Preview Newsletter
ACC PM 2/5/16
-
(ACC Mentioned) WRAP More Than Doubles At-Store Collection of Plastic Film in Washington City
Feb 5, 2016 | Recycling Today
A Wrap Recycling Action Program (WRAP) campaign in Vancouver, Washington, helped to more than double collection of plastic film wraps and bags through return-to-retail recycling programs, according to a new study conducted with the city of Vancouver’s Environmental Resources Division. -
EPA Scientists, Risk Assessors Weigh Complexities Of Exposure Analyses
Feb 5, 2016 | Inside EPA
By Maria Hegstad
EPA scientists and risk assessors are weighing the complexities of exposure assessments and seeking to overcome research gaps and needs in addressing the complicated issue, an effort that stems in part from the challenges the agency faced in recent risk reviews where chronic risk estimates were based on developmental endpoints. -
Official: Massive LA-Area Gas Leak Could be Capped in a Week
Feb 5, 2016 | Washington Post
By Brian Melley (AP)
A California official outlined a plan Thursday to cap a massive Los Angeles-area gas leak by the end of next week. -
Danger Lurks at Chlorine Bleach Plants -- Greenpeace
Feb 4, 2016 | E&E Greenwire
By Sam Pearson
Chlorine bleach plants in the United States pose a risk to major cities and should face new regulatory requirements to reduce the stock of hazardous chemicals they keep on-site, according to a new report from the advocacy group Greenpeace. -
State Floats Conservative Compact to Avoid Climate Rule
Feb 5, 2016 | E&E Climatewire
By Kristi E. Swartz
Georgia has become the latest state to entertain a proposed Interstate Power Compact to insulate itself from U.S. EPA's Clean Power Plan, aimed at reducing carbon emissions from existing power plants. -
FERC Ruling Seen as Boon for Clean Power Plan
Feb 5, 2016 | E&E Greenwire
By Robin Bravender
The Supreme Court's recent move to uphold a federal energy conservation rule bodes well for the Obama administration's Clean Power Plan, environmental lawyers say. -
Supreme Court Intervention Would Undercut Climate Action -- EPA
Feb 5, 2016 | E&E Energywire
By Ellen M. Gilmer
Halting U.S. EPA's landmark Clean Power Plan would delay critical greenhouse gas reductions and undermine a global effort to address climate change, the Obama administration told the Supreme Court yesterday. -
E&E Daily's Hess Discusses Latest on Senate Bill Impasse
Feb 5, 2016 | E&E TV
Will the Senate be able to work through the current impasse on its bipartisan energy package? On today's The Cutting Edge, E&E Dailyreporter Hannah Hess explains how negotiations on aid for Flint, Mich., are impacting the energy bill's prospects. She also discusses Senate leadership's strategy for moving past the current roadblock. -
Calif. Regs Seek to Prevent More Aliso Canyon-Style Leaks
Feb 5, 2016 | E&E Climatewire
By Debra Kahn
California regulators are readying rules to control methane from oil and gas operations, including underground natural gas storage tanks like the one currently leaking in Southern California. -
EPA Floats 3-year Extension for State Haze Plans
Feb 5, 2016 | E&E Greenwire
By Sean Reilly
States would get another three years to rework their regional haze plans under a U.S. EPA draft proposal awaiting review by the White House Office of Management and Budget. -
Industry Challenges EPA Toxic Refinery Emission Limits
Feb 4, 2016 | E&E Greenwire
By Sean Reilly
Two oil industry trade groups are challenging new U.S. EPA limits on toxic refinery emissions with the U.S. Court of Appeals for the District of Columbia Circuit. -
New EPA Standard Doesn't Factor in Background Ozone -- Texas
Feb 5, 2016 | E&E Greenwire
By Sean Reilly
Texas is continuing its drumbeat of criticism of U.S. EPA's new ozone standard in a new court filing that asks whether federal regulators ignored relevant scientific research and whether they failed to consider the potential impact of background ozone outside the state's control. -
Ore. Waited to Tell Public of Manufacturer's Emissions
Feb 5, 2016 | E&E Greenwire
Oregon regulators installed an air monitor next to a Portland glass manufacturer but waited weeks to tell the public what it found. -
EAB Poised To Hear Suit Testing EPA Deference For CWA Nutrient Permits
Feb 5, 2016 | Inside EPA
By David LaRoss
EPA's Environmental Appeals Board (EAB) will hear oral argument next week in a novel Clean Water Act (CWA) permit challenge that could set new standards for how regulators must justify discharge limits on nutrients and test the agency's deference on crafting such permits, though EPA claims the challenge has major factual errors.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News - There are no clips to report at this time.
