Preview Newsletter
ACC Jan 22
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(ACC Mentioned) ‘Pro-Plastic Steps If Waste Recycled’
Jan 21, 2016 | Financial Express
Kamal Uddin Ahmed, secretary, ministry of Environment and Forests said if a policy is formulated with necessary rules and regulations, definitely the waste plastic sector will develop in coming days. He said government is always supportive to the plastic makers. They will take pro-plastic use action so that it can be properly recycled, reused... -
(ACC Mentioned) Attorneys General Stress Right to Regulate Chemicals
Jan 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
State authority to regulate chemicals should not be preempted until the Environmental Protection Agency has made a final decision as to whether it will regulate a chemical or not, 12 attorneys general told House and Senate leaders Jan. 21. The attorneys general from California, Hawaii, Iowa, Maine, Maryland, Massachusetts... -
More Toxic Waste, Fewer Releases, EPA Finds
Jan 22, 2016 | BNA Daily Environment Report
By David Schultz
Companies produced more toxic waste in 2014 but released less of it into the environment, according to the Environmental Protection Agency's annual summary of its Toxics Release Inventory database. They handled 25.45 billion pounds of toxic waste in 2014, a number that has been slowly but steadily... -
EPA Touts Decreases In Industrial Toxics Releases
Jan 21, 2016 | InsideEPA
EPA is touting total decreases in industrial releases of toxics to the environment driven largely be reduced releases of air pollutants, according to its latest national analysis of Toxics Release Inventory (TRI) data, but the decreases in the percentage of air releases are partly offset by an increase in the percentage of releases to land. -
Toxic Releases Fell 6 Percent In 2014 -- EPA
Jan 21, 2016 | E&E News PM
By Sam Pearson
Discharges of toxic chemicals at the nation's industrial facilities declined by 6 percent from 2013 to 2014, according to U.S. EPA data released today. The most recent Toxics Release Inventory (TRI) showed 84 percent of about 25 billion pounds of toxic waste generated at industrial facilities was diverted to recycling, energy recovery... -
Green Chemistry Hindered By Lack Of Toxicology Training
Jan 21, 2016 | ChemistryWorld
By Rebecca Trager
Pioneers in green chemistry are warning that the development of new environmentally friendly, non-toxic chemicals is being hampered by a lack of training in toxicology and environmental mechanisms in US chemistry degree courses. John Warner, president and chief technology officer of the Warner Babcock Institute for Green Chemistry... -
Modelling Of Nanomaterial Impacts Needs More Research, Says Csiro Scientist
Jan 21, 2016 | Chemical Watch
Much more research is needed before science can provide regulators with the data, models, mechanisms and tools needed to predict the biological impacts of nanomaterials, says a modelling expert and computational chemist at Australia’s national science organisation, Csiro. -
CSB to Study Link Between Land Use, Accidents
Jan 22, 2016 | BNA Daily Environment Report
By Stephen Lee
The Chemical Safety and Hazard Investigation Board will launch a study about the proximity of communities to chemical facilities, Vanessa Sutherland, the agency's chairwoman, said Jan. 20. “Our West Fertilizer investigation is just the most recent indication that we need to take a look at how land... -
DeFazio to Foxx: Move Faster On Oil Spill Response Rule
Jan 21, 2016 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
Rep. Peter DeFazio blasted the administration today for not moving more quickly to finalize a rule requiring oil spill response plans for oil trains, and is asking DOT to "reassess your timeline." A provision included in the fiscal 2016 omnibus appropriations law required that DOT issue a final rule, which is intended to help communities and first... -
(ACC Mentioned) Enviros File Another Lawsuit Against EPA Boiler Rules
Jan 21, 2016 | E&E News PM
By Sean Reilly
U.S. EPA's much-contested boiler pollution rules are facing a new lawsuit from several environmental groups. The Sierra Club and three other groups filed the petition for review Tuesday with the U.S. Court of Appeals for the District of Columbia Circuit, challenging the standards for hazardous air emissions from large industrial... -
Obama's Last Year May Be Tough for Oil, Gas
Jan 22, 2016 | BNA Daily Environment Report
By Alan Kovski
Tensions between the Obama administration and the oil and gas industry are high and may be headed higher in the last year of the administration. Industry representatives do not dispute that their industry's relations with the federal government are very difficult, although they consistently express a hope for cooperation. -
Fracking May Be Linked To Porter Ranch Gas Leak
Jan 21, 2016 | The Sacramento Bee
By Maya Golden-Krasner
Did fracking play a role in the Porter Ranch natural gas leak, one of the biggest environmental disasters in recent California history? In October, a ruptured storage well in the Aliso Canyon oil field began spewing hundreds of thousands of tons of noxious gas into Los Angeles neighborhoods. -
Appeals Court Rejects Stay of Clean Power Plan
Jan 22, 2016 | BNA Daily Environment Report
By Dean Scott
The U.S. Court of Appeals for the District of Columbia Circuit rejected a motion Jan. 21 by more than two dozen states to stay the Obama administration's power plant carbon pollution limits—a setback for opponents of the climate regulations (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16). -
Obama's Climate Change Rule Stays Alive, For Now
Jan 21, 2016 | PoliticoPro
By Alex Guillén
The centerpiece of President Barack Obama’s plan to fight climate change survived its biggest legal test so far, but the administration is not out of the woods yet. The D.C. Circuit Court of Appeals’ decision on Thursday to keep EPA’s carbon rules for existing power plants in place while lawsuits against it play out indicates the rule’s far-off... -
Judges Refuse To Block Rule, Set Arguments For June 2
Jan 21, 2016 | E&E News PM
By Robin Bravender
In a big victory for the Obama administration and its allies, federal judges today rebuffed attempts to block U.S. EPA's Clean Power Plan. The U.S. Court of Appeals for the District of Columbia Circuit denied requests from a broad array of industry and labor groups and more than two dozen states that had asked the court to halt the rule curbing... -
Court Won’t Block Obama’s Climate Rule
Jan 21, 2016 | The Hill - E2 Wire
By Timothy Cama
President Obama’s landmark climate change rule for power plants can move forward while its opponents challenge it, a federal court ruled Thursday. The Court of Appeals for the District of Columbia denied a request by West Virginia, dozens of other states and various energy interest groups to put a judicial stay on the regulation... -
Senate Democrats Plan Climate Amendments for Energy Bill
Jan 22, 2016 | BNA Daily Environment Report
By Ari Natter
Senate Democrats are planning a new batch of climate amendments to an energy bill expected on the floor next week as the party continues to draw attention to the Republican majority's lack of action on climate change, Sen. Brian Schatz (D-Hawaii) told Bloomberg BNA. -
Senators Prepare Amendments For Energy Bill Free-For-All
Jan 21, 2016 | The Hill - E2 Wire
By Timothy Cama
Senators of both parties are planning to bring their various priorities to the Senate floor next week as amendments to the wide-ranging energy bill the chamber will debate. Lawmakers want to see the Senate vote on measures that would help out the coal industry, improve energy efficiency or make statements on climate change.But many of the ... -
Appeals Court Declines to Block EPA Carbon Rule During Litigation
Jan 22, 2016 | The Wall Street Journal
By Brent Kendall and Amy Harder
A federal appeals court on Thursday declined to temporarily block a key Obama administration environmental rule to limit carbon emissions from power plants, rejecting requests by states and companies that wanted the regulation halted while they challenged it in court. -
Environmentalists Sue EPA Over Revised Boiler MACT
Jan 21, 2016 | InsideEPA
Environmentalists are suing EPA over its revised air toxics rule for large “major” source boilers, criticizing the agency's refusal to reconsider parts of the rule that advocates oppose and seeking to scrap an exemption of boilers from numeric emissions limits during unit startups and shutdowns, as well as other contested provisions. -
EPA's Opponents Claim Draft Utility MACT Cost Review Flawed, Unlawful
Jan 21, 2016 | InsideEPA
By Stuart Parker
EPA's critics claim that the agency's draft finding that its utility air toxics rule is "appropriate and necessary" (A&N) under the Clean Air Act even when costs are considered is procedurally flawed and unlawful, seeking to overcome some observers' claims that the finding will survive a legal fight as judges will defer to EPA's calculations. -
Gov. Brown's Agenda Lacks New Climate, Water Programs
Jan 22, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California Gov. Jerry Brown (D) laid out his agenda for 2016 on Jan. 21, calling for continued fiscal restraint but lacking any new climate and water initiatives. “You are not going to hear me talk today about new programs,” Brown said in his state of the state address. “Rather, I am going to focus on how we pay for the commitments we have.. -
Senate Fails to Override Veto of Water Rule Resolution
Jan 22, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
The Republican-controlled Senate was unable Jan. 21 to override President Barack Obama's veto of a congressional resolution to overturn a rule seeking to clarify which waters can be regulated under the Clean Water Act. The Senate needed 67 votes to override the president's veto, and 60 votes to even bring the question to the floor.
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(ACC Mentioned) ‘Pro-Plastic Steps If Waste Recycled’
Jan 21, 2016 | Financial Express
Kamal Uddin Ahmed, secretary, ministry of Environment and Forests said if a policy is formulated with necessary rules and regulations, definitely the waste plastic sector will develop in coming days.
He said government is always supportive to the plastic makers. They will take pro-plastic use action so that it can be properly recycled, reused and reduced.
The secretary was speaking at a seminar on ‘Plastic Waste Management: International experience’ at Bangabandhu International Conference Centre (BICC) held on the sidelines of a four-day International Plastic Summit 2016 in the city.
There is a large potential of recycling plastic goods at home and abroad. “Wonderful product can be produced by the waste plastic if we utilise these things perfectly,” he said.
But following absence of effective waste management system, these products are polluting environment.
Steve Russell, president of Plastic Division of American Chemistry Council, Kongsak Dokbua, representative of Plastic Institute of Thailand also shared their country experiences in managing waste. -
(ACC Mentioned) Attorneys General Stress Right to Regulate Chemicals
Jan 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
State authority to regulate chemicals should not be preempted until the Environmental Protection Agency has made a final decision as to whether it will regulate a chemical or not, 12 attorneys general told House and Senate leaders Jan. 21.
