Preview Newsletter
ACC AM Dec 31
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(ACC Mentioned) Congress Falling Short On Reforming Weak Rules On Perilous Toxics
Dec 30, 2015 | San Francisco Chronicle
When the chemical industry sings the praises of a reform bill intended to crack down on dangerous toxic substances, it’s time to worry. But that’s the case with a major bill on the verge of congressional approval that falls short of needed toughening of health and safety regulations on thousands of chemicals in everyday use. -
(ACC Mentioned) Even The Sustainable Packaging Coalition Isn't Buying Biodegradability
Dec 30, 2015 | Plastics Today
By Clare Goldsberry
Science appears to be taking the upper hand at the Sustainable Packaging Coalition (SPC). A paper, titled "The SPC Position Against Biodegradability Additives for Petroleum-Based Plastics," and an open forum webinar held on this topic on Dec. 16 are enlightening in this regard. It seems that SPC, which "takes a material-neutral... -
(ACC Mentioned) Obama Signs Bill Banning Microbeads In Personal Care Products
Dec 31, 2015 | The Hollywood Source
By Vernon Weaver
Cosmetics and pharmaceutical companies will no longer be able to use plastic "microbeads" in their products under legislation signed Monday by President Obama. Those will no longer be allowed to be manufactured beginning July 1, 2018, and their sale will be banned on July 1, 2019. -
No EPA Reports on Priority Testing List Issued Since 2014
Dec 31, 2015 | BNA Daily Environment Report
By Pat Rizzuto
An Environmental Protection Agency committee that has issued up to three reports annually since 1977 with recommendations about which chemicals need toxicity or other data to address potential health or environmental regulations has not issued a single report in more than a year. -
EPA Launches eDisclosure Portal, Provides Incentives for Self-Disclosure
Dec 30, 2015 | The National Law Review
The United States Environmental Protection Agency (EPA) took steps to modernize implementation of its audit[1] and small business compliance[2] policies when it launched a web-based “eDisclosure portal” on December 9, 2015[3], in order to receive and process self-disclosed violations. EPA developed the eDisclosure system to make it easier... -
Rail Industry Again Given More Time to Install Safety System
Dec 30, 2015 | The New York Times
By Ron Nixon
When Congress in October gave railroads extra time to install a badly needed speed-control system, officials at the Federal Railroad Administration vowed to move aggressively to make sure the safety technology would be in place by the end of 2018, the new deadline. -
Criminal Pipeline Claims OK in PG&E Suit: Court
Dec 31, 2015 | BNA Daily Environment Report
By Rachel Leven
A federal court won't dismiss nearly 30 alleged pipeline safety violations in a lawsuit against the owner and operator of a San Bruno, Calif., natural gas pipeline that ruptured and caught fire in 2010, resulting in eight fatalities (U.S. v. Pacific Gas & Electric Co., 2015 BL 423616, N.D. Cal., No. 14-cr-00175, 12/23/15). -
Interior Loses Bid to Speed Part of Fracking Case
Dec 31, 2015 | BNA Daily Environment Report
By Alan Kovski
A court case challenging federal regulation of hydraulic fracturing won't be subdivided to allow expedited action on the question of federal authority over fracking, a court has ruled (Wyoming v. Interior, D. Wyo., No. 2:15-cv-43, 12/29/15). The Dec. 29 ruling in Wyoming v. Interior also means the Interior Department, in defending itself... -
Court Backs Energy Company in Fracking Fluid Dispute
Dec 31, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
The Pennsylvania Supreme Court has sided with a Pittsburgh energy company in its dispute with state environmental regulators over the cleanup of leaked fracking fluid, reversing an earlier opinion by the Commonwealth Court and remanding the case for further proceedings (EQT Production Co. v. Pa. Dep't Envtl. Prot... -
EPA Seeks Input On Quantifying Oil & Gas Sector Voluntary Methane Cuts
Dec 30, 2015 | InsideEPA
By Bridget DiCosmo
EPA is seeking input on how companies taking part in its voluntary program to cut oil and gas sector methane levels should quantify reductions in the potent greenhouse gas (GHG), floating a method to quantify the methane cuts achieved across all facilities rather than using a "best management practices" option some industry groups prefer. -
Arctic Methane Emissions Persist in Winter
Dec 30, 2015 | Truth-Out
By Alex Kirby
The quantity of methane leaking from the frozen soil during the long Arctic winters is probably much greater than climate models estimate, scientists have found. They say at least half of annual methane emissions occur in the cold months from September to May, and that drier, upland tundra can emit more methane than wetlands. -
Few State Climate Bills Enacted in 2015
Dec 31, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
State legislatures were mostly quiet in 2015 when it came to enacting significant climate change bills, with the notable exception of California. Other states that did take action in 2015 rolled back efforts to curb greenhouse gas emissions or took steps to resist the Environmental Protection Agency's Clean Power Plan... -
Some States Eased Air Permit Burdens in 2015
Dec 31, 2015 | BNA Daily Environment Report
By Andrew M. Ballard
Some state legislatures in 2015 took action to streamline permitting requirements for the oil and gas industry and other industrial sources during a year of sparse activity on air pollution. New laws in Illinois and Wyoming eased air pollution permitting requirements while North Carolina reduced the required number of air pollution monitors to ... -
Sierra Club Sues EPA Over Missing Sulfur Dioxide Plans
Dec 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Sierra Club is seeking a court order that would require the Environmental Protection Agency to issue formal findings that 13 states have failed to submit plans on how they intend to bring Detroit, Indianapolis and other areas into attainment with the 2010 sulfur dioxide standard (Sierra Club v. McCarthy, D.D.C., No. 1:15-cv-2264, 12/29/15). -
DOE Finalizes Residential Boiler Efficiency Standards
Dec 31, 2015 | BNA Daily Environment Report
The Energy Department issued a final rule increasing the energy efficiency standards for residential boilers, according to a Dec. 30 Federal Register pre-publication notice. The final rule establishes new minimum annual fuel utilization efficiency (AFUE) standards for the following residential boilers: gas-fired hot water boilers...
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(ACC Mentioned) Congress Falling Short On Reforming Weak Rules On Perilous Toxics
Dec 30, 2015 | San Francisco Chronicle
When the chemical industry sings the praises of a reform bill intended to crack down on dangerous toxic substances, it’s time to worry. But that’s the case with a major bill on the verge of congressional approval that falls short of needed toughening of health and safety regulations on thousands of chemicals in everyday use.
An overhaul is badly needed since weak federal laws are 40 years old and thousands of chemicals and industrial ingredients reach the public with little or no objective testing. The vetting process is so balky that asbestos lingered on the market for years after its dangers were well-known.
Comprehensive laws are clearly in order. After two years of debate and dickering, an update of the Toxic Substances Control Act won a unanimous voice vote approval in the Senate. A differing version of the changes was passed by the House earlier.