Energy and Environment News
-
(ACC Mentioned) WRAP More Than Doubles At-Store Collection of Plastic Film in Washington City
Feb 5, 2016 | Recycling Today
A Wrap Recycling Action Program (WRAP) campaign in Vancouver, Washington, helped to more than double collection of plastic film wraps and bags through return-to-retail recycling programs, according to a new study conducted with the city of Vancouver’s Environmental Resources Division. The report also found that plastic bag contamination at a local material recycling facility (MRF) by residents who had received regional educational outreach materials decreased by 75 percent.
The American Chemistry Council’s (ACC) Flexible Film Recycling Group (FFRG) partnered with the city of Vancouver, Clark County, Safeway and Trex Co. to implement this program, known as “Recycle Wrap/Beyond Bags.” The campaign sought to increase consumer awareness and recycling of many types of flexible polyethylene (PE) packaging, known as “film,” in select Vancouver area Safeway stores while decreasing unwanted plastic bags/film placed in curbside carts.
According to the study, the key outcomes of the campaign included a 125 percent increase in amount of plastic wraps, films and bags collected at stores; a 500 percent increase in collection of consumer product packaging beyond bags (e.g., case wrap, product wrap, bread bags, produce bags, etc.) at stores; a 75 percent reduction in plastic bag contamination at a local MRF by customers who received campaign outreach materials; and an insignificant (less than 2 percent) increase in contamination at stores.
“This was really a model campaign,” says Shari Jackson, director of ACC’s Flexible Film Recycling Group. “It goes to show how effective WRAP can be when we all work together. We showed we could get the word out to increase wraps, bag and film collection at retail stores with negligible contamination.”
The return-to-store WRAP public outreach campaign and technical support tools fit seamlessly with a Recycling Done Right campaign and grant-funded waste characterization study conducted throughout Clark County, Washington, including within the city of Vancouver, according to the ACC.
“Leveraging partnerships, we were able to educate residents to keep this material out of our curbside program and divert it to the retail drop-off infrastructure, where it belongs,” says Tanya Gray, solid waste supervisor for the city of Vancouver. “Importantly, these efforts have raised awareness of the ease and opportunity to recycle a variety of plastic film beyond the bag.”
ACC describes WRAP as “a scalable program with national reach,” adding that it continues to gain momentum. In addition to Vancouver, WRAP just released the results of a similar public education campaign in Milwaukee, which also showed a measurable increase in at-store collection of PE film. Furthermore, North Carolina recently announced that it plans to implement a WRAP program this year, and additional states are expected to announce soon, the organization adds.
Plastic film is one of the fastest growing areas of recycling in the United States. The “2014 National Postconsumer Plastic Bag and Film Recycling Report,” authored by Sonoma, California-based Moore Recycling Associates Inc., found an 80 percent increase in plastic film recycling since just 2005. During that time, film recycling has grown from 652 million pounds to 1.17 billion pounds annually. Based on the U.S. Environmental Protection Agency data, the recycling rate for film has grown from 6.6 percent to 17 percent of production.
Currently, more than 90 percent of Americans have access to a local program that collects PE wraps and bags, primarily at more than 18,000 major grocery and retail stores, the ACC says.
-
EPA Scientists, Risk Assessors Weigh Complexities Of Exposure Analyses
Feb 5, 2016 | Inside EPA
By Maria Hegstad
EPA scientists and risk assessors are weighing the complexities of exposure assessments and seeking to overcome research gaps and needs in addressing the complicated issue, an effort that stems in part from the challenges the agency faced in recent risk reviews where chronic risk estimates were based on developmental endpoints.