The attorneys general from California, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington issued seven principles that, they said, should underlie any legislation to modernize the Toxic Substances Control Act.
The principles were part of a letter that discussed the TSCA Modernization Act (H.R. 2576), which sailed through the House June 23, 2015, on a 398–1 vote, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which the Senate approved unanimously by voice vote Dec. 17, 2015. Prior to the vote, the Senate bill was designated S. 697, but it passed as a substitute amendment (S. Admt. 2932) to H.R. 2576 (244 DEN A-7, 12/21/15).
“[S]tate and local regulation of public health and safety, and environmental effects, is consistent with the traditional allocation of responsibilities and powers under our federal system of government,” the attorneys general wrote.
“States should not be preempted until EPA has taken a final action,” they wrote.
TSCA and the House bill take this approach, the attorneys general continued.
Notwithstanding their support of that particular aspect of the House bill, the attorneys general did not support one chamber's bill over another.
Instead they described elements in each bill that they would prefer, language that should be clarified and language from the Consumer Product Safety Improvement Act (Pub. L. No. 110-314) that should be considered for the TSCA-modernization effort.
Preemption, Enforcement, Budget
The seven principles the attorneys general issued addressed two issues: preemption and enforcement.
The principles' central tenet was states should retain their authority to take legal and regulatory actions needed to protect their residents' health and environment.
The principles also stressed states need to enforce regulatory compliance.
“[A]dherence to these principles is crucial to limit preemption to the greatest extent possible and succeed in spurring an appropriate, beneficial government partnership in chemical regulation,” the attorneys general said.
A state-federal partnership is critical to protecting public health and the environment “both when EPA has access to adequate resources and when the agency does not enjoy such resources,” the attorneys general said.
Their letter is the latest document to raise a long-standing concern that the successful implementation of an updated chemicals statute would be undermined if Congress fails to adequately fund the EPA.
CRS Issues Brief Analysis
On Jan. 11 the Congressional Research Service (CRS) issued a brief analysis of recent congressional efforts to update TSCA.
“Neither the House bill nor the Senate amendment would provide mandatory appropriations to implement [an updated] TSCA,” said the CRS, which provides impartial policy and legal analyses to committees and members of Congress.
Yet, the ultimate effects of an updated TSCA “would depend on implementation decisions and resources provided,” the CRS said.
The possibility that Congress could underfund the EPA despite passing a new law greatly increasing the agency's responsibilities over chemicals has been a central concern of many organizations and former agency officials since at least 2009.
The EPA, American Chemistry Council and former assistant administrators for chemicals and pesticides at the EPA—appointed during both Republican and Democratic administrations—urged Congress in 2009 and since then to provide the agency adequate, consistent funding commensurate with its responsibilities to oversee chemicals.
States echoed that call in a legislative analysis the Environmental Council of the States released Jan. 7 (06 DEN A-2, 1/11/16).
“From the perspective of many states, it is essential to fund EPA's work on chemicals adequately,” states said in their analysis, “Toxic Substances Control Act (TSCA) Reform: Key Issues and Comments.”
Whitehouse: EPA Budget ‘Relentlessly Attacked.’
Sen. Sheldon Whitehouse (D-R.I.), too, has voiced concerns about the effects past and future cuts to EPA's budget have.
“I also sit on the Budget Committee where the other side of the aisle is constantly and relentlessly attacking the EPA budget,” Whitehouse said during a March 18, 2015, hearing the Senate's Environmental and Public Works Committee held on S. 697.
“This would be a better bill if there were coenforcement by states so that enforcement is not at the mercy of EPA budgets that our colleague are relentlessly attacking,” Whitehouse said during the hearing. Whitehouse supported S. 697 after it was revised to allow states to enforce state chemical regulations that mirrored EPA's.
State enforcement and EPA's budget are linked, because states want the ability to enforce protections should the EPA be unable to do so.
States Assert Their Preferences
In their Jan. 21 letter, the attorneys general said: “The current versions of both the House and Senate bills wisely continue to allow states to adopt requirements that are identical to EPA's.”
However, “they place limits on the recovery of penalties that we believe hamper the important deterrent value of the statutory penalty scheme,” they said.
“In this regard, we prefer the language in the Senate bill, which would restrict a state's recovery only if EPA has assessed an adequate penalty,” they said.
The state analysis that ECOS released said neither the House nor Senate bill would fully fund the new EPA responsibilities the bills envision.
The approach in the Senate bill, however, is preferable, because it would give the agency a better chance of securing needed resources.
The Senate bill would require the EPA to establish a wide variety of fees to which industries would be subject although industry fees would be capped.
“The House bill retains the approach of TSCA, which allows, but does not require, EPA to establish fees to defray costs of administering the act,” the state analysis said.
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More Toxic Waste, Fewer Releases, EPA Finds
Jan 22, 2016 | BNA Daily Environment Report
By David Schultz
Companies produced more toxic waste in 2014 but released less of it into the environment, according to the Environmental Protection Agency's annual summary of its Toxics Release Inventory database.
They handled 25.45 billion pounds of toxic waste in 2014, a number that has been slowly but steadily increasing as the economy continues to recover from the Great Recession. However, those same companies released only 3.89 billion pounds of that waste, a six percent decline from the prior year.
These and other data were released Jan. 21 in the EPA's annual TRI National Analysis report for 2014. The report contains pollution data collected from more than 21,000 facilities across the U.S. and its territories.
The metal mining industry was the highest contributor in 2014 to the total amount of toxic releases, accounting for 45 percent of the 3.89 billion pounds of waste released. However, the total amount of pollution released by the mining industry decreased by 10 percent from 2013, when it was at an all-time high of nearly 2 billion pounds.
The TRI program collects data only from companies legally required to report to it, such as metal mining, electric utilities and manufacturers. It does not include data from several other large industries that are TRI-exempt, including oil and gas drilling and petroleum storage.
Pollution Prevention
The annual summary of the TRI program also contains information about measures companies are taking to reduce the amount of toxic pollution they release.
Only 13 percent of the industrial facilities required to report to the TRI said that they had implemented new pollution reduction measures in 2014. Of the facilities that didn't implement new reduction measures, more than 40 percent said that the biggest barrier was a lack of substitute chemicals or alternative technologies.
Caitlin Briere, the EPA's lead for the 2014 TRI report, said in a conference call with the media that this data point could be a signal that there's an appetite among companies for the development of new green chemistry products.
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EPA Touts Decreases In Industrial Toxics Releases
Jan 21, 2016 | InsideEPA
EPA is touting total decreases in industrial releases of toxics to the environment driven largely be reduced releases of air pollutants, according to its latest national analysis of Toxics Release Inventory (TRI) data, but the decreases in the percentage of air releases are partly offset by an increase in the percentage of releases to land.
EPA's National Analysis of 2014 TRI data, released Jan. 21, describes a 13 percent drop in total releases of TRI chemicals managed by facilities that must report to the agency between 2014 and 2003. That includes a six percent decrease in total release between 2013 and 2014. The 2014 calendar year data is the most recent available, given the lag in reporting time and agency efforts to check the data and analyze it.
EPA explains that the long-term 13 percent decrease in releases “is driven mainly by declining air releases, down . . . 55 [percent] since 2003. The decrease is driven by electric utilities due to a shift from coal to other fuel sources and the installation of control technologies at coal-fired power plants, which has led to decreases in hazardous air pollutant (HAP) emissions, such as hydrochloric acid.”
TRI tracks releases of specified chemicals by air, land and water disposal, recycling and other releases. The agency notes that in its long-term analyses, “[a]ir emissions have also accounted for a declining share of the total releases (down from 36 [percent] in 2003 to 19 [percent] in 2014) while the portion of releases that are disposed on land has increased (up from 48 [percent] in 2003 to 65 [percent] in 2014).”
In the short-term, EPA explains that the year over year six percent decrease is “due primarily to decreases in on-site land disposal by the metal mining sector.”
Metals mining decreased by 10 percent, the agency's analysis indicates. The agency adds that since “2010, on-site releases to land by metal mining facilities have fluctuated significantly. Metal mines have cited changes in production and changes in the composition of waste rock as the primary reasons for this variability.”
In addition to metals mining, the most recent year's decrease in toxics releases is attributed to two other sectors: chemical manufacturing, which decreased by five percent and electric utilities, whose releases dropped 3 percent.
Congress created TRI in 1986 with the passage of the Emergency Planning and Community Right-to-Know Act, in response to a pair of accidents at chemical producing facilities in Bhopal, India in 1984 and in West Virginia in 1985. TRI requires industrial facilities in certain sectors, including manufacturing, electricity generation, metals mining and others to report environmental releases of a specified set of more than 650 chemicals.
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Toxic Releases Fell 6 Percent In 2014 -- EPA
Jan 21, 2016 | E&E News PM
By Sam Pearson
Discharges of toxic chemicals at the nation's industrial facilities declined by 6 percent from 2013 to 2014, according to U.S. EPA data released today.
The most recent Toxics Release Inventory (TRI) showed 84 percent of about 25 billion pounds of toxic waste generated at industrial facilities was diverted to recycling, energy recovery and treatment programs, while the remaining 16 percent, or 4 billion pounds, of waste was released to the environment.
For the purpose of TRI reporting, EPA counts discharges as pollutants released to the air or water or disposed of at a licensed disposal facility. The program is meant to provide basic information to state and local communities about the operations of industrial sectors in their regions.
The data measure more than 650 chemicals that are discharged into the environment in a given year. Companies have to file the information by July 1.
Air releases declined 4 percent from 2013 to 2014, which EPA said was the result of decreases in emissions from chemical plants and electric utilities. That marks a 55 percent decline from 2003 levels, the agency said. Facilities increased their air emissions by 1 percent from 2012 to 2013.
The mining industry continues to play a big role in the makeup of TRI statistics. Its waste discharges have fluctuated significantly amid changing market conditions in recent years. In 2014, the metal mining sector accounted for 45 percent of all chemical releases and 70 percent of the on-site land disposal for all industrial sectors, EPA said.