That political resolve sounds appealing in fixing a bad situation. The Senate bill provides a new approach: The Environmental Protection Agency will make health a top priority, with industry costs for compliance secondary. A timetable will be set to check the safety of chemicals now in circulation. Revenue for testing an ocean of substances in factories, homes and offices will be guaranteed.
The measure drew broad support in the Senate, notable in dysfunctional Washington where the EPA is the scourge of Republican lawmakers. The bill’s drawn warm words from the American Chemistry Council as a “watershed moment’’ and the National Association of Chemical Distributors, which said passage will “build confidence’’ in the regulatory system.
Snuggling up to regulators is not what industry groups normally do, especially when fresh regulations and added costs are on the line. But the reasons aren’t hard to fathom in this case.
Chemical makers are worried about states cracking down in the absence of genuine federal rules. That’s what California has done at the ballot box such as Proposition 65 in 1986, which forced companies to make safer products and warned consumers of health dangers — and in legislative votes to ban harmful chemicals in baby bottles.
Adding a dose of federal oversight puts off states impatient with Washington inaction. Under the bill, once the EPA has marked a chemical for study, a state is barred from moving more quickly to regulate it on its own, said Nancy Buermeyer, senior policy strategist with the Breast Cancer Fund.
The proposed changes add the false note of a comprehensive crackdown on government neglect in a way that leads the public to think a significant trouble spot is fixed, she said.
Though some environmental groups are going along with the bill, her group and others are not. The reasons for doubt include the still slow pace of chemical testing, concerns about screening imported goods containing unexamined substances, and the harm to stricter state-level health and safety rules.
Sen. Barbara Boxer, D-Calif., tried to stop the bill’s progress in her chamber. She’s the ranking member on the Senate Environment and Public Works Committee and a longtime advocate for meaningful toxic substance reform. She had pushed a genuine reform of federal laws only to have a weaker imitation taken up by the Senate.
In this case, the best hope may lie in resolving the differences between the House and Senate bills. Boxer won a promise that she would be included in the talks to produce a final bill. The outcome of those talks, expected in the next few months, will show how serious Washington lawmakers are in protecting the public from toxic dangers.
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(ACC Mentioned) Even The Sustainable Packaging Coalition Isn't Buying Biodegradability
Dec 30, 2015 | Plastics Today
By Clare Goldsberry
Science appears to be taking the upper hand at the Sustainable Packaging Coalition (SPC). A paper, titled "The SPC Position Against Biodegradability Additives for Petroleum-Based Plastics," and an open forum webinar held on this topic on Dec. 16 are enlightening in this regard. It seems that SPC, which "takes a material-neutral, lifecycle-oriented approach to packaging sustainability with a goal of enabling and encouraging a more sustainable economy for all materials," has found in its studies—and concluded—that the use of "biodegradability additives for conventional petroleum-based plastics . . . do not offer any sustainability advantage and may actually result in more environmental harm. These additives should not be used," says SPC.
The formal position paper against the use of biodegradability additives in plastics explains that one of the problems is that the term biodegradability "suggests that nutrients will beneficially return to the environment at the material's end of life." Yet it is actually compostability that is the "superior and preferred indicator of a material's ability to result in nutrient renewal and reuse." Compostability is defined as a "material's ability to successfully undergo a managed process that controls biological decomposition and transformation into a stabilized organic matter within a specified period time."
Compostability, in other words, is a controlled (manmade or managed) process. "The characteristic of biodegradability in itself does not mean that the material will break down in a reasonable, useful amount of time, nor that it will result in any soil-enriching biomaterial." The term biodegradable is misleading, says the SPC position paper, because it causes consumers to assume that the plastic materials labeled as such will break down into useful bio-nutrients into the soil or water. "Petroleum-based plastics made with the currently available biodegradability additives do not break down in such a manner; to date, these additives have not enabled any plastics to become fully compostable," said SPC.
SPC stated that a major problem with biodegradability is its negative impact on recyclability, an optimum end-of-life scenario for petroleum-based plastics due to two inherent attributes that make recovery ideal: "Their high embodied energy content qualifies their value for controlled energy recovery, and their exceptional durability renders them ideal for recycling." Biodegradability additives, "by design, are intended to compromise that exceptional durability," and to date there is no "satisfactory evidence" that plastics with biodegradable additives will not interfere with the recycling stream. Additionally, says the SPC position paper, "petroleum-based plastics . . . are not bio-based, and the addition of biodegradability additives does not change that characteristic."
Another problem that SPC notes in its position paper is that most additives are "designed to fragment petroleum-based plastics into small pieces in order to make it sufficiently available to the microorganisms that perform biodegradation." While these micro pieces of plastic cannot be seen by the human eye, they contribute to the "environmental impact of micro-pollution." Hence, there is a problem with marketing biodegradable additives as being "less detrimental to the environment" because they may contribute to improper end-of-life disposal and pollution.
People love plastic for its usefulness and longevity; they just want it to disappear when they are done with it. SPC referenced a 2006 study by the American Chemistry Council, which concluded that "when a consumer sees the word ‘biodegradable' on a package, about 80% of consumers believe that the package will completely decompose, regardless of the environment in which the package is disposed."
In other words, people want "magic" plastic that disappears!
That is why in 2008 the state of California banned use of the terms "degradable," "biodegradable," "compostable" and similar verbiage on plastic products, determining that they are "inherently misleading. Given the complex nature of biodegradation . . . and given the intrinsic constraints of marketing claims, including the space on the plastic product, there is no reasonable ability for plastic product manufacturers to provide an adequate disclaimer. . . . Given these and other constraints, and the significant environmental harm that is caused by plastic litter, the use of these terms must be prohibited unless, or until, is established an American Society for Testing and Materials (ASTM) standard specification for the term claimed that has been approved by the legislature," says the California statute. Currently, ASTM D6400 is the standard for biobased plastics.
Oxo-degradable additives have become a popular method to promote biodegradability in plastics in a marine environment. However, studies conducted by the Chico Research Foundation at California State University "have shown that plastics with oxo-degradable additives did not successfully biodegrade in marine environments." Like other biodegradability additives, oxo-degradable additives create "fragmentation" that gives the "appearance" that the plastic has disappeared. However, oxo-degradable additives typically used in plastic bags, do not make the bags compostable, but rather degrade by oxidation. However, there are some claims that oxo-degradable additives are more dangerous to the environment due to the fact that they consist of "salts of transition metals such as iron, cobalt and manganese," leaving traces of these metals in the soil as the oxo-degradable plastics fragment.
A report released by the Pacific Northwest Pollution Prevention Resource Center in Portland, OR, noted that while oxo-degradable plastic manufacturers "claim the material is recyclable and compostable, and degradable in landfill," studies show that "these bags are not compatible with recycling or composting."
Of course those companies who have invested millions of dollars in manufacturing biodegradable additives will argue that biodegradable additives are optimal, while the oxo makers will claim their products make plastics more eco-friendly. It all depends in which basket they've put their eggs. Private companies need to make a good return on their investment, so their sympathies lie with their money.