The agency officials debated the topic at a Jan. 27-29 workshop held at EPA's Research Triangle Park, NC, facility. During the event, Dave Bussard -- a division director in the EPA Office of Research and Development's National Center for Environmental Assessment (NCEA) -- said complex exposures can have significant implications for health outcomes used in risk assessments, which are used in crafting agency regulations or cleanup standards.
"There's two issues that are overlapping and a couple of drivers for this" workshop, Bussard said. Explaining the complexity, he said, "There's periods of lifestage where people are particularly sensitive. Short-term, episodic, fluctuating exposures, how to assess those . . . how to take that into consideration" is a question.
Bussard said one driver for the workshop has been the influential Integrated Risk Information System (IRIS) assessments that NCEA staff have completed in recent years based on developmental effects. The IRIS studies are toxicological assessments that contain risk estimates for chronic exposure, the most common type of risk scenario EPA considers, in part of an effort to be health protective and conservative. "We've been doing IRIS assessments where the developmental effect is the driver, and that's okay," Bussard said. But he added that it does create "issues."
One well-known example is EPA's 2011 IRIS assessment of trichloroethylene, a once common industrial solvent and degreaser. EPA's chronic risk estimate is based on a toxicological study showing fetal cardiac deformations. The risk calculation remains highly controversial as industry groups and other critics have protested that a chronic risk estimate should not be based on such an effect that only occurs during the earliest weeks of existence, and continue to find avenues to challenge it.
But supporters argued that the effects sustained in utero result in permanent damage that lasts for a lifetime. Still, the new risk estimates drove much more stringent cleanup levels, leading EPA headquarters to consider crafting policy on how its Superfund and waste offices should manage cleanups including TCE, while EPA's Region 9 office and some states have begun to implement cleanups based on the 2011 IRIS risk calculation.
Bussard also outlined another driver for the workshop, "that exposure assessment keeps evolving. These are not necessarily new issues. But as we get more real time exposure monitoring, as people see exposure levels bouncing around, people may have more questions. . . . We're very good at coming up with concentrations that are protective in terms of a long term constant exposure. . . . But real world exposures vary."
Exposure Assessment
Bussard's boss, NCEA Director Ken Olden, also touted the workshop as responding to the complexities of exposure assessment and the impacts different types of exposures could have on health outcomes. Olden also argued that the workshops are an opportunity for EPA scientists to remain at the forefront of their fields.
"It is not enough for the agency to proclaim that we use the best science that is available for risk assessment," Olden said in his opening remarks. "We do do that. But we have additional responsibilities and that is identifying the research gaps and needs. And that is what these workshops are all about."
Olden noted that he has decided to host three to four workshops on scientific issues, in addition to holding a series of bimonthly workshops on IRIS assessments in various stages of progress.
He pointed to the previous scientific issues workshops the office has hosted in the past nearly two years, among them workshops addressing how epigenetics and systematic review could improve risk analyses.
On the issue of temporal exposures, Olden said, "Understanding exposure . . . is what risk assessment is all about. Timing is one, the other is dose, or intensity of exposure. And the other is the duration of the exposure. It turns out that we know very little about timing. What is critical for adverse health outcomes. We've known for years that there are critical windows of exposure."
Some meeting participants floated the idea of calculating less than chronic risk estimates in agency analyses when warranted, for example, in IRIS assessments.
Stan Barone, a risk assessor in EPA's toxics office, said acute and sub-chronic risk estimates are needed in program offices, depending on the exposure scenario.
In response to a question from an NCEA risk assessor, Barone noted that some years ago, "NCEA did a pilot project developing acute IRIS values. That particular effort we did not pursue because of guidance and directives from [the White House Office of Management and Budget]."
But Barone said the "issue for the program is still a need. Many times what we are trying to assess is hazard and exposure -- acute, subacute, subchronic and chronic. We are still doing that work in the programs. How that is done and the resources to do that could benefit from collaboration."
Reference Doses
Keeve Nachman, director of the Food Production and Public Health Program at Johns Hopkins Center for a Livable Future, separately asked, "Should multiple [reference doses (RfDs) or reference concentrations (RfCs)] be available, instead of just one for the entire population? I think that's something that's open for debate." EPA's RfDs and RfCs to date have generally been chronic risk estimates. They represent the dose at which the agency anticipates, when consumed or inhaled daily over a lifetime, will not lead to adverse health effects.