In the automotive industry, vehicle production has doubled since 2009 even as toxic releases have remained stable, the report noted.
"This is a really cool story about how the releases per car manufactured in the U.S. have gone down quite a bit," said Caitlin Briere, a program analyst at EPA and the lead author of the report, in a call with reporters this afternoon.
In a statement, Ann Dunkin, EPA's chief information officer, said the TRI provides communities "unprecedented access to information about what toxic chemicals are being used and released in their neighborhoods, and what companies are doing to prevent pollution."
The data have limitations, EPA said, and don't track all chemicals or the duration and frequency of chemical releases, among other issues.
Companies that generate the chemicals at levels above specified quantities are required to disclose the information under the Emergency Planning and Community Right-to-Know Act.
EPA is still working on some regulatory changes to the TRI program. Companies will have to start reporting emissions of 1-bromopropane beginning in 2017. EPA is also working on a proposed rule to add new reporting requirements for operators of natural gas facilities (Greenwire, Oct. 27, 2015).
Last year, the data showed that industrial facilities released 15 percent more toxic chemicals in 2013 than in 2012 (Greenwire, Jan. 14, 2015).
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Green Chemistry Hindered By Lack Of Toxicology Training
Jan 21, 2016 | ChemistryWorld
By Rebecca Trager
Pioneers in green chemistry are warning that the development of new environmentally friendly, non-toxic chemicals is being hampered by a lack of training in toxicology and environmental mechanisms in US chemistry degree courses.
John Warner, president and chief technology officer of the Warner Babcock Institute for Green Chemistry in Massachusetts, said at a 13 January briefing on Capitol Hill that most chemists are taught to synthesise molecules without considering their impacts on human health or the environment. He said it is wrong that ‘part of their educational process isn’t how to anticipate the negative impacts of those things’. The event was convened by the Green Chemistry & Commerce Council, which is a network of about 80 US companies invested in greening their supply chains.
‘This is the weird aberration of the way the science of chemistry has evolved that someone else’s problem is to worry about the toxicity and environmental impact,’ Warner told the briefing attendees. Because most chemical companies have R&D budgets that are similar to their environmental compliance budgets, it makes sense for scientists to only invent non-toxic, benign chemical formulations, he suggested.
Adelina Voutchkova, an assistant chemistry professor at George Washington University in Washington, DC, agreed that there is a real dearth of chemists who understand the field of toxicology. Further, she said there is an even bigger scarcity of tools in the research sector that can be applied to innovating new chemicals, as opposed to discussing the relative toxicity of one chemical over another.‘Major research universities are not just blasé about teaching green chemistry, they are actually ferociously antagonistic’The director of the American Chemical Society’s Green Chemistry Institute, David Constable, also expressed concern that chemistry and chemical engineering education have remained largely unchanged for 60 to 70 years, despite significant advancements in those fields. ‘Every single aspect of chemistry should be taught from a sustainable or green chemistry perspective,’ he stated at the briefing.
However, rather than embracing green chemistry, Constable said, the major research universities ‘are not just blasé about it, they are actually ferociously antagonistic’. It is seen as something unnecessary, he said.
Another significant concern is the lack of capitalisation for green chemistry in the US. Jim Millis, the chief technology officer of the industrial biotechnology company BioAmber, said many biobased chemicals developed in the US are being commercialised offshore: ‘A lot of these new innovations that are developed in the US are moving overseas for commercialisation – in the form of loan guarantees or some other policy.’
‘We are guilty of that,’ Millis admits of BioAmber, a US company whose technology initially was developed with the help of the US Department of Energy. The company, which has its R&D facility in Minnesota, built the world’s first commercial-scale bio-succinic acid plant last year in Canada, where it is now headquartered. ‘The Ontario government offered interest free and low interest loans, and there weren’t the same abilities for us to raise money in the US as in Canada at the time,’ explains Mike Hartmann, BioAmber’s executive vice president.
But Hartmann also says some encouraging changes have occurred over the last few years amid the recognition of green chemistry’s importance to the US economy. US loan programmes, for example, are becoming much more receptive to chemicals. ‘A lot of these sorts of programmes weren’t designed for chemicals,’ Hartmann says, ‘And that is something that has changed in the US and globally.’
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Modelling Of Nanomaterial Impacts Needs More Research, Says Csiro Scientist
Jan 21, 2016 | Chemical Watch
Much more research is needed before science can provide regulators with the data, models, mechanisms and tools needed to predict the biological impacts of nanomaterials, says a modelling expert and computational chemist at Australia’s national science organisation, Csiro.
Regulators are struggling to provide clear-cut frameworks and guidelines for the rapidly increasing numbers of nanomaterials being used in products, says professor David Winkler in his review of computational modelling of nanomaterial behaviour, recently published in Toxicology and Applied Pharmacology.
However, he says there has been “substantial” progress over the last five years and cause for optimism that this will continue.
The assessment of their possible adverse effects is more complex than industrial chemicals, he says, as they span a range of different shapes, sizes and compositions. How the substances interact with biological systems also depends on solubility, manufacturing history, surface modifications, tendency to agglomerate and interactions with ions, salts, proteins and other biological macromolecules.
Data-driven modelling techniques, such as machine learning and quantitative structure activity (or property) relationships (Qsars or QSPRs), provide predictions of biological impacts just as they have done for organic chemicals and polymers, he concludes.
Nanoparticles with metal oxide cores, for example, magnetic iron oxide, have also been the subject of successful Qsar models of biological effects. Electronic properties, such as conduction band and frontier orbital energies, and hydration energies have been used as descriptors, providing a link to reactive oxygen species which cause cell toxicity (CW 26 September 2013).
Another success is the increasing power of molecular dynamics (MD) methods to simulate the interactions of nanomaterials with proteins and cell membranes.
Nanoparticles rarely interact with biology in their pristine form, professor Winkler says, but attract a “corona” or coating of proteins in blood, or humic substances in soil. The corona depends upon the nanoparticles’ surface chemistry and the biological environment. It is also dynamic as, with time, the particle will exchange common low-affinity macromolecules for less abundant high-affinity ones. It will also change as the nanoparticle moves from one environment to another.
MD methods have “developed strongly in the last two years”, he says, and have been applied to interactions with proteins, biomembranes, cell uptake and possible interactions with the self-assembly of amyloidogenic peptides in the brain, associated with disease. However, these computationally intensive methods cannot yet work with real world complex environments.
Knowledge gaps, he says, include: reconciling the properties and behaviour of nanomaterials in the laboratory with commercial nanomaterials in the real world;understanding and quantifying their composition, structure, agglomeration, surface chemistry, dimensions and interactions with the environment;developing mathematical descriptors for the above properties;Qsar models of nanomaterial behaviour need to have their predictivities evaluated more rigorously; andmore high quality data sets on their biological effects are needed.
There are limited models available for regulators for prioritising nanomaterials, he says, which address important toxic endpoints, such as reactive oxygen species. But “clearly, there is a long way to go before we can provide regulators with sufficient high quality data, predictive models, mechanistic details and decision tools for nanomaterials with wide application.”
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CSB to Study Link Between Land Use, Accidents
Jan 22, 2016 | BNA Daily Environment Report
By Stephen Lee
The Chemical Safety and Hazard Investigation Board will launch a study about the proximity of communities to chemical facilities, Vanessa Sutherland, the agency's chairwoman, said Jan. 20.
“Our West Fertilizer investigation is just the most recent indication that we need to take a look at how land use planning may have contributed to the consequences of the accident,” Sutherland said at the agency's Jan. 20 business meeting, referring to a 2013 blast at a facility in West, Texas, that killed 15 people and leveled parts of the town, causing an estimated $100 million in damage .
The CSB found similar circumstances in 13 of its previous investigations, Sutherland said.
Staff at the CSB's Office of Investigations in both Washington, D.C., and Denver have developed a proposal for a new study that will “consider whether and how existing regulations and practices can be improved to address this risk,” Sutherland said.
The agency's board members have heard and discussed the proposal, she said, and will reveal more details at the CSB's Jan. 28 public meeting in Waco, Texas, Sutherland said. At that meeting, the CSB will release the final report and safety recommendations arising from its West investigation.
Changes in Management
Also at the Jan. 20 meeting, Board Member Richard Engler said the CSB is in the process of incorporating the comments heard at last week's public meeting in Torrance, Calif., in connection with the February 2015 explosion at an Exxon Mobil Corp. facility .
Engler further said he has ongoing concerns about what happens to the currently dormant facility after PBF Energy, which has purchased it, takes control.
“What happens when you have major upheavals, transitions, changes, when huge corporations merge?” Engler said. “Does safety get lost in that process? How could it best be continued on an ongoing basis, on the radar screen of existing management and the corporate boards, as well as on the new management and corporate boards?”
The Torrance refinery currently isn't operating; PBF hopes to acquire it later this year, after various repairs are finished.
In an interview with Bloomberg BNA in November 2015, Sutherland said that mergers and acquisitions in the chemical industry were among her top three concerns for the year ahead.
Quick Pace of Meetings
Sutherland also spoke during the Jan. 21 meeting about various internal improvements, such as a new code of conduct for CSB personnel. Since taking over the agency in late August 2015, Sutherland has sought to rebuild morale and professionalism, which many say had dwindled under the leadership of former CSB chairman Rafael Moure-Eraso.
The quick pace of public meetings—the Jan. 21 meeting was its third in three months—also signals a shift from Moure-Eraso's tenure, during which agenda items were often left to linger. Sutherland has promised to hold at least four business meetings per year to keep the public informed.
The CSB's next business meeting is scheduled for Feb. 23 in Washington, D.C.
The board hasn't yet publicly commented on the fate of CSB Managing Director Daniel Horowitz and General Counsel Richard Loeb, who were placed on administrative leave last June, pending an investigation of possible misconduct (147 DEN A-15, 7/31/15).
On Jan. 21, however, the CSB posted a job advertisement for a new general counsel.