At this point, we can read all the arguments for and against the various means and methods of getting rid of plastic at the end of its useful life. After all is said and done, however, what we need to do is to look at what solution provides the greatest value and the best return on investment for that solution. We have to look at the input required to recycle, compost, degrade and produce waste-to-energy, and the resulting output in terms of value—both monetary and environmental.
Ultimately there is no single magic bullet that can make plastic disappear. And I don't think that most people want plastics to disappear. What we'd like to see disappear is the litter in our communities and in the world's waterways. And that's not a plastics problem—that's a people problem. An additive that makes plastic litter "degrade" to fragments in 180 days is not exactly what I'd call a solution.
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(ACC Mentioned) Obama Signs Bill Banning Microbeads In Personal Care Products
Dec 31, 2015 | The Hollywood Source
By Vernon Weaver
Cosmetics and pharmaceutical companies will no longer be able to use plastic "microbeads" in their products under legislation signed Monday by President Obama. Those will no longer be allowed to be manufactured beginning July 1, 2018, and their sale will be banned on July 1, 2019.
The problem comes in when the tiny plastic beads - made with polypropylene and polyethylene - are rinsed off; they flow right down the drain and out into the waterways.
Directly on the heels of Obama's signing of the bill, the American Chemistry Council (ACC) signaled its support of the new Act. Microbeads are those tiny, sometimes colorful beads - about the size of a pinhead - found infused throughout toothpaste, facial soaps and shampoo, among other products.
Thankfully, the beads can no longer pollute our precious waters. When these beads run into our lakes, rivers, streams, and seas, they can cause incredible environmental damage. In waterways, fish and other wildlife mistake the tiny scraps of plastic for food. Because they're so small, microbeads don't get filtered out by wastewater treatment plants.
Thousands of aquatic creatures - from large fish to tiny plankton - eat these harmful beads potentially covered in toxins. "The Great Lakes have survived many a foe - severe pollution, oil spills, discharge from refineries, zebra mussels and attempts to steal our water, just to name a few", said Upton, a Republican. "Because natural alternatives already exist, a ban on their use in personal care products makes ideal sense". Here's a handy list of products that don't contain plastic microbeads to help you out.
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No EPA Reports on Priority Testing List Issued Since 2014
Dec 31, 2015 | BNA Daily Environment Report
By Pat Rizzuto
An Environmental Protection Agency committee that has issued up to three reports annually since 1977 with recommendations about which chemicals need toxicity or other data to address potential health or environmental regulations has not issued a single report in more than a year.
The EPA's Interagency Testing Committee has continued to meet every six months but has not recommended any changes to the agency's Priority Testing List, the EPA told Bloomberg BNA by e-mail.
A federal agency's silence or lack of action is not frequently news, but it's a marked shift for the Interagency Testing Committee.
73 Reports Issued Since 1977
Since it was established in 1977, the ITC has issued 73 reports, typically two reports each year. Its last report was in January 2014. The reports and the independent advisory committee itself are required under Section 4(e) of the Toxic Substances Control Act.
The law also requires the EPA to publish in the Federal Register a response to the testing committee's recommendations.
Agencies serving on ITC include the Council on Environmental Quality, Department of Commerce, National Cancer Institute, National Institute of Environmental Health Sciences, National Institute for Occupational Safety and Health, National Science Foundation, Occupational Safety and Health Administration, Agency for Toxic Substances and Disease Registry, Consumer Product Safety Commission, Department of Defense, Department of the Interior and Food and Drug Administration.
One of the committee's purposes is to provide agencies, such as NIOSH, OSHA and the Consumer Product Safety Committee, a way to voice their needs. These agencies need chemical data for their decisions but do not have statutory authority to obtain it.
The committee's reports recommend the EPA add or remove chemicals from the agency's Priority Testing List.
Spurred Data Collection Rules
The agency often has issued data collection rules—authorized under Section 8 of TSCA—after it adds a chemical to the Priority Testing List. Manufacturers subject to data-collection rules must provide the agency certain information they already have, but they do not have to pay for the generation of new health or safety data.
In a few cases, the issuance of the data-collection rules spurred the agency to propose Section 4 test rules. If issued as final, such rules require chemical manufacturers to conduct and pay for specific tests to fill particular data gaps. The agency has issued a few Section 4 test rules after shifting through the data collected through Section 8 rules or it has negotiated enforceable testing agreements with chemical manufacturers to obtain such data.
Bloomberg BNA asked the EPA three times whether the lack of ITC reports stemmed from any type of restructuring of the committee's mission or how it works.
The EPA e-mailed this response: “We have not taken any steps to change the ITC's mission or approach.”
Both the House and the Senate bills that would update TSCA—H.R. 2576 and S. 697—would retain the ITC either under that name or through a committee with the same purpose. On Dec. 17, the Senate in a voice vote passed a bill to modernize TSCA (243 DEN A-1, 12/18/15).
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EPA Launches eDisclosure Portal, Provides Incentives for Self-Disclosure
Dec 30, 2015 | The National Law Review
The United States Environmental Protection Agency (EPA) took steps to modernize implementation of its audit[1] and small business compliance[2] policies when it launched a web-based “eDisclosure portal” on December 9, 2015[3], in order to receive and process self-disclosed violations. EPA developed the eDisclosure system to make it easier for members of the regulated community to disclose violations to EPA and for EPA to process those disclosures.
EPA’s Audit and Small Business Compliance Policies provide incentives for regulated entities to self-disclose environmental violations in an effort to attain compliance. These incentives include significant penalty reductions, non-pursuit of criminal prosecution, protection of underlying audit documents and exemption from routine audit report requests. EPA retains its discretion to collect any economic benefit that may have been realized by the violating party because of its noncompliance with applicable rules and regulations.
Eligibility for these mitigation measures is based on the following conditions. The disclosing entity must:
Discover the violation through a voluntary, independent and systemically conducted audit;
Disclose the violation within 21 days of discovery;
Correct and remediate the violation within 60 days of discovery;
Cooperate with EPA; and
Take measures to prevent the violation from recurring.
EPA’s policies do not allow these incentives for certain, serious violations that involve actual harm or imminent and substantial endangerment, or violations that have been repeated at the same facility in the past three years or at multiple facilities owned or operated by the same entity in the past five years.
To submit an electronic self-disclosure, entities must register with EPA’s Central Data Exchange (CDX) system at cdx.epa.gov. Consultants, attorneys and other agents will be allowed to disclose violations through the eDisclosure portal on behalf of a regulated entity. EPA has not designed the eDisclosure system to manage Confidential Business Information (CBI). Any disclosures submitted through the eDisclosure system must be scrubbed of CBI before submission, and any CBI that is a necessary component of the disclosure must be submitted according to EPA procedures and requirements in 40 C.F.R. Part 2.
