, 5/20/15).
The EPA is now working on a rule (RIN 2070-AK10) that would require pesticide manufacturers to provide the agency with data to characterize the potential risks pesticides pose to pollinators. The agency said it is considering updating existing data requirements, requiring new types of data from companies, or both.
Rule to be Proposed by July
The agency plans to publish the proposed rule by July 2016 but did not include a projected date for issuing a final rule in its agenda.
The EPA also is on track to issue the first update to its pesticide applicator certification requirements since they were established in 1974. The agency projects the final rule (RIN 270-AJ20) will be issued by October 2016.
A proposed version of the rule, released in August, would prohibit anyone under the age of 18 from using the most highly toxic pesticides and set new training requirements for people who are certified to spray pesticides from aircraft (151 DEN A-9, 8/6/15).
Stream Protection Rule Set for Summer
The Interior Department is set to issue its final stream protection rule by August. A high-ranking Murray Energy Corp. official has described that rulemaking as “the single greatest threat” to the company.
Issuance of the stream protection rule (RIN 1029-AC63), which is intended to protect waterways from mining waste and activities, could end a seven-year battle that has been carried out everywhere from courts to Congress, but many have said the rule is likely to be litigated (177 DEN A-13, 9/14/15).
The Interior Department in January is projected to update regulations for blowout prevention and well control for offshore oil and gas exploration wells. The rule (RIN 1014-AA11) is being written by the Bureau of Safety and Environmental Enforcement (138 DEN A-2, 7/20/15).
A final rule to be completed in January will update regulations for safety systems and life-cycle analysis for offshore oil and gas production wells. The rule (RIN 1014-AA10) also is being written by the Bureau of Safety and Environmental Enforcement (104 DEN A-4, 6/1/15).
Arctic Offshore Waters to Be Addressed
A rule to be issued in final form in January will establish regulations for safety and environmental protection tailored specifically for Arctic offshore waters. The rule (RIN 1082-AA00) is being written jointly by the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement (117 DEN A-4, 6/18/15).
A rule to update companies' oil spill response plans with lessons learned from the 2010 Deepwater Horizon spill is set to be proposed by May by the Bureau of Ocean Energy Management (RIN 1014-AA23).
A rule will revise financial responsibility requirements for companies to provide assurance that they will cope with the costs of an oil spill. The Bureau of Ocean Energy Management is set to issue the rule by October (RIN 1010-AD86).
Mining Rules Scheduled for Release
The Environmental Protection Agency also expects to propose in August 2016 a rule on financial assurance requirements for hard rock mining operations and is at the beginning of potentially several financial assurance rules for a variety of other industries, such as the electric power industry.
The rule (RIN 2050-AG61), which will aim to ensure that mining companies pay to remediate environmental damages caused by their operations, has garnered public attention following an EPA-triggered spill at an abandoned mine of nearly 3 million gallons of toxic wastewater in Colorado (224 DEN A-23, 11/20/15).
The EPA also is planning to issue a proposed rule (RIN 2050-AG61) under the Comprehensive Environmental Response, Compensation and Liability Act on financial responsibility requirements for classes of facilities in the hard rock mining industry.
Under the Resource Conservation and Recovery Act, the EPA intends to propose (RIN 2050-AG80) a user fee schedule for the electronic hazardous waste manifest by September 2016. At an October hearing held by the House Energy and Commerce Subcommittee on Environment and the Economy, the agency said that rule is expected to reduce the paperwork burden on industry by up to $400 million (210 DEN A-6, 10/30/15).
Hazardous Waste From Pharmaceuticals
Also under RCRA, the EPA intends to finalize a rule on Management Standards for Hazardous Waste Pharmaceuticals (RIN 2040-AG39) by September 2016. In early November, the agency extended the comment period until Dec. 24 (214 DEN A-21, 11/5/15).
Under the Safe Drinking Water Act, the EPA intends to publish an advance notice of proposed rulemaking for the groundwater rule (RIN 2040-AF58) by June 2016.
The Energy Department's final rule on energy standards for large commercial air conditioning and heating equipment, projected to lead to the largest energy savings in history—11.9 quads of electricity over 30 years—is expected this December. Also, the agency expects to issue its final rule on energy standards for residential non-weatherized gas furnaces by April 2016, but an energy standard could be issued earlier if a stakeholder group reaches consensus earlier and the agency accepts the stakeholder recommendations (218 DEN A-14, 11/12/15).
NRC to Look at Low-Level Radioactive Waste
The Nuclear Regulatory Commission plans to issue a final rule in December that changes its regulations governing low-level radioactive waste disposal facilities to require new and revised site-specific analyses. The goal of the rulemaking is to ensure that low-level radioactive waste is disposed of safely since it differs from waste like uranium that is already addressed by current regulations(58 DEN A-17, 3/26/15).
The Pipeline and Hazardous Materials Safety Administration is expected to release its proposed gas transmission rule (RIN 2137-AE72) in December, according to the regulatory agenda. PHMSA also will begin its process of formally establishing a process for decertifying a pipeline safety program (RIN 2137-AF14), a process that isn't expected to be very controversial (166 DEN A-16, 8/27/15).