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DeFazio to Foxx: Move Faster On Oil Spill Response Rule
Jan 21, 2016 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
Rep. Peter DeFazio blasted the administration today for not moving more quickly to finalize a rule requiring oil spill response plans for oil trains, and is asking DOT to "reassess your timeline."
A provision included in the fiscal 2016 omnibus appropriations law required that DOT issue a final rule, which is intended to help communities and first responders prepare for an oil train spill, by Dec. 18, 2016. But according to DeFazio, DOT informed him that PHMSA doesn't expect to issue a final rule until June 2017.
June 2017 will be "long after you have left office and a new administration that may or may not finalize this rulemaking is in place. Furthermore, even that date, according to your letter, may be adjusted as PHMSA moves forward with the rulemaking process, a clear signal that this is not a priority for the Department of Transportation. Meanwhile, crude-by-rail accidents continue to occur," DeFazio wrote in a letter to Transportation Secretary Anthony Foxx.
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(ACC Mentioned) Enviros File Another Lawsuit Against EPA Boiler Rules
Jan 21, 2016 | E&E News PM
By Sean Reilly
U.S. EPA's much-contested boiler pollution rules are facing a new lawsuit from several environmental groups.
The Sierra Club and three other groups filed the petition for review Tuesday with the U.S. Court of Appeals for the District of Columbia Circuit, challenging the standards for hazardous air emissions from large industrial, commercial and institutional boilers and process heaters.
Following a request from some of the same groups for reconsideration of a 2013 version of the standards, EPA published its decision in a Nov. 20 Federal Register notice.
Under a court-ordered schedule, the plaintiffs won't have to spell out the issues they plan to raise in the appeal until Feb. 18. But Jim Pew, an Earthjustice attorney who is among the lawyers representing the groups, said in an interview that they will be challenging what he called an "unlawfully weak" carbon monoxide standard of 130 parts per million (ppm), along with EPA's decision to exempt large boilers from numerical emissions standards during startup and shutdown periods.
The other plaintiffs are the Clean Air Council, Environmental Integrity Project and Chesapeake Climate Action Network.
By EPA's estimate, there are some 14,000 "major source" boilers and process heaters at refineries and other facilities that burn coal and other fuels to generate electricity or heat.
In its November decision, EPA noted it had received "numerous comments" in support of the 130 ppm threshold for carbon monoxide, many of which said the standard was consistent with existing agency regulations for hazardous waste incinerators and industrial furnaces.
Last month, the appellate court held oral arguments on a consolidated suite of legal challenges to both the emission rules for large boilers and for smaller "area source" boilers.
The American Chemistry Council and other industry organizations contend that the rules are overly strict and don't take into account what reductions are actually achievable. Environmental groups represented by Earthjustice argue that the rules aren't tough enough and that EPA weakened them by creating too many categories of sources (E&ENews PM, Dec. 3, 2015).
A three-judge panel is expected to issue rulings in three cases this year.
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Obama's Last Year May Be Tough for Oil, Gas
Jan 22, 2016 | BNA Daily Environment Report
By Alan Kovski
Tensions between the Obama administration and the oil and gas industry are high and may be headed higher in the last year of the administration.
Industry representatives do not dispute that their industry's relations with the federal government are very difficult, although they consistently express a hope for cooperation. They suggest the difficulties are not a matter of bureaucracies but rather of policies stemming from the White House, and the policies may be driven in 2016 by concerns about climate change and an activist campaign to keep fossil fuels in the ground.
“We just feel that it's a regulatory onslaught,” said Dan Naatz, senior vice president of government relations and political affairs at the Independent Petroleum Association of America.
President Barack Obama pushed the tensions a notch higher in his final State of the Union address Jan. 12.
Regulatory Wave
Recent or pending regulatory actions focused partly or wholly on the oil and gas industry are from the BLM, the U.S. Forest Service, FWS, BSEE, BOEM, EPA and PHMSA. In addition, the administration has repeatedly requested higher fees to address permitting and inspection costs.
Pending
• BLM venting and flaring rule to reduce methane emissions.
• BLM Onshore Order 3 on regulation of oil and gas operations where state, private and federal lands are interconnected.
• BLM Onshore Order 4 on measurement of oil from federal leases.
• BLM Onshore Order 5 on measurement of gas from federal leases.
• BLM consideration of whether to raise royalty rates, rental fees, financial assurance (bonding) requirements and other requirements for oil and gas exploration and production.
• BSEE offshore well control rule.
• BSEE offshore production safety rule.
• BSEE offshore Arctic rule.
• EPA emission regulations for methane and volatile organic compounds from new oil and gas wells.
• EPA consideration of emission regulations for existing oil and gas wells.
• PHMSA pipeline integrity inspection rule.
Recently Completed
• BLM hydraulic fracturing rule.
• BLM and U.S. Forest Service protections for greater sage grouse.
• BOEM rejections of lease extension requests in Arctic.
• FWS protections for lesser prairie chicken.
• EPA tighter standard for ozone pollution.
• PHMSA rule on tighter standards for shipments of crude oil and other flammable liquids by rail.
• Administration requests for new or higher fees.
“Now we've got to accelerate the transition away from old, dirtier energy sources,” Obama said. “That's why I'm going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet.”
The first step in pursuit of that policy has been announced by the Interior Department as a moratorium on new coal leasing on federal lands (11 DEN A-16, 1/19/16).
Oil companies are awaiting the rest of the policy. Among other things, the year could see more delays or even a moratorium on oil and gas leasing on federal onshore lands and a slimmed-down, restrictive five-year plan for offshore leasing.
‘It's at the White House Level.'
“It's at the White House level that those decisions are going to be made,” Randall Luthi, president of the National Ocean Industries Association, told Bloomberg BNA. “Those are going to be political decisions.”
Obama may want to cement a legacy through last-year regulations, a prospect that especially worries the oil industry because of the president's emphasis on the dangers of climate change.
“Climate change is driving so much of what's been going on, this fervor to keep it in the ground,” Naatz told Bloomberg BNA.
The Interior Department will play a central role in the administration's final year of regulations. Requests to Interior for comment on the policy tensions and regulatory prospects drew no responses for this story.
BLM Regulations
Some of the regulatory initiatives stem from the 2010 Deepwater Horizon disaster, when 11 men died and an estimated 3.19 million barrels of oil were spilled into the Gulf of Mexico. The industry has contributed to the tougher regulations with its own revised standards but is worried that the proposed federal regulations are in some ways impractical.
Much remains pending. The Bureau of Land Management, as the onshore leasing agent for Interior, has been delaying leases in the face of environmental activism and working on an array of issues.
The agency is working on a venting and flaring rule to reduce emissions of methane, a potent greenhouse gas (RIN 1004-AE14), and revision of three “onshore orders” (RIN 1004-AE15, RIN 1004-AE16, RIN 1004-AE17) concerning measurement of oil and natural gas and regulation of state and private oil and gas operations that are intertwined in some way with federal land.
The BLM has been considering whether to raise royalty rates in situations where the agency has some flexibility, and it has been looking at the possibility of increasing financial assurance (bonding) requirements, rental fees and other requirements (RIN 1004-AE41).
Those initiatives come atop the long battle over the BLM's new rule on hydraulic fracturing (RIN 1004-AE26). That fight has shifted to a federal court, as have Obama administration actions that can limit oil and gas activities within much of the extensive habitats of the greater sage grouse and the lesser prairie chicken.
Other Regulations Pile Up
Pending from the Bureau of Safety and Environmental Enforcement for offshore oil and gas development is a well control rule (RIN 1014-AA11), a production safety rule (RIN 1014-AA10) and a rule tailoring regulations to Arctic conditions (RIN 1082-AA00). The Bureau of Ocean Energy Management has been refusing oil company requests for lease extensions in Arctic waters.
The administration has repeatedly proposed to Congress that legislation allow for new or higher fees to fund inspections and permit processing.
At the same time, the Environmental Protection Agency recently proposed tighter federal emission regulations for methane and volatile organic compounds from new oil and gas exploration and production (RIN 2060-AS30) and may follow that with stricter standards for existing wells and infrastructure. The EPA last year tightened the federal standard for ozone pollution, a change that poses the risk of barriers to oil and gas facilities of any kind in areas out of attainment with the tougher standard (RIN 2060-AP38).
The Pipeline and Hazardous Materials Safety Administration is working on a pipeline integrity inspection rule that industry groups fear will be too costly (RIN 2137-AE66). It follows a recent PHMSA rule on tighter standards for shipments of crude oil and other flammable liquids by rail (RIN 2137-AE91).
Halt Wanted to Oil, Gas Leasing
Environmental advocacy groups have recognized the potential for moratoria on oil and gas leasing and permitting parallel to the moratorium on new coal leasing announced Jan. 15 by Interior pending a programmatic environmental impact review.
Six environmental activist groups sent a Jan. 14 letter to the White House calling on Obama to order Interior to undertake immediately a programmatic environmental impact statement (PEIS) of the federal onshore oil and gas program and to place a hold on all new federal leasing until the study is complete. One of those groups, WildEarth Guardians, followed that Jan. 20 with a formal petition to the BLM.
“Consistent with Interior's approach to coal leasing, pending completion of the PEIS WildEarth Guardians requests a moratorium on all new oil and gas leasing and approvals of applications for permits to drill,” the group said in its petition.
Questions on Offshore Five-Year Plan
The Bureau of Ocean Energy Management in early 2015 issued a draft proposed five-year plan to govern oil and gas leasing in the federal offshore starting in July 2017. It included the possibility of leasing in part of the Atlantic offshore from Virginia to Georgia, raising cries of protest from environmental activists and many people living along the coast.
Among other questions: Was the Atlantic part of the draft proposal serious? Oil companies obviously feared it would be dropped from the plan at the next proposed stage or the final stage. They filed comments urging the administration to keep the Atlantic portion of the plan (docket BOEM-2014-0096).
Environmental activists want more than just the Atlantic portion removed. Marissa Knodel, climate campaigner for Friends of the Earth, said of the five-year plan, “That's a great opportunity for President Obama to hopefully not offer any new leases on offshore drilling.”