Disclosures are grouped into two categories, Tier 1 and Tier 2. Tier 1 disclosures include certain Emergency Planning and Community Right-to-Know Act (EPCRA) violations that meet all Audit Policy or Small Business Compliance Policy conditions[4]. The eDisclosure portal will automatically issue an electronic Notice of Determination for Tier 1 disclosures, confirming that the violations are resolved with no civil penalties, conditioned upon the accuracy and completeness of disclosure. EPA will “spot check” Tier 1 disclosures and most will receive fast-track processing with little to no review from EPA.
Tier 2 disclosures will include all non-EPCRA violations, EPCRA violations with respect to which the regulated entity cannot meet the Audit Policy’s “systematic discovery” condition but can meet its other conditions and EPCRA/CERCLA violations excluded from Tier 1. For Tier 2 disclosures, the eDisclosure portal will automatically issue an electronic acknowledgment letter confirming receipt of the disclosure and stating that EPA will make a determination regarding penalty mitigation if it decides to take enforcement action.
Although EPA has designed the eDisclosure portal to handle disclosures for violations that arise outside the context of upfront audit agreements with EPA, EPA has indicated that it is willing to continue negotiating such agreements in some situations. For violations that fall into Tier 2, an upfront audit agreement may provide more certainty in terms of penalty mitigation as compared to the new process disclosures under the eDisclosure portal. - See more at: http://www.natlawreview.com/article/epa-launches-edisclosure-portal-provides-incentives-self-disclosure#sthash.6CNwD8Vd.dpuf
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Rail Industry Again Given More Time to Install Safety System
Dec 30, 2015 | The New York Times
By Ron Nixon
When Congress in October gave railroads extra time to install a badly needed speed-control system, officials at the Federal Railroad Administration vowed to move aggressively to make sure the safety technology would be in place by the end of 2018, the new deadline.
This month, Congress struck again. Tucked into a 1,000-page transportation law signed Dec. 4 is new language that could effectively extend the deadline until the end of 2020. And positive train control, a technology that safety advocates say could have prevented the deadly Amtrak crash in Philadelphia in May, could stay on the shelf even longer.
“This five-year extension of lifesaving technology is way too long, with way too little guarantee that P.T.C. implementation will get done,” Senator Richard Blumenthal, Democrat of Connecticut, said in a statement. Mr. Blumenthal has long been critical of an extension for railroads to install the safety technology.
The new delay is the latest pull in a tug of war between the railroad industry and federal regulators over the safety system. A firm deadline for installing it on all freight and commuter trains by 2015 was originally set under a law passed in the aftermath of a 2008 commuter rail crash in California that killed 25 and injured 135.
But as the Dec. 31 deadline approached, the industry appealed to Congress, saying it needed an extension because the technology, which tracks the speed and movements of trains and can prevent collisions, was difficult to install. Without a reprieve, the railroads said, the nation’s rail system would have to shut down.
The Obama administration acquiesced, but in public statements and in letters just after the reprieve passed, Sarah Feinberg, the railroad agency’s administrator, told industry leaders that she expected them to meet deadlines and requirements for installing the safety system by the new deadline or face civil penalties starting at $5,000 a day.
Barely a month later, Congress said that Ms. Feinberg had misinterpreted the lawmakers’ intent. Language in this month’s five-year transportation law essentially gave the rail industry what critics called a blanket extension — until the end of 2020 — to fully install the technology.
The National Transportation Safety Board says positive train control is the best way to prevent deadly train accidents. It says the technology could have prevented 145 of the rail accidents it has investigated since 1969; those accidents killed 288 people and injured 6,574.
Efforts to have the technology installed on train tracks have dragged on because of bureaucratic hurdles and technical challenges. A Government Accountability Office report released in September said that several problems had contributed to delays, including the newness of the technology and its limited supply.
The report said the government had also added to the delays. For example, railroads had to stop construction of radio poles, which relay the GPS signals, along tracks because environmental approvals were delayed by bureaucracy or understaffing.
After lobbying from freight and commuter rail companies, lawmakers had considered giving railroads a five-year extension, but those efforts were roundly criticized after the Amtrak crash in Philadelphia, which killed eight and injured more than 200.Under the initial bill signed by President Obama in October, railroads were given until December 31, 2018, to install positive train control, with the option of requesting two additional years to work on the installation and testing. But that extension would be available only if the railroads submit plans for doing the work by Dec. 31, 2018. Each request would have to be approved individually by the secretary of transportation.
Officials at the Federal Railroad Administration feared that some railroads might wait until the last minute and submit plans requesting the additional two years, essentially taking five years to complete the work without ever trying to do it in three.
So Ms. Feinberg told rail executives not to bother submitting plans asking for extensions if they had not shown that they were making progress on the required schedule.
Each revised implementation plan “should reflect the new December 31, 2018, deadline for all elements” to implement positive train control, Ms. Feinberg wrote in a Nov. 19 letter.
Congress was having none of it.
“This bipartisan provision clarifies what Congress explicitly stated in the signed-into-law October legislation extending the P.T.C. deadline,” said Fredrick Hill, a spokesman for the Senate Commerce Committee. “This clarification was necessary to prevent a misinterpretation.”
Federal railroad regulators declined to comment, but some lawmakers from the Northeast said the language in the transportation bill made the 2018 deadline a sham.
The American Association of Railroads, the industry group for freight carriers, declined to discuss the specifics of the language in the transportation bill and said it had no role in requesting the provision.
“The freight rail industry’s focus is to get P.T.C. installed and implemented as quickly as possible,” the association said in a statement.
Amtrak announced last week that all of the tracks it owns between Washington and New York have the positive train control system installed and working.
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Criminal Pipeline Claims OK in PG&E Suit: Court
Dec 31, 2015 | BNA Daily Environment Report
By Rachel Leven
A federal court won't dismiss nearly 30 alleged pipeline safety violations in a lawsuit against the owner and operator of a San Bruno, Calif., natural gas pipeline that ruptured and caught fire in 2010, resulting in eight fatalities (U.S. v. Pacific Gas & Electric Co., 2015 BL 423616, N.D. Cal., No. 14-cr-00175, 12/23/15).
The U.S. District Court for the Northern District of California Dec. 23 denied Pacific Gas and Electric Co.'s motion to dismiss the 27 claims, a motion where PG&E argued that because the state of California was certified by the federal government as the direct regulator of its intrastate pipelines, including the at-issue line, there was no federal offense. The court disagreed, saying that the Pipeline Safety Act doesn't block the U.S. from prosecuting criminal cases.
“The court … concludes that in effect, while the Pipeline Safety Act's ‘federal [regulatory] scheme is supplanted by [certified] state ones … the federal proscription against [violation of the Pipeline Safety Act] remains, as does the federal penalty for it,' ” the court said, citing a 2001 ruling by the U.S. Court of Appeals for the Ninth Circuit (U.S. v. Elias, 269 F.3d 100353 ERC 1342 (9th Cir. 2001) ).