Additionally, PHMSA will offer in January 2016 its proposed rule on oil spill response plans and information sharing related to large shipments of crude oil or other flammable liquids by rail (RIN 2137-AF08), two issues that have garnered significant interest in Congress (222 DEN B-1, 11/18/15).
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EPA Proposes Fix To Air Pollution Rule After Supreme Court Loss
Nov 20, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) is trying to fix an air pollution rule that the Supreme Court said was improperly written.
The court decided in June that the EPA’s limits on mercury and other toxic air pollutants from coal-fired power plants were invalid because the agency did not consider costs before it decided to pursue the regulation.Now the EPA is seeking to administratively fix the problem by declaring that the regulation’s benefits are higher than its costs.
The EPA already conducted a cost-benefit analysis when it wrote the rule. With the newest proposal, the EPA wants to officially declare that it would have come to the same conclusion if it had done the analysis before it even undertook the regulatory process.
“With today’s proposal, we are addressing the Supreme Court’s decision: we have evaluated several relevant cost metrics, and we are proposing to find that taking consideration of cost into account does not alter our determination that is appropriate to set standards for toxic air emissions from power plants,” Janet McCabe, head of the EPA’s air pollution office, said in a blog post.
While the Supreme Court decided against the rule, it did not overturn it. With the Friday action, the EPA is trying to solve the problem the court identified.
Republicans, the coal industry and others cheered the June decision, saying it vindicated them by showing that the EPA regulates without considering costs.
The agency did consider costs, but the section of the Clean Air Act authorizing the mercury rule required that the EPA first determine that such a regulation is “necessary and appropriate,” a term that the justices said mandated a separate cost-benefit analysis.
The EPA’s regulatory agenda anticipates making the proposed change final by May.
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Inhofe Challenges Authority Of Obama's Climate Council
Nov 20, 2015 | E&E News PM
By Hannah Hess
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) today questioned the legal authority for the White House Council on Environmental Quality to continue to operate without a Senate-confirmed chairman.
In a letter to President Obama, Inhofe challenged the standing of former National Park Service official Christy Goldfuss, who in March replaced former CEQ Chief of Staff Mike Boots as managing director of the agency.
The Obama administration hasn't named a nominee to take over the Council on Environmental Quality since former Chairwoman Nancy Sutley stepped down in December 2013.
"Your reliance on lower-level staff to function as the Council indefinitely, without any apparent intention to nominate a Chairman, is contrary to your constitutional duty to ensure that the Vacancies Reform Act and [National Environmental Policy Act] are faithfully executed," Inhofe wrote.
Inhofe claims CEQ lacked the legal authority to issue several recent guidance documents on climate change, greenhouse gas emissions and sustainability, and asks Obama to formally withdraw those documents. He called any actions purporting to have been taken on behalf of CEQ during this vacancy "ultra vires."
From Goldfuss, the senator demanded internal operations manuals and delegations of authority, legal memoranda concerning the authority of the managing director, and calendar entries and other documents concerning CEQ's involvement in the upcoming international climate negotiations.
The letter seems to conflict with Inhofe's earlier views on CEQ. Asked about his delay in holding hearings or votes on Obama's nominations to U.S. EPA, Inhofe told Greenwire in March that he had other priorities. On CEQ in particular, Inhofe said, "I think I'm satisfied with an acting director in there because the unknown is always worse" (Greenwire, March 24).
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GOP Chairman Challenges Obama Environmental Panel
Nov 20, 2015 | The Hill - E2 Wire
By Devin Henry
Sen. James Inhofe (R-Okla.) is challenging the White House on the leadership of a key environmental advisory panel.
In two Friday letters to the Obama administration, the chairman of the Environment and Public Works Committee questioned whether the Council on Environmental Quality (CEQ) is allowed to continue operating; the Senate has not recently confirmed a full-time head for the panel. “It appears that no one currently has the legal authority to lead or act on behalf to the Council due to the extended vacancy of a Senate-confirmed chairman, and that certain actions take by CEQ officials during this vacancy period are not legally valid,” Inhofe wrote in a letter to President Obama.
The then-chairman of the CEQ, Nancy Sutley, resigned her position in February 2014, and the agency’s chief of staff, Michael Boots, took over as the CEQ’s acting chairman.
Boots himself resigned in March, and Christy Goldfuss took over as managing director.
In letters to Obama and Goldfuss, Inhofe said federal law only allows an acting CEQ director to serve in that capacity for 210 days, a term that ended on Sept. 21, 2014. He questioned the legality of the CEQ’s actions in the interim, and intends to probe the agency’s role in the upcoming United Nations climate conference.
The absence of a confirmed chairman, Inhofe wrote, “raises significant questions regarding whether the Council itself, or any official leading CEQ since Sept. 21, 2014, is operating in accordance with the law.”
Inhofe is one of the most vocal critics of the Obama administration’s climate change platform and environmental regulations.
For his CEQ inquiry, he requested documents relating to greenhouse gas emissions, internal operations manuals and “calendar entries and other documents concerning CEQ’s involvement in the upcoming international climate negotiations.”
The Council on Environmental Quality coordinates federal environmental policy and works with government agencies to implement it. Its director advises the president on environmental issues and initiatives.
A CEQ spokesperson said officials are reviewing the letter but disagree with Inhofe's suggestion that the Council is not operating legally.
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