Athan Manuel, director of the Lands Protection Program for the Sierra Club, said he hoped Interior's announcement on the coal moratorium and environmental review was indicative of coming oil and gas actions. In that context, he said he was looking toward the next announcement on the five-year offshore plan.
Fifty-one exploration wells were drilled in the Atlantic offshore during 1976-1984 according to BOEM data. No one reported finding commercial quantities of oil or gas, but it is a long coast with much more room for exploration.
Talking but Not Agreeing
Industry representatives continue to meet with federal officials, though without necessarily agreeing on much.
“We would like to have a more cooperative engagement and dialog,” the IPAA's Naatz said. “Not that they close the doors. They've been open. You can have discussions.”
Naatz said he also is more than willing to talk to environmental activists. “The absolutely worst thing you can do is not talk to people,” he said.
The relations typically are friendlier at field offices around the country, Naatz said. Interior field officials probably end up scratching their heads now and then about the decisions coming out of the department's headquarters, he said.
Naatz and Luthi both stressed the need for some degree of predictability. With consistent, stable regulations, “you can work that into your program,” Luthi said.
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Fracking May Be Linked To Porter Ranch Gas Leak
Jan 21, 2016 | The Sacramento Bee
By Maya Golden-Krasner
Did fracking play a role in the Porter Ranch natural gas leak, one of the biggest environmental disasters in recent California history?
In October, a ruptured storage well in the Aliso Canyon oil field began spewing hundreds of thousands of tons of noxious gas into Los Angeles neighborhoods. Three months later, this massive leak still hasn’t been stanched. Thousands of people in the Porter Ranch area have been driven from their homes, schools and businesses by horrible smells and spiking levels of cancer-causing benzene. Maya Golden-Krasner Todd Cheney
State regulators don’t seem to know what caused the leak, or how to stop it. But newly uncovered documents show that hydraulic fracturing was commonly used in the Aliso Canyon gas storage wells – including a well less than a half-mile from the leak.
Gov. Jerry Brown should immediately halt fracking in gas storage facilities throughout California. This technique – injecting fluids, including toxic chemicals, at enormous pressures into the wells – poses a huge threat to public safety.
The facts about this little-known practice were buried in a recent California Council on Science and Technology report. “Hydraulic fracturing facilitates about a third of the subsurface storage of natural gas in the state,” and is especially common in Aliso Canyon, the report says. Operators frack storage wells to increase gas production, which decreases by about 5 percent a year, according to a U.S. Department of Energy report.
In California, natural gas is often stored in depleted oil wells built more than 60 years ago. These aging wells were not designed to handle the extremely high pressure of fracking. Their metal casings are often corroded, making them susceptible to damage caused by acids and other chemicals injected at high pressures.
The public is not notified of this practice. That’s because California’s new fracking notification law, Senate Bill 4, contains a little-noticed provision exempting well stimulation for gas storage. And officials with the state’s Division of Oil, Gas and Geothermal Resources know disturbingly little about fracking in Aliso Canyon wells or other gas storage operations around the state.
That’s consistent with the Brown administration’s hands-off approach to regulating oil and gas companies’ underground injection activities. In 2011, Brown fired two oil regulators who raised safety concerns. Last year, state regulators even admitted they had let oil companies drill thousands of injection wells into legally protected underground water supplies.
Still, a few hints about gas storage fracking can be found in well records. State documents show that in 2005 a storage well was fracked less than half a mile from the ruptured well. My organization’s review of well records suggests this practice usually isn’t noted by the companies operating the wells or state officials.
Despite the widespread use of this practice, most Californians have no idea that gas storage wells near their homes are being fracked. That’s absolutely unacceptable and must end immediately.
We still don’t know when the disastrous gas leak at Aliso Canyon will be stopped. But every possible measure should be taken to reduce the risk of another such catastrophe – and that must include permanently shutting the facility and prohibiting fracking statewide.
Read more here: http://www.sacbee.com/opinion/op-ed/soapbox/article55880170.html#storylink=cpy -
Appeals Court Rejects Stay of Clean Power Plan
Jan 22, 2016 | BNA Daily Environment Report
By Dean Scott
The U.S. Court of Appeals for the District of Columbia Circuit rejected a motion Jan. 21 by more than two dozen states to stay the Obama administration's power plant carbon pollution limits—a setback for opponents of the climate regulations (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16).
The D.C. Circuit's order, hailed as a victory by environmental groups, paves the way for the court to focus on the merits of the case against the Environmental Protection's Clean Power Plan (RIN 2060-AR33).
The order from the three-judge panel also schedules oral arguments in the case to begin June 2 and sets an April 15 deadline for initial briefs to be filed.
That timing is of interest for some states, such as Alabama, which are essentially putting off efforts to comply with the carbon limits in hopes of having them ultimately overturned in the courts (06 DEN A-4, 1/11/16).
West Virginia Attorney General Patrick Morrisey issued a statement after the court ruling saying he is vowing to take the fight to the U.S. Supreme Court.
“A favorable Supreme Court decision at this time would freeze EPA's [Clean] Power Plan and protect workers, job creators and state agencies from spending untold resources to comply with a rule that is likely to be struck down as illegal” by the courts, Morrisey said.
The Clean Power Plan is the key regulatory action launched by the Obama administration to cut greenhouse gas emissions using the president's existing executive branch authority given congressional inaction on climate change. The EPA anticipates the limits will cut overall carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030, requiring states to meet individual emissions targets that would be phased in between 2022 and 2030 (149 DEN B-1, 8/4/15).
The White House issued a statement late Jan. 21 hailing the court's ruling.
“We are pleased that the court has rejected petitioners' attempts to block the Clean Power Plan from moving forward while litigation proceeds. We are confident that the plan will reduce carbon pollution and deliver better air quality, improved public health, and jobs across the country.”
Climate Advocates Applaud Ruling
Environmental and other groups that support the EPA effort applauded the court action, saying it ensures the requirements remain in effect while the court hears arguments on the merits of the case.
“The Clean Power Plan encourages states to use their own best ideas and resources to create prosperous clean energy economies,” Environmental Defense Fund President Fred Krupp said in a press statement. The carbon limits rest “on a rock-solid legal foundation and will help America move toward a safer and healthier future.”
But industry opponents of the rule say the appeals court ruling was mixed—the court did agree to an expedited briefing schedule, opponents said, and the denial of the stay request could still be appealed.
Among those joined in the lawsuit against the EPA rule, Murray Energy Corp. said it was pleased the D.C. Circuit granted its request for expedited consideration of its challenge, but said it was disappointed that the court did not issue an immediate stay of the rule.
“As such, we will appeal decision to the Supreme Court of the United States,” the coal giant said in a statement.
Twenty-seven states have filed lawsuits to overturn the Clean Power Plan; 18 states have intervened to defend the rule (214 DEN A-3, 11/5/15).
Other states battling the regulations in court include Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, and the state departments of environmental quality in Mississippi and North Carolina.
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Obama's Climate Change Rule Stays Alive, For Now
Jan 21, 2016 | PoliticoPro
By Alex Guillén
The centerpiece of President Barack Obama’s plan to fight climate change survived its biggest legal test so far, but the administration is not out of the woods yet.
The D.C. Circuit Court of Appeals’ decision on Thursday to keep EPA’s carbon rules for existing power plants in place while lawsuits against it play out indicates the rule’s far-off compliance deadlines convinced the judges that there is no imminent or irrevocable harm.
The challengers “have not satisfied the stringent requirements for a stay pending court review,” wrote the three judges in an order.
The ruling means states will still have to submit their initial compliance plans by Sept. 6 or ask EPA for two-year extensions. Most states, even those challenging the rule, are crafting plans to reduce their emissions as an insurance policy in case the rule survives. EPA has said it will impose its own plan on states that refuse to come up with their own.
However, the three judges did put the legal challenge on a fast track by scheduling oral arguments for June 2. That means a final decision on the legality of the Clean Power Plan is more likely to come before the Sept. 6 submission deadline.
The expedited timeline could open up an easier path toward killing the rule if the circuit strikes it down and a Republican president is elected and then opts not to continue any appeal to the Supreme Court, which is widely expected to have the final say.
West Virginia Attorney General Patrick Morrisey said he was "disappointed" with the decision, but remains optimistic that the rule ultimately will be struck down.
“The court did not issue a ruling on the merits and we remain confident that our arguments will prevail as the case continues. We are pleased, however, that the court has agreed to expedite hearing the case," Morrisey said.
Scott Segal, director of the Electric Reliability Coordinating Council, a coalition of utilities and energy companies, said that the decision not to stay the carbon rule, "while not wholly surprising, may be subject to appeal," potentially to the full D.C. Circuit or the Supreme Court.
Environmental groups quickly praised the decision not to block the rule.
"Winning isn’t everything, but in this case it's pretty close," said Carol Browner, a Clinton-era EPA administrator and first-term energy adviser to President Barack Obama.
"It underscores the Clean Power Plan’s strong basis in law and signals that legal challenges to it will ultimately fall short," Browner added. "It’s time to stop suing to stay stuck in the past, and start working to usher in the clean energy economy of the future."
Environmental Defense Fund president Fred Krupp said the decision "means we can continue working — without delay — to protect Americans from the clear and present danger of climate change."
Sean Donahue, an attorney who represents EDF in the lawsuit, told POLITICO the expedited consideration doesn’t raise concerns about the judges’ early thinking about EPA’s regulation, only that it “will mean a lot of work for everyone.”
In the meantime, EPA’s foes will double down on their efforts to get the Clean Power Plan tossed out for good. Twenty-seven states and more than 100 companies and industry groups have filed lawsuits, all of which were consolidated into the lawsuit led by West Virginia.
They are advancing several arguments questioning whether the Clean Air Act allows EPA to require tools such as renewable energy mandates to control pollution or whether its authority is limited to cutting emissions from coal plants themselves.
EPA counters that the law is on its side and that the agency should receive deference to interpret conflicting statutes in the CAA.