The district court said the plain language reading of 49 U.S.C. Section 60105 that authorizes the federal government to delegate states regulating authority, the legislative history of the pipeline safety law and circuit court precedent indicate that the attorney general retains the authority to prosecute criminal violations of its law. The rule of lenity also wouldn't apply because there was no ambiguity in the law, the court said.
Background of Case
The case centers on the rupture of and subsequent fire caused by the PG&E pipeline in September 2010, which resulted in eight deaths, injured 58 people, destroyed 38 homes and damaged an additional 70 homes. The suit by the federal government alleges “knowing and willful” criminal violations of minimum federal safety requirements for moving natural gas by pipeline under 49 U.S.C. Section 60123 (148 DEN A-11, 8/1/14).
The court issued a number of orders Dec. 23 further defining the scope of the case.
Notably, the court declined to dismiss a claim that alleges PG&E obstructed a National Transportation Safety Board investigation and therefore obstructed a federal proceeding. While PG&E alleged the investigation doesn't constitute a federal proceeding and therefore the count should be dismissed, the court disagreed.
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Interior Loses Bid to Speed Part of Fracking Case
Dec 31, 2015 | BNA Daily Environment Report
By Alan Kovski
A court case challenging federal regulation of hydraulic fracturing won't be subdivided to allow expedited action on the question of federal authority over fracking, a court has ruled (Wyoming v. Interior, D. Wyo., No. 2:15-cv-43, 12/29/15).
The Dec. 29 ruling in Wyoming v. Interior also means the Interior Department, in defending itself, won't be able to make a quick appeal on the issue of its legal authority to regulate fracking on federal and Indian lands.
The decision forces Interior to accept the slower pace of a more complicated case encompassing not only the department's legal authority but the other merits of petitioners' claims in the U.S. District Court for the District of Wyoming.
Four states led by Wyoming challenged Interior's legal authority, while two industry associations said the regulations are arbitrary and capricious in their impractical and unjustified requirements.
The Bureau of Land Management published the regulations March 26 (80 Fed. Reg. 16,128).
The court in Wyoming issued a preliminary injunction against the regulations Sept. 30 (190 DEN A-8, 10/1/15).
No Bifurcation, No Quick Appeal
Nine months after issuing the rule containing the regulations, Interior still hasn't provided the court with a full administrative record on the rulemaking. That was a factor in the decision Dec. 29.
The federal defendants argued the court's preliminary injunction, based on an assessment that Interior lacked authority for the rulemaking, “is dispositive of the case and is a purely legal matter that requires no examination of the administrative record,” the court said.
“However, the court is not prepared to assume the administrative record is entirely irrelevant to the issue of whether the BLM has been granted the authority to regulate hydraulic fracturing,” the court said.
Separation of that issue from other merits issues would require entry of final judgment on that issue, under Rule 54(b) of the Federal Rules of Civil Procedure. The federal defendants would then have the opportunity to appeal the final judgment before the other merits of the case are settled.
The ruling by Judge Scott Skavdahl against bifurcating the case eliminated the possibility of such a quicker appeal.
“The court finds no justification to proceed in a piecemeal fashion,” he wrote.
Waiting for Record
The judge expressed some dissatisfaction with Interior's slowness in providing an administrative record on the rule (RIN 1004-AE26).
“The delay in completion of the administrative record is largely a problem of respondents' own making,” he wrote.
“After receiving two extensions of the deadline for lodging the administrative record, respondents lodged an incomplete record on August 27, 2015. The most efficient way to resolve this case is to have the BLM finally lodge a complete administrative record which will trigger the briefing schedule,” the judge wrote.
Wyoming is joined by Colorado, North Dakota, Utah and the Ute Indian Tribe in its legal action against the fracking rule. Two oil and gas groups, the Independent Petroleum Association of America and the Western Energy Alliance, separately sued, after which their case was consolidated with Wyoming v. Interior.
Consolidation Seen as Part of Problem
The consolidation of the cases is part of the problem for speedy action. The two associations described many technical elements of the regulations as impractical and also made the basic argument that there was no environmental benefit to provide legal justification for regulatory action (97 DEN A-2, 5/20/15).
Hydraulic fracturing is a common process for stimulating oil or natural gas flow by creating subsurface fractures as flow paths. Critics have argued that it can and does cause pollution, but industry officials have said the cited instances of pollution typically are caused by mistakes in other aspects of the work, such as failure to cement a well properly, and not by fracking.
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Court Backs Energy Company in Fracking Fluid Dispute
Dec 31, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
The Pennsylvania Supreme Court has sided with a Pittsburgh energy company in its dispute with state environmental regulators over the cleanup of leaked fracking fluid, reversing an earlier opinion by the Commonwealth Court and remanding the case for further proceedings (EQT Production Co. v. Pa. Dep't Envtl. Prot., Pa. Supreme Court, No. 15 MAP 2015, judgment entered, 12/29/15).
“Upon consideration, we deem this case to present a sufficient, actual controversy and to fall within the class of disputes that are a proper subject of pre-enforcement judicial review,” the Dec. 29 opinion said.
The ruling allows EQT Corp., a Pittsburgh-based energy company that operates natural gas wells in Pennsylvania, to proceed in its case against the Pennsylvania Department of Environmental Protection (DEP) over penalties assessed for an impoundment leak in Tioga County in 2012, the company said in a statement Dec. 29.
According to the opinion, the company told the DEP in May 2012 that it had discovered leaks in an underground impoundment storing contaminated water from hydraulic fracturing operations. The company cleared the site and began a formal cleanup process, the opinion said.
In May 2014, the DEP said that the discharge of contaminated water triggered civil penalties under the Clean Streams Law and assessed the company a $1.27 million civil penalty, $900,000 of which represented ongoing violations. The ongoing penalties were assessed because the DEP argued that each day the contaminants remained in the ground constituted a violation of the Clean Streams Law.
EQT disputed DEP's interpretation of the Clean Streams Law and asked for judicial review.
Energy Company Disputes Reading of Law
In its appeal of the penalty, EQT said the DEP's reading of the Clean Streams Law was “unlawful and unprecedented” and that it forced the company to spend “significant additional money to clean up the site, well beyond what is legally required,” the opinion said.
In a statement released Dec. 29, EQT General Counsel Lewis B. Gardner said the company was pleased with the court's ruling, and “we look forward to a hearing before the Commonwealth Court on the PADEP's erroneous legal interpretation of the Clean Streams Law.”
The DEP told Bloomberg BNA Dec. 30 that it had no comment on the matter because it involved ongoing litigation.
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EPA Seeks Input On Quantifying Oil & Gas Sector Voluntary Methane Cuts
Dec 30, 2015 | InsideEPA
By Bridget DiCosmo
EPA is seeking input on how companies taking part in its voluntary program to cut oil and gas sector methane levels should quantify reductions in the potent greenhouse gas (GHG), floating a method to quantify the methane cuts achieved across all facilities rather than using a "best management practices" option some industry groups prefer.