Coal producer Peabody Energy, which has hired liberal law icon Laurence Tribe, has also raised several constitutional concerns over the Clean Power Plan, though it remains unclear whether the court will be receptive.
The judges to issue the order were Karen LeCraft Henderson, a George H.W. Bush appointee who also sat on the panel that rejected as premature challenges to the proposed Clean Power Plan; Judith W. Rogers, a Bill Clinton appointee; and Sri Srinivasan, who was named to the bench by Barack Obama in 2013.
It is unclear whether those three judges will be the same panel to rule on the broader legal issues. Early procedural issues like stay requests are typically handled by a temporary panel.
Coincidentally, the ruling came on the final day to submit public comments on EPA’s proposed federal implementation plan for the Clean Power Plan.
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Judges Refuse To Block Rule, Set Arguments For June 2
Jan 21, 2016 | E&E News PM
By Robin Bravender
In a big victory for the Obama administration and its allies, federal judges today rebuffed attempts to block U.S. EPA's Clean Power Plan.
The U.S. Court of Appeals for the District of Columbia Circuit denied requests from a broad array of industry and labor groups and more than two dozen states that had asked the court to halt the rule curbing greenhouse gas emissions from power plants while litigation surrounding its legality plays out.
"Petitioners have not satisfied the stringent requirements for a stay pending court review," the court said in a brief order this afternoon.
The court also announced that it wants the case to proceed quickly, with initial briefs filed by April 15 and final briefs filed by April 22. Oral arguments are scheduled for June 2 before Judges Karen LeCraft Henderson, a Republican appointee, and Democratic appointees Judith Rogers and Sri Srinivasan.
EPA and its allies had warned the court not to block the rule. They argued that critics of the regulation hadn't proved they would be irreparably harmed, nor were they likely to win on the merits of the case.
Nationally, the final regulation is expected to reduce carbon dioxide emissions from power plants 32 percent below 2005 levels by 2030. The rule is one of the administration's signature environmental efforts and was held up as evidence of domestic action on climate change during recent international climate negotiations in Paris.
States and industries argued that they would face immediate and irreparable harm if the rule remained in place during the litigation. They also argued that they were likely to prevail in court once the judges dug into the merits of the case.
The parties now will spar over the rule's legality in their briefs to the court. Legal experts predict a decision could come from the appeals court late in 2016 or early in 2017. The case is widely expected to then head to the Supreme Court for review.
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Court Won’t Block Obama’s Climate Rule
Jan 21, 2016 | The Hill - E2 Wire
By Timothy Cama
President Obama’s landmark climate change rule for power plants can move forward while its opponents challenge it, a federal court ruled Thursday.
The Court of Appeals for the District of Columbia denied a request by West Virginia, dozens of other states and various energy interest groups to put a judicial stay on the regulation, saying the challengers didn’t show that the stay is needed.“Petitioners have not satisfied the stringent requirements for a stay pending court review,” the court’s three-judge panel wrote in the brief order.
It’s a major early win for the Environmental Protection Agency, which immediately faced a barrage of congressional and legal challenges from the moment in August when it made the regulation final.
The White House is “pleased” with the decision, press secretary Josh Earnest said in a statement.
“We are confident that the plan will reduce carbon pollution and deliver better air quality, improved public health, and jobs across the country,” he said.
EPA spokeswoman Melissa Harrison said her agency is confident the climate rule will pass muster in court.
“The Plan rests on strong scientific and legal foundations, provides states with broad flexibilities to design and implement plans, is clearly within EPA’s authority under the Clean Air Act and shows the United States’ leadership on climate action,” she said.
The rule, known as the Clean Power Plan, mandates a 32 percent cut in carbon dioxide emissions from the nation’s power plants.
Opponents told the court that without a stay, they would quickly suffer irreparable harm from a regulation that could eventually be overturned, since they say it does not comply with the Clean Air Act and the Constitution.
But the opponents did score a win in Thursday’s order. The court agreed to expedite the litigation process, scheduling oral arguments for June 2.West Virginia Attorney General Patrick Morrisey, who is leading the legal charge against the regulation, said he was "disappointed" in the decision, but believes the challenge "will ultimately prevail in court.” “The court did not issue a ruling on the merits and we remain confident that our arguments will prevail as the case continues,” Morrisey said. Environmental groups applauded the court for letting the regulation proceed. “This decision clears the way for states to continue implementing this common-sense standard,” said Joanne Spalding, chief climate counsel for the Sierra Club. “The only people who won’t be cheering this decision are those who profit from pollution and their political allies.” “This is a huge win for protecting our health and climate from dangerous carbon pollution,” said David Doniger, climate program director at the Natural Resources Defense Council. “The court has brushed aside the polluters’ bogus bid to block the Clean Power Plan, and the electricity sector will continue the shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future.” In considering a judicial stay, the judges weigh the likelihood that the challengers would succeed on the case’s merits, whether the challengers would suffer irreparable harm without a stay, whether other parties would not suffer substantial harm and whether a stay is in the public interest.
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Senate Democrats Plan Climate Amendments for Energy Bill
Jan 22, 2016 | BNA Daily Environment Report
By Ari Natter
Senate Democrats are planning a new batch of climate amendments to an energy bill expected on the floor next week as the party continues to draw attention to the Republican majority's lack of action on climate change, Sen. Brian Schatz (D-Hawaii) told Bloomberg BNA.
The action follows a series of amendments calling for the recognition that climate change is real and caused by human activity that Democrats brought forward last January to a bill (S. 1) that would have deemed the Keystone pipeline approved.
“We shifted the discussion pretty significantly and we anticipate being able to make further progress on the floor,” Schatz said. “The environment for Republican members of the Senate is shifting and they know it and we want to continue to lay a predicate that we can't be the only party with a viable plan to combat climate change.”
He said he was working on the proposals with Sens. Sheldon Whitehouse (D-R.I.) and Maria Cantwell (D-Wash.), the top Democrat on the Energy and Natural Resources Committee, though the specific wording was still being developed.
New Wording
“They are already on the record,” Schatz said. “There will be new policy choices in front of them.”
Fifteen Republican Senators voted with the entire Democratic caucus during last January's consideration of S. 1 to agree with the scientific consensus that human activity contributes to climate change, as part of an amendment brought forward by Sen. John Hoeven (R-S.D.) to counter more strongly worded amendments on the issue brought forward by Democrats (14 DEN A-17, 1/22/15).
For instance, a separate amendment by Schatz that said human activity “significantly” contributed to climate change, which is also scientific consensus, drew the support of just five Republicans. Neither amendment received the 60 affirmative votes needed to be included to the bill, which was ultimately vetoed by President Barack Obama.
The Democrats' latest efforts come as Republicans are under renewed scrutiny to come up with a plan to address human-caused climate change or at the very least more broadly acknowledge that it is occurring.
Republicans Sought
“Eventually, if we are going to solve this problem we are going to need a Republican dance partner,” Schatz said.
The amendment could be among several controversial amendments brought forward to the bill (S. 2012) , as its author, Sen. Lisa Murkowki (R-Alaska), the chairman of the Energy and Natural Resources Committee, tries to keep poison pills that could kill the bill away (13 DEN A-1, 1/21/16).
“We have a process where we can move through amendments. Some are going to be more controversial than others. Some will generate bipartisan support. But it's not the end of the day if we have to take votes on amendments we know generate a little bit of controversy,” Murkowski said in an interview with Bloomberg BNA.
The underlying bill, expected on the floor next week, would expedite the federal approval process for liquefied natural gas exports and strengthen building codes. It also includes provisions that would increase cybersecurity protections for the electricity grid, expedite the licensing process for hydropower projects and address access to rare earth minerals.
The 424-page bill, which if enacted would be the first broad rewrite of energy policy since 2007, is supported by companies including Whirlpool, United Technologies and Dow Chemical Co.
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Senators Prepare Amendments For Energy Bill Free-For-All
Jan 21, 2016 | The Hill - E2 Wire
By Timothy Cama
Senators of both parties are planning to bring their various priorities to the Senate floor next week as amendments to the wide-ranging energy bill the chamber will debate.
Lawmakers want to see the Senate vote on measures that would help out the coal industry, improve energy efficiency or make statements on climate change.But many of the provisions senators are preparing could erode the wide, bipartisan support enjoyed by the bill crafted by Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-Alaska) and Sen. Maria Cantwell (Wash.), the top Democrat.
“It'll be open for amendment, and since it came out of committee 18-4, I hope we’ll be able to replicate what we did on frequent occasions last year with the rewrite of No Child Left Behind, the highway bill and other matters,” Senate Majority Leader Mitch McConnell (R-Ky.) said Wednesday.
Sen. Brian Schatz (D-Hawaii) has used previous open amendment processes, including the one last year for the Keystone XL oil pipeline, to sponsor amendments asking the entire Senate to vote on whether climate change is real.
Schatz said he wanted to “keep the other side on their toes,” so he declined to be specific about what form an amendment could take.
“We’ve come to enjoy these opportunities, and I think we’ll make more progress next week,” he said.
Sen. Jeanne Shaheen (D-N.H.) was happy that the Energy Committee included in its bill most provisions of her energy efficiency legislation that she has pushed for years with Sen. Rob Portman (R-Ohio).
But the bill didn’t include a provision aimed at making energy efficient homes more affordable, so Shaheen said that might come up as an amendment.
Sen. John Barrasso (R-Wyo.) said the energy bill could include a vote on whether to reverse President Obama’s three-year moratorium on new coal leasing on public land.
“In a sense, that is going to just be sending pink slips to thousands of people who earn their living and livelihood with coal,” Barrasso said.
“This energy bill will be an opportunity to speak out with amendments specifically related to the president’s most recent actions.”
Sen. Cory Gardner (R-Colo.) wants to bring up some “nuts and bolts” amendments that didn’t make it into the original bill and are unlikely to be controversial, he said, while Sen. Martin Heinrich (D-N.M.) is likely to sponsor an amendment to improve permitting for renewable energy on public land.
Murkowski took provisions on hydropower permitting out of the bill last year, but she’s eyeing the amendment process to get them in.
“I kind of liked my bill,” she said.
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Appeals Court Declines to Block EPA Carbon Rule During Litigation
Jan 22, 2016 | The Wall Street Journal
By Brent Kendall and Amy Harder
A federal appeals court on Thursday declined to temporarily block a key Obama administration environmental rule to limit carbon emissions from power plants, rejecting requests by states and companies that wanted the regulation halted while they challenged it in court.
More than two dozen states and an array of utilities, coal producers and business groups argued they faced immediate burdens from complying with the Environmental Protection Agency regulation, which the administration issued in August.
The U.S. Court of Appeals for the District of Columbia Circuit, in a brief written order, denied their requests to stay the regulation during the litigation. The court said the challengers “have not satisfied the stringent requirements” for a stay of a regulation pending the court’s review.
The court’s action is an early victory for the EPA in what is likely to be a yearslong legal battle over a cornerstone of President Barack Obama’s climate plan. The agency is seeking to cut carbon dioxide emissions from hundreds of power plants across the U.S.
The regulation requires a 32% cut in power-plant carbon emissions by 2030 based on emissions levels of 2005. It is designed to force the utility industry, the largest source of U.S. carbon emissions that contribute to climate change, to shift toward cleaner-burning energy sources over the next several decades.
More than 30 lawsuits have been filed since October challenging the EPA’s authority across a range of grounds, some of them little explored by the courts.
The states challenging the rule, including West Virginia and other coal-reliant states, argued the regulation should be halted in the interim or else they would need to immediately begin enacting laws, revising regulations and devoting large sums of money and manpower to comply with the EPA mandate.
“If the court finds the plan unlawful, all these efforts and disruptions will be wasted and, in many cases, impossible to reverse,” the states said in a recent court filing.
Industry groups said that without a stay scores of power plants would be forced to shut down in the short term, harming power producers and other businesses that rely on them.
West Virginia Attorney General Patrick Morrisey, a Republican, said that while he was disappointed in Thursday’s order, he believes the coalition will win the lawsuit. He said the state was considering appealing to the Supreme Court for a stay.
“The court did not issue a ruling on the merits, and we remain confident that our arguments will prevail,” said Mr. Morrisey, whose state is leading the legal challenge.
The EPA didn’t immediately respond to a request for comment.
The White House, which has prioritized the EPA’s climate agenda, issued a statement praising the decision to not block the rule, called the Clean Power Plan.
“We are confident that the plan will reduce carbon pollution and deliver better air quality, improved public health, and jobs across the country,” said White House spokesman Josh Earnest. “We look forward to continuing to work with states and other stakeholders taking steps to implement the Clean Power Plan.”
Environmental groups supporting the agency’s case praised the order. “Today’s decision is a wonderful victory for all Americans across our nation,” said Vickie Patton, general counsel for the Environmental Defense Fund.
The EPA in court papers said that a stay was unjustified because the regulation was legal and imposed very little near-term burdens on the states, which don’t have to comply until 2022.
The agency also said any delay in implementing the regulations would postpone important carbon dioxide reductions.
“The additional amount of CO2 emitted because of any delay implementing the rule would irretrievably accumulate in the atmosphere and further contribute to, or even accelerate, the resulting public and environmental harms,” the EPA said in a court brief.
Thursday’s order declining to block the regulations came from a three-judge D.C. Circuit panel. The panel, two judges appointed by Democratic presidents and one appointed by a Republican, said it would consider the legal challenges on an expedited timeline. The court said it would hear oral arguments on June 2.
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Environmentalists Sue EPA Over Revised Boiler MACT
Jan 21, 2016 | InsideEPA
Environmentalists are suing EPA over its revised air toxics rule for large “major” source boilers, criticizing the agency's refusal to reconsider parts of the rule that advocates oppose and seeking to scrap an exemption of boilers from numeric emissions limits during unit startups and shutdowns, as well as other contested provisions.
In a lawsuit filed Jan. 19, Earthjustice and Environmental Integrity Project on behalf of several environmental groups petition the U.S. Court of Appeals for the District of Columbia Circuit for review of EPA’s Nov. 20 rule denying the group's earlier petitions for reconsideration of its boiler maximum achievable control technology (MACT) air toxics regulation.
While the filing gives no reasons for the lawsuit, Earthjustice in prior public comments outlined its objections to elements of the boiler MACT rule, which has undergone several modifications since its initial promulgation by the Obama EPA in 2011. The comments, on the January 2015 proposed version of the reconsideration rule, said that EPA has unlawfully departed from Clean Air Act requirements in making allowances for boilers during startup and shutdown.
EPA in the final revised rule issued Nov. 20 allows boiler operators to comply with “work practice standards” in lieu of tough numeric emissions limits during the first four hours of startup. These practices include a requirement to use approved “clean fuels” such as natural gas during startup, and to start control devices “as expeditiously as possible.” Neither of these measures complies with air law air toxics mandates, Earthjustice said in its comments.
The agency “has not shown that allowing sources to burn these fuels during startup and shutdown -- a period during some or all of which boilers do not have to meet emission standards or even engage their pollution control equipment -- is consistent with” air law section 112, which governs air toxics, Earthjustice argued.
In its Nov. 20 rule, EPA addressed the concerns and said that it “has established a work practice for periods of startup and shutdown because it is infeasible to measure emissions during these periods.”
Earthjustice also opposed EPA's use of carbon monoxide (CO) as a “surrogate” for air toxics regulated under the MACT. The group said EPA in a 2013 revision of the MACT reset a number of CO limits to 130 parts per million (ppm), when they had previously been much tougher. EPA in 2013 said this was because the relationship between the “surrogate” CO and the hazardous air pollutants it is a proxy for breaks down at CO levels below this limit.
In its 2015 reconsideration rule, EPA changed its rationale for the 130 ppm limit, Earthjustice says, to argue that “130 ppm is ‘in the range’ of 240 ppm which, in turn, is the ‘mathematical average’ of the CO emission levels recorded by some unidentified units that are allegedly the best performing 12 percent of units with respect to formaldehyde.” Minimum MACT standards are set based on the best performing 12 percent of units.
However, “EPA cannot make CO a valid surrogate just by inflating the CO standards. EPA’s inflated 130 ppm CO standards never purported to reflect the emission level achieved by any of the best sources when EPA set them, and the agency’s new claim that they roughly correspond to CO levels achieved by different sources that are allegedly best performers with respect to some other pollutant is irrelevant,” Earthjustice argued in its comments.
The broader issue of whether CO is an appropriate surrogate for air toxics is under litigation in U.S. Sugar Corp., et al. v. EPA, et al., a D.C. Circuit lawsuit over several provisions of the major source boiler MACT.
The court heard oral argument in the case Dec. 3, where Department of Justice attorney Norman Rave for EPA said that use of CO as a surrogate is “a technical judgment that EPA has made,” supported by the technical record, and that the agency is due deference on such questions. He defended CO as a good barometer of combustion efficiency and the rate at which air toxics are destroyed.
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EPA's Opponents Claim Draft Utility MACT Cost Review Flawed, Unlawful
Jan 21, 2016 | InsideEPA
By Stuart Parker
EPA's critics claim that the agency's draft finding that its utility air toxics rule is "appropriate and necessary" (A&N) under the Clean Air Act even when costs are considered is procedurally flawed and unlawful, seeking to overcome some observers' claims that the finding will survive a legal fight as judges will defer to EPA's calculations.
Coal industry officials, academics and Ohio's attorney general (AG) all outline arguments in recent comments to EPA that could potentially form the basis for a legal challenge to the final version of the cost finding, which is due in mid-April. However, any challenge would likely receive push-back from supporters of the air toxics rule and the cost finding, including from a coalition of Northeast states and a group of Wyoming environmentalists that filed comments on the review.
EPA published in the Dec. 1 Federal Register its review of the costs of its utility maximum achievable control technology (MACT) rule, also known as the mercury & air toxics standards (MATS). The rule responds to a Supreme Court decision faulting EPA for not weighing costs in the A&N review for the rule in 2011, which reaffirmed an earlier December 2000 finding.
The high court in its 5-4 ruling from June in Michigan v. EPA said the agency should have considered costs upfront, rather than later on when it set the rule's actual emissions limits. The court then remanded the issue to the U.S. Court of Appeals for the District of Columbia Circuit, which has agreed to leave the rule in place while the agency works on crafting the cost review.
The A&N finding required under air toxics section 112(n)(1)(A) of the law is unique to the electric generating unit (EGU) sector, and therefore there is no direct precedent for EPA to follow on how to craft a cost review. As a result, some observers have suggested that appellate judges in eventual expected litigation over the final version of the cost assessment will likely defer to the agency's discretion on how it did the review.
In the draft cost review, which EPA took comment on through Jan. 15, the agency 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 MACT rule. Instead, the agency finds it is still A&N to regulate utilities with a MACT, based on analysis conducted for its original regulatory impact assessment which reviewed the costs and benefits of the rule.
However, in Jan. 13 comments, Ohio AG Mike DeWine (R) says the proposed cost assessment "appears to represent a preordained conclusion to justify an already promulgated regulatory regime."
DeWine claims EPA issued the cost review "without entertaining the possibility of a different MATS final rule" and instead intended to underscore the need for its existing MACT. DeWine says this violates "the plain language of the statute and the clear mandate of the Supreme Court by placing the proverbial cart before the horse -- regulating EGUs without first considering all relevant costs." He indicates that other states AGs will also submit comments making similar arguments. DeWine implies, but does not explicitly state, that the MACT rule itself is therefore invalid, arguing that "final standards need to be informed by cost conclusions that were not preordained."
Cost Analysis
DeWine further says that EPA's cost analysis methodology is flawed. The agency in its proposed finding looked at costs of compliance to the utility industry, but intentionally stopped short of a full cost-benefit analysis, having conducted such an analysis once already as part of the MACT rulemaking itself. The agency said the Supreme Court does not require such a full accounting, but DeWine faults the agency's approach.