In a recent document, EPA is floating for stakeholder feedback some of the details of its "One Future" option for quantifying emissions under its pending "Methane Challenge" voluntary program. Details that the agency is seeking feedback on include the industry segments in which methane emissions would be quantified, the methods for quantifying those emissions, and the corresponding data elements to be reported by drilling operations.
EPA is proposing to use its existing Clean Air Act GHG reporting program (GHGRP) methods for quantifying emissions for sources already covered by its GHG reporting requirements for the oil and natural gas sector, and separate GHG inventory methodology for sources not included in the reporting program.
For example, the volume of oil and gas vented or flared from production wells would be quantified using GHGRP methods, whereas for pipeline blowdowns in the distribution sector, companies would use the GHG inventory method.
EPA has said it is trying to boost flexibility for companies that take part in the program, in part by ensuring the plan will not duplicate pending methane rules for the sector or GHG reporting requirements.
The proposed Methane Challenge is intended as a partnership between EPA and industry, setting best practices for facilities to cut emissions of methane. As a result, many in industry have urged EPA to allow participation in the voluntary program as an alternative to strict new source performance standards that the agency is in the process of finalizing for the sector that would set a first-time limit on methane emissions.
Reducing Emissions
Methane Challenge builds on EPA's existing Gas Star Gold program, as part of a package to cut the sector's methane emissions to meet President Obama's goal of reducing 40-45 percent of the sector's methane by 2025.
EPA in 2014 floated a different Natural Gas STAR Gold program that was also designed to encourage voluntary reductions of methane from the sector, but scrapped the effort in July following industry criticism that the program's requirements would have been overly burdensome and few companies would have participated.
In contrast, recent comments filed on the new Methane Challenge proposal are generally supportive of the program's overall framework -- though industry groups warned the agency against ever trying to translate the methane reductions achieved in the program to regulatory mandates such as air permit limits.
For the proposed Methane Challenge program, EPA proposes to give companies two options for participating, the first being One Future, an existing industry program in which companies make commitments to achieve specific rates of emissions intensity across all facilities within a specific segment by 2025.
The second option would mean that companies would commit to company-wide implementation of best management practices (BMPs) selected by EPA to reduce methane emissions from key sources by a specific date.
Some industry groups have highlighted the BMP option as a preferred approach. For example, the American Petroleum Institute (API), representing energy producers, said in its Nov. 13 comments that it appreciates the BMP option and that it is the preferred approach of many of its member companies. API suggested that the agency should coordinate the program with other regulatory actions, including EPA's draft control techniques guidelines for the sector's existing sources, as such coordination could ensure broader industry participation.
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Arctic Methane Emissions Persist in Winter
Dec 30, 2015 | Truth-Out
By Alex Kirby
The quantity of methane leaking from the frozen soil during the long Arctic winters is probably much greater than climate models estimate, scientists have found.
They say at least half of annual methane emissions occur in the cold months from September to May, and that drier, upland tundra can emit more methane than wetlands.
The multinational team, led by San Diego State University (SDSU) in the US and including colleagues from the National Oceanic and Atmospheric Administration, and the University of Sheffield and the Open University in the UK, have published their conclusion, which challenges critical assumptions in current global climate models, in the Proceedings of the National Academy of Sciences.
Methane, a potent greenhouse gas, is about 25 times more powerful per molecule than carbon dioxide over a century, but more than 84 times over 20 years. The methane in the Arctic tundra comes primarily from organic matter trapped in soil which thaws seasonally and is decomposed by microbes.
It seeps naturally from the soil over the course of the year, but climate change can warm the soil enough to release more methane from organic matter that is currently stable in the permafrost.
Scientists have for some years been accurately measuring Arctic methane emissions and incorporating the results into their climate models. But crucially, the SDSU team says, almost all of these measurements have been obtained during the Arctic's short summer.
Its long cold period has been largely "overlooked and ignored," according to Walter Oechel of SDSU, with most researchers thinking that, because the ground is frozen solid during the cold months, methane emissions practically shut down for the winter.
"Virtually all the climate models assume there's no or very little emission of methane when the ground is frozen," he says. "That assumption is incorrect."
The authors say the water trapped in the soil doesn't freeze completely at 0°C. The top layer of the ground - known as the active layer - thaws in the summer and refreezes in the winter, and it experiences a kind of sandwiching effect as it freezes.
When temperatures are around 0°C (called "the zero curtain") the top and bottom of the active layer begin to freeze, but the middle remains insulated. Micro-organisms in this unfrozen layer continue to break down organic matter and emit methane many months into the Arctic winter.
Dual Approach
To find out how much methane is emitted during the winter, the researchers used both ground-based and airborne methods.
The ground-based researchers recorded methane emissions from five sampling towers in Alaska over two summer-autumn-winter cycles between June 2013 and January 2015 and found that a major part of winter emissions was recorded when temperatures hovered near the zero curtain.
"This is extremely relevant for the Arctic ecosystem, as the zero curtain period continues from September until the end of December, lasting as long as or longer than the entire summer season," said Donatella Zona, the study's lead author.
"These results are the opposite of what modellers have been assuming, which is that the majority of the methane emissions occur during the warm summer months while the cold-season methane contribution is nearly zero."
Data Confirmed
The researchers also found that during the cold season methane emissions were higher at the drier, upland tundra sites than in the wetlands. Upland tundra had previously been assumed to contribute a negligible amount of methane, Zona said.
To test whether the site-specific sampling was typical of methane emissions across the Arctic, the researchers compared their results with measurements recorded during flights made by NASA's Carbon in Arctic Reservoirs Vulnerability Experiment (CARVE).
The data from the ground-based sites proved well-matched with the larger-scale aircraft measurements, which showed that large areas of Arctic tundra and boreal forest continued to emit high levels of methane to the atmosphere long after the surface soil had frozen.
The team also used satellite microwave sensor measurements to develop regional maps of surface water cover, including the timing, extent and duration of seasonal flooding and drying of the region's wetlands. This showed that the big methane-emitting areas were in the drier tundra.
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Few State Climate Bills Enacted in 2015
Dec 31, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
State legislatures were mostly quiet in 2015 when it came to enacting significant climate change bills, with the notable exception of California.
Other states that did take action in 2015 rolled back efforts to curb greenhouse gas emissions or took steps to resist the Environmental Protection Agency's Clean Power Plan, which requires states to curb carbon dioxide emissions from existing power plants.
California Pursues Ambitious Agenda
California Gov. Jerry Brown (D) signed into law dozens of environment and energy measures that lawmakers passed in the legislative session that ended Sept. 11. Bills to advance the governor's ambitious climate policies were among the most closely watched.
Brown signed S.B. 350 to help achieve his goal of boosting the state's renewable energy standard from 30 percent by 2020 to 50 percent by 2030. The bill also aims to double the energy efficiency of existing buildings by 2030.
A related bill, A.B. 802, requires the California Public Utilities Commission to clear the way for the state's investor-owned utilities to offer incentives to make existing buildings more energy efficient and then recoup the costs through reasonable rates. A.B. 802 also requires utilities to maintain records on the energy use of buildings they service.
The new law repeals a provision in existing law requiring owners or operators of commercial buildings to disclose energy performance information upon the sale or lease of a building.
Another climate-related bill signed by Brown that will affect the housing sector is a measure (A.B. 693) creating a program offering financial incentives for solar installations at multifamily affordable housing projects.
Climate Adaptation Bills
Brown signed a number of bills related to climate adaptation, including one (A.B. 1482) requiring the Natural Resources Agency to update the state's climate adaptation plan by July 1, 2017, and then again every three years. The law also creates a framework for the Natural Resources Agency to coordinate adaptation efforts with other state agencies.
He also signed a bill (S.B. 246) establishing an Integrated Climate Adaptation and Resiliency Program to coordinate regional and local adaptation efforts with state planning and a bill (S.B. 379) requiring cities and counties to include climate risk assessments and adaptation strategies in their general hazard mitigation plans by 2017. Local agencies without the plans will have until 2022 to identify risks and adaptation strategies.
Brown also signed these climate-related measures:
• A.B. 692, requiring state agencies that use vehicle fuels to buy a minimum of 3 percent of very low carbon fuels a year, beginning January 2017, and then increasing that amount by 1 percent a year, as long as it is feasible and the fuels perform adequately;
• A.B. 793, requiring retail electric and gas companies to develop incentive programs by June 30, 2016, to encourage customers to use energy management technologies;
• A.B. 1236, requiring cities and counties to create an expedited permitting and inspection process for the installation of electric vehicle charging stations;
• A.B. 1269, extending until 2021 sales and use tax exclusions for projects that promote advanced manufacturing in California, reduce greenhouse gas emissions or curb air and water pollution and energy consumptions; and
• A.B. 1496, requiring the California Air Resources Board to monitor high emission methane hot spots and review scientific information on the atmospheric reactivity of methane as a precursor to the formation of photochemical oxidants, which include ozone.
New York Adds RGGI Money to General Fund
New York Gov. Andrew M. Cuomo (D) signed a budget bill April 13 that swept $41 million in state proceeds from the Regional Greenhouse Gas Initiative into the state General Fund (S.4610) (63 DEN A-4, 4/2/15).
The sweep raised concerns among environmental groups and some Democratic lawmakers who said it diverted money from its intended purpose—energy efficiency, clean energy and consumer benefit projects.
The bill directed $23 million of the proceeds to the state Environmental Protection Fund (EPF), a fund used for various environmental projects, parks and historic sites.
Under the memorandum of understanding between the nine RGGI states, most proceeds are supposed to be used for energy efficiency, clean energy and consumer benefit projects.
Washington Bill Stymies Fuel Standards
In Washington, a disgruntled Democratic governor swallowed hard and signed a revenue bill (2ESSB 5987) July 15 that contained a “poison pill” inserted by Republican lawmakers attempting to stymie the administration's imposition of low-carbon fuel standards (136 DEN A-10, 7/16/15).
Gov. Jay Inslee (D) responded to the Legislature's failure to approve bills to institute a cap-and-trade program and to set low-carbon fuel standards with a July 28 order to the Ecology Department to promulgate rules to cap carbon (146 DEN A-19, 7/30/15).
“This is not the comprehensive approach we could have had with legislative action,” he said at the time. “But Senate Republicans and the oil industry have made it clear that they will not accede to any meaningful action on carbon pollution, so I will use my authority under the state Clean Air Act to take these meaningful steps.”
The cap-and-trade rules will require the state's largest polluters—foundries like Alcoa Inc. and refineries like BP Plc, Shell, Phillips 66 Co. and Tesoro Corp.—to reduce their greenhouse emissions.
Inslee also said he would not pursue a clean fuel standard because the so-called poison pill in 2ESSB 5987 would sweep about $2 billion earmarked for multi-modal transportation from the $16 billion transportation infrastructure package funded by the bill if he imposes a clean fuel standard through executive action.
Wisconsin Repeals Permit Rule
Wisconsin Gov. Scott Walker (R) signed S.B. 144 July 1, repealing a Department of Natural Resources (DNR) administrative rule relating to construction permit requirements for stationary sources that emit greenhouse gases. The DNR's rule had been linked to the EPA's view that it has the authority to regulate the emissions from a wide range of stationary sources.
The U.S. Supreme Court in 2014 ruled EPA had overstepped its authority in establishing permitting requirements stationary based on greenhouse gas emissions alone (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014); 121 DEN A-1, 6/24/14).
S.B. 144 clarifies that the DNR administrative rule is invalid in light of the Supreme Court's ruling.
Other States Take Action
Other state actions include:
• Utah Gov. Gary Herbert (R) signed a resolution March 25 (HCR 8) calling on President Barack Obama to direct federal agencies that implement management practices that increase soil carbon sequestration to develop plans to achieve the maximum amount of carbon sequestration possible and increase the economic and environmental productivity of rangelands. The resolution declared that emphasizing improved soil health as the primary means of removing atmospheric carbon dioxide “represents a win-win solution to the current climate change controversy.”
• North Carolina lawmakers considered a measure (H.B. 571) that would have required the Department of Environmental Quality to file suit against the EPA over the Clean Power Plan. Although the bill died in session, the state agency sued anyway (217 DEN B-1, 11/10/15).
• Tennessee Gov. Bill Haslam (R) signed into law May 18 legislation (S.B. 1325; Public Act No. 2015-478) that requires a commission, upon submission of the Department of Environment and Conservation's final state plan for administering the EPA's Clean Power Plan to prepare a report that assesses effects of the plan on the electric power sector and electricity consumers in the state.
With assistance from Andrew Ballard in Raleigh, N.C., Tripp Baltz in Denver, Carolyn Whetzel in Los Angeles, Paul Shukovsky in Seattle and Michael Bologna in Chicago.
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Some States Eased Air Permit Burdens in 2015
Dec 31, 2015 | BNA Daily Environment Report
By Andrew M. Ballard
Some state legislatures in 2015 took action to streamline permitting requirements for the oil and gas industry and other industrial sources during a year of sparse activity on air pollution.
New laws in Illinois and Wyoming eased air pollution permitting requirements while North Carolina reduced the required number of air pollution monitors to the minimum required by the Environmental Protection Agency. Meanwhile, California and New Jersey enacted measures addressing motor vehicles and fuel.
California also enacted several measures aimed at addressing climate change, while a new Wisconsin law repealed a greenhouse gas regulation that had been administratively adopted (see related story).
Illinois: Easing Permit Burdens
Illinois took action in 2015 to assume local control over its pollution permitting program for industrial sources of air pollution and to ensure its requirements align with the Clean Air Act.
In a major policy shift, Gov. Bruce Rauner (R) Aug. 25 signed S.B. 1672 to assume state control over the federal prevention of significant deterioration permitting process, a move industry groups say will ease regulatory burdens. The new Illinois law (Public Act No. 99-0463) moves the state out of the Environmental Protection Agency's prevention of significant deterioration permitting framework and into a new process directed by the Illinois Pollution Control Board.