"Because there currently is no valid appropriate and necessary finding, if EPA intends to regulate EGUs under [air law section 112] it needs to conduct a proper and thorough analysis -- using all current, relevant, and available data -- as to whether regulation is necessary and appropriate," he writes.
He further takes issue with EPA's reliance on "co-benefits" to justify the MACT rule, which apply to a pollutant -- fine particulate matter -- that is not targeted as a hazardous air pollutant (HAP) by the air law's air toxics provisions. Also, DeWine argues that the agency has failed to examine the interplay between the MACT rule and its Clean Power Plan, the agency's greenhouse gas standards for power plants.
Another critic of EPA's approach is Susan Dudley, a former White House official under President George W. Bush and now director of the George Washington University Regulatory Studies Center. In her Jan. 11 comments, Dudley also takes issue with EPA's limited cost analysis and reliance on co-benefits.
EPA in its revised finding divides the estimated compliance cost ($9.6 billion per year) by overall power sector retail sales and overall power sector capital expenditures. It concludes that costs would be between 2.7 percent and 3.5 percent of sales, and between 3.0 percent and 5.9 percent of capital expenditures. The agency also estimates that the retail price of electricity will increase on average 3.1 percent, with a range of 1.3 percent to 6.3 percent, Dudley notes. "Based on these statistics, EPA concludes that costs to the power sector are reasonable."
However, EPA's choice to analyze the electric generating sector as a whole, rather than the mainly coal-fired power plants affected by the rule, in addition to its reliance on co-benefits, undermines the agency's position and does not comply with the Supreme Court's opinion, Dudley writes.
EPA's "preferred method of comparing [power plant] costs to total power sector sales or capital expenses not only appears to have methodological problems that bias the resulting percentages, but it does not address the Court's direction to balance the harm of the regulation against the good," Dudley writes.
The National Mining Association (NMA) in Jan. 15 comments echoes DeWine's observation that EPA cannot rely on a post-hoc rationalization of implementation costs in its A&N finding, and also Dudley's observation that EPA spreads the costs across the power sector to dilute the impact on coal generation. "EPA cannot mask the impact of the rule by spreading those impacts over the entire power sector," NMA says.
NMA also says EPA ignores the wave of coal plant retirements that can be attributed to the MACT. "Four years after MATS was issued, with the damage the rule caused in the coal industry all but complete, EPA maintains its preposterous view reached in the MATS Regulatory Impact Analysis that the rule will have little effect on coal. EPA has no new analysis to support this assertion as no such analysis can be constructed," the group says.
Groups' Support
Despite the criticisms, some of the comments offer support for the cost finding. For example, the Northeast States For Coordinated Air Use Management (NESCAUM), a regional air regulators' body, in Jan. 14 comments says, "NESCAUM supports EPA's cost approach in the proposed supplemental finding, as it is not unlike what a number of states have done in their own similar rulemakings that pre-date EPA's Mercury and Air Toxics Standards."
Implementation costs for the rule were if anything overstated in EPA's early analysis, the group says. "EPA's prospective technology cost estimates for MATS are conservative. Actual costs for power plants that are coming into compliance with MATS by April 2016 are now estimated to be about $2 billion annually, which is less than one-quarter of EPA's prospective annual cost estimate of $9.6 billion," NESCAUM says.
Further, states acknowledge EPA's argument that some of benefits of reducing HAPs such as mercury are too difficult to express in monetary terms in a cost-benefit analysis.
The Wyoming Outdoor Council, an environmental group, in Jan. 8 comments agrees with NESCAUM's overall conclusion that the A&N finding is correct, backing the agency's approach. "The EPA has done a careful and thorough analysis of the costs that would be entailed in implementation of its previously developed [MATS] rule, and appropriately concluded that based on this analysis it is 'appropriate and necessary,' to regulate these emissions," the group says.
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Gov. Brown's Agenda Lacks New Climate, Water Programs
Jan 22, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California Gov. Jerry Brown (D) laid out his agenda for 2016 on Jan. 21, calling for continued fiscal restraint but lacking any new climate and water initiatives.
“You are not going to hear me talk today about new programs,” Brown said in his state of the state address. “Rather, I am going to focus on how we pay for the commitments we have already made.”
In lieu of new environment-related proposals, Brown referenced achievements in 2015, including enactment of S.B. 350, which increases the state's renewable energy standard from 30 percent to 50 percent and calls for doubling the energy efficiency of existing buildings, both by 2030, as examples of how California climate policies are leading the way.
State Senate Pro Tempore Kevin de Leon (D) told reporters he isn't disappointed that the governor said he in not proposing new programs for 2016.
2015 Big Year for Climate
“The past year was huge for climate change policy, and Brown made it clear he intends to execute California's vision to address climate change in the coming year,” he said. “We're excited to work collectively to execute it.”
In his address, Brown said “the Paris climate agreement was a breakthrough” in efforts to address climate change. More than 100 states, provinces and regions signed on to the pact delivered in Paris, agreeing to bring per capita greenhouse gases down to two tons per person, he said.
“With S.B. 350 we're well on our way,” Brown said.
As for water issues, Brown said voter approval of the $7.5 billion water infrastructure bond in November and implementation of his five-year Water Action Plan established “a solid program to deal with the drought and longer-term challenges of using our water wisely.
No Magic Bullet for Water Issues
“There is no magic bullet, but a series of actions must be taken,” Brown said. “We have to recharge our aquifers, manage the groundwater, recycle, capture stormwater, build storage and reliable conveyance, improve efficiency everywhere, invest in new technologies—including desalination—and all the while recognize there are some limits.
In a written statement, State Sen. Lois Wolk (D) said she is pleased about the governor's continued commitment on water management issues.
Brown's mention of the need to build “reliable conveyance,” a reference to the proposed delta tunnels project, and his Jan. 7 budget proposal concern Wolk, however.
“I caution against the Governor's proposal to use state budget funding to push the Delta Tunnels into the Delta Plan, prior to completion of the environmental analysis and review,” Wolk said in a written statement. “Doing so would compromise the plan's credibility and the future of the Delta. I will be closely following this, as well as any other plans for the Delta in the year ahead.”
Earlier this month, Brown said the tunnels project, now called the California Water Fix, is essential to build a sustainable water future for the state.
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Senate Fails to Override Veto of Water Rule Resolution
Jan 22, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
The Republican-controlled Senate was unable Jan. 21 to override President Barack Obama's veto of a congressional resolution to overturn a rule seeking to clarify which waters can be regulated under the Clean Water Act.
The Senate needed 67 votes to override the president's veto, and 60 votes to even bring the question to the floor. The measure to bring the measure to the floor fell short, 52-40.
Obama vetoed a joint resolution of Congress (S.J. Res. 22) on Jan. 19 that would invoke the Congressional Review Act to overturn the Clean Water Rule promulgated June 29, 2015, by the Environmental Protection Agency and the U.S. Army Corps of Engineers (12 DEN A-17, 1/20/16).
Clarifying ‘Waters of the U.S.'
The rule seeks to clarify what is meant by the term “waters of the U.S.” (WOTUS) because those resources are the ones subject to federal permitting requirements under the Clean Water Act. Opponents of the rule, including dozens of states and business and agriculture groups, say the agencies' definition goes too far and covers wet areas that Congress did not intend for Clean Water Act protections.
Before the vote, Senate Majority Leader Mitch McConnell (R-Ky.) accused the White House of spinning the rule as “some clean water measure” when ‘it's really a federal power grab clumsily masquerading as one.”
But Minority Leader Harry Reid (D-Nev.) countered that the Senate was wasting “valuable time” attacking clean water protections while Flint, Mich., remains in a state of emergency because of lead contamination in its drinking water supplies.
“No American should have to worry about drinking safe water in America,” Reid said.
Outcome Expected
Republicans in both chambers expected that the Senate wouldn't have the votes to override the veto, but they wanted to send Obama a message that a bipartisan majority of Congress is against the rulemaking. The Senate passed the resolution in November, while the House passed it Jan. 13.
Prior to the vote, Sen. Shelley Moore Capito (R-W.Va.) told Bloomberg BNA that she was “doubtful” the Senate would be able to override the veto. But she emphasized that the Senate's action in passing the resolution even by a simple majority, as it did in November, would send a message to the president: “You are overreaching with these regulations” that are adversely affecting individuals, small businesses, and farmers.
“I firmly believe that we need to pull back on this regulation that is impacting agriculture, construction, mining, and has too broad a reach,” Capito said.
In contrast to Capito, Sen. Sherrod Brown (D-Ohio) told Bloomberg BNA that he supported the presidential veto and agreed with Reid that the vote was a waste of the Senate's time. “We made a lot of progress, and we shouldn't start again,” Brown said.
Brown was joined by Sen. Benjamin Cardin (D-Md.) in defending the Clean Water Rule, saying “it lays out the ground rules” for what waters and wetlands need to be protected, rules that were needed to clarify following U.S. Supreme Court decisions that left uncertainty in their wake for the regulated community, including farmers.
Pledge to Cut Red Tape
Sen. Joni Ernst (R-Iowa), who authored and introduced S.J.Res. 22, reminded Obama of the promise he made during the State of the Union address to “cut red tape,” saying the veto of the resolution was counter to that pledge. (210 DEN A-2, 10/30/15).
“I'm disappointed that President Obama and Senate Democrats have repeatedly ignored the legitimate concerns raised by folks across the country who are directly impacted by the WOTUS rule and chose instead to stand with an unchecked federal agency in Washington, D.C.,” Ernst said in a statement after the vote.
Irrespective of the congressional vote, the Clean Water Rule isn't being implemented yet. That is because the U.S. Court of Appeals for the Sixth Circuit stayed the rule nationwide, pending an imminent decision on whether a district court or an appeals court is the best venue to hear the multiple challenges to the rule.
To date, 32 states have filed challenges to the rule along with more than 20 national, regional and state businesses, agriculture, manufacturing and building groups.
In a separate action, Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, announced that he has asked the Justice Department to investigate allegations that the Army Corps and the EPA illegally lobbied on behalf of the rule through various social media campaigns (see related story).
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