P.A. 99-0463 requires the state board to develop and operate a new PSD permitting program for major new or modified sources of air pollution in nonattainment areas, primarily outside of the Chicago and East St. Louis, Ill., metropolitan areas. The measure also moves the appeals process to the state board from the EPA's Environmental Appeals Board (167 DEN A-9, 8/28/15).
S.B. 1672 was a top priority for the Illinois business community and several large employers, including heavy equipment manufacturer Caterpillar Inc., the power company Dynegy Inc. and the agricultural processing giant Archer Daniels Midland Co.
Rauner also signed into law H.B. 3341, addressing the definition of a “stationary source.”
That new Illinois law (P.A. 99-0380) clarifies that stationary source means “any building, structure, facility, or installation that emits or may emit any regulated air pollutant or any pollutant listed under Section 112(b) of the Clean Air Act, except those emissions resulting directly from an internal combustion engine for transportation purposes or from a non-road engine or non-road vehicle as defined in Section 216 of the Clean Air Act.”
The statutory change was pushed by the Illinois Chamber of Commerce, which sought consistency between state and federal air permitting programs with respect to certain engines used in transportation.
Reducing Monitors in North Carolina
In North Carolina, Gov. Pat McCrory (R) signed into law Oct. 22 a bill (H.B. 765) that includes provisions that provide certain protections for companies that voluntarily disclose violations found during self-audits and reduces the number of required air pollution monitors to those mandated by the EPA.
That measure (Session Law number 2015-286) also repeals idling restrictions for heavy-duty vehicles, authorizes farmers to burn plastic used in agriculture rather than recycling or otherwise disposing of it and bars the enforcement of federal emission standards for wood heaters, among other changes (212 DEN A-13, 11/3/15).
McCrory had previously approved legislation (H.B. 157; S.L. 2015-1) that stipulated that the state Environmental Management Commission need not regulate toxic air emissions from oil and natural drilling operations unless the commission determines that general state and federal air toxics regulations provide inadequate environmental protection (53 DEN A-13, 3/19/15).
Wyoming Oil and Gas Well Permits
During the 2015 legislative session, Wyoming enacted a measure (S.F. 117; Session Law 2015-66) that eased permit requirements for oil or gas exploration or production wells and the associated equipment, effective July 1, 2015.
Wyoming's new law provides for the construction and operation of an oil or gas well to commence without an air quality permit if the operator of the well files an application within 90 days of the first date of production of the oil or gas operation. The new state law only applies to oil and gas exploration or production activities that qualify as a minor source, as defined under the federal Clean Air Act.
To qualify for an exemption under S.L. 2015-66, permit applicants must demonstrate they will apply the best available control technology to the oil and gas production activity.
State Laws Address Vehicles, Fuel
States also passed laws regulating emissions from vehicles and spurring investment in cleaner fuel production.
Utah Gov. Gary R. Herbert (R) signed a bill (S.B. 216) March 30 providing tax credits for retrofitting a refinery to make it capable of producing fuel complying with the EPA's Tier 3 sulfur standard for gasoline used in motor vehicles.
The new law directs the Utah Office of Energy Development to issue a tax credit to companies developing a high cost infrastructure project, including certain fuel standard compliance projects. The Utah Office of Legislative Research and General Counsel estimates that nearly $8 million in tax credits could be approved under the bill (50 DEN A-15, 3/16/15).
Among the new laws enacted in California was a bill (S.B. 513) authorizing regional air districts, except for Sacramento, to levy motor vehicle registration fees that can be used on projects to bring the areas into attainment with federal and state air pollution standards. The measure allows vehicle registration fees in the Sacramento area to be used to help fund alternative fuel and electric infrastructure.
New Jersey enacted a measure (P.L. 2015-43) that bans retrofitting any diesel-powered vehicle with any device, smoke stack or other equipment that enhances the vehicle's capacity to emit soot, smoke or other particulate emissions. The New Jersey law also prohibits “coal rolling,” the practice of intentionally releasing thick, black diesel smoke and soot from smokestacks on specially retrofitted diesel-powered trucks.
Also during 2015, Georgia imposed new registration fees on alternative fuel vehicles (63 DEN A-14, 4/2/15).
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Sierra Club Sues EPA Over Missing Sulfur Dioxide Plans
Dec 31, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Sierra Club is seeking a court order that would require the Environmental Protection Agency to issue formal findings that 13 states have failed to submit plans on how they intend to bring Detroit, Indianapolis and other areas into attainment with the 2010 sulfur dioxide standard (Sierra Club v. McCarthy, D.D.C., No. 1:15-cv-2264, 12/29/15).
The environmental organization, in a lawsuit filed Dec. 29, alleged that EPA Administrator Gina McCarthy failed to perform her nondiscretionary duty under the Clean Air Act to issue findings of failure to submit nonattainment area state implementation plans. The issuance of a finding of failure to submit triggers an obligation that the EPA issue a federal implementation plan within two years, unless the state submits an adequate plan.
The 13 affected states are Arizona, Indiana, Iowa, Kentucky, Louisiana, Michigan, Montana, New Hampshire, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin. Those states were required to submit their nonattainment plans under the 75 parts per billion sulfur dioxide standard by April 6, but have not yet done so.
The Clean Air Act requires the EPA to issue a formal finding of failure to submit no later than six months after the statutory deadline for plan submittal.
“On October 6, 2015, the statutory six month deadline for EPA to make a finding of failure to submit passed, and to date EPA has made no determinations that any states have failed to submit the required state implementation plan,” the Sierra Club said in its complaint.
The complaint, which was filed in the U.S. District Court for the District of Columbia, requested a declaration that McCarthy is in violation of the Clean Air Act, an order compelling McCarthy to issue the findings by an “expeditious” date and an order that would allow the court to retain jurisdiction over the issue until the findings are issued. The Sierra Club is represented by Zachary Fabish, a staff attorney in the Sierra Club's Washington, D.C., office, and Kathryn Amirpashaie, an environmental attorney with an office in Leesburg, Va.
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DOE Finalizes Residential Boiler Efficiency Standards
Dec 31, 2015 | BNA Daily Environment Report
The Energy Department issued a final rule increasing the energy efficiency standards for residential boilers, according to a Dec. 30 Federal Register pre-publication notice. The final rule establishes new minimum annual fuel utilization efficiency (AFUE) standards for the following residential boilers: gas-fired hot water boilers (84 percent AFUE), gas-fired steam boilers (82 percent AFUE), oil-fired hot water boilers (86 percent AFUE) and oil-fired steam boilers (85 percent AFUE). These changes in efficiency are slightly lower than those listed in the proposed version of the standard issued in March(61 DEN A-2, 3/31/15). All residential boilers will be required to be in compliance with the new efficiency standards five years after the final rule is published in the Federal Register.
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