Helen Goeden and Lauren Zeise, toxicologists and risk assessors with Minnesota Department of Health and California's Office of Environmental Health Hazard Assessment described their states' pilot efforts to incorporate more of the complexity of exposure in their risk analyses.
Goeden described crafting water guidance for Minnesota, known as health-based drinking water guidance (HBGs), where "we tried to incorporate timing of exposure," into the standards. Goeden said new EPA guidance on assessing children's health risks in 2005 and 2006 led Minnesota risk assessors to question their standard equation for calculating drinking water guidance, as EPA's guide suggested changes should be made to the RfD, relative source contribution (RSC) and duration of exposure estimates.
"To date, we've done 73 chemicals," making these changes, Goeden said. "For 53 of those, almost three-quarters [of the chemicals], the data was there, and we were able to develop short-term, subchronic and chronic values. For a few, we were also able to do acute values. For the other 20 chemicals, the short-term data were more limited and we only calculated one or two tox values."
Goeden described the impact of the state assessors' efforts, saying, "The RfDs decreased with increasing duration [of exposure]. This was very reassuring, that chronic [doses] were the lowest doses," she said. She noted that there were some exceptions to this, such as with developmental endpoints, where instead, the shorter duration RfD was the lowest, or most strict, RfD calculated for the chemical.
Water Intake
Goeden added that the group also adjusted the RSC to consider the higher relative intake of water between infants and adults -- with exceptions where chemicals were very volatile or if they were included in a consumer product product commonly used on infants. "Unlike the RfDs, the HBGs did not decrease with duration," she said. "It was surprising but it's simple math. Chronic HBGs were lower than shorter duration for 28/53 chemicals."
Goeden noted that finding data could be a challenge, as well as the added time that the extra analyses took. "I have to give credit to our managers when we proposed this. They said, 'This looks like a lot of work, will it be worth it?' And we said, 'We don't know, we haven't tried it.'"
Despite the challenges, Goeden spoke optimistically about the changes. She said their analysis of the efforts "really demonstrate the importance of evaluating shorter term exposures to ensure protectiveness. In the absence of a shorter term RfD, the chronic RfD is a reasonable screening level."
Goeden said that risk managers have also been supportive of the additional risk estimates. "Many of our chemical managers really appreciate having more than one number. When it was just one [chronic duration risk estimate], they assumed they had time to come up with a remedy. This gives better perspective. It gives risk managers bigger and better context, which I think makes risk managers feel better. But sometimes, the short term numbers do cause problems. It's mixed," she said.
-
Official: Massive LA-Area Gas Leak Could be Capped in a Week
Feb 5, 2016 | Washington Post
By Brian Melley (AP)
A California official outlined a plan Thursday to cap a massive Los Angeles-area gas leak by the end of next week.
The final phase to intercept the ruptured Southern California Gas Co. well is expected to begin Monday, said Wade Crowfoot, an adviser to Gov. Jerry Brown. If all goes according to plan, it should to take contractors about five days to permanently seal the well that has been leaking since October.
The announcement at a public meeting is ahead of the company’s worst-case prediction that it would be plugged by the end of the month. The well has been leaking for 15 weeks and has been a major disruption for the upscale Porter Ranch community in the San Fernando Valley section of Los Angeles.
The well blowout at the largest natural gas storage facility in the West has uprooted thousands of residents and spewed more than 2 million tons of climate-changing methane in what environmentalists have said is the worst crisis since the BP oil spill in the Gulf of Mexico in 2010.
Residents have complained of headaches, nausea, nosebleeds and other symptoms. Public health officials blame the woes on an odorant added to the gas, but they said there shouldn’t be long-term health problems.
The governor declared an emergency last month, and several public agencies are investigating the leak and have ordered the company to stop it.
Crowfoot said that once the leaking well is intercepted a mile-and-a-half underground, mud and fluids will be pumped into it to stop the gas that is gushing out.
When no gas is leaking, cement will be pumped down the old well to permanently plug it, Crowfoot said. It should take a couple days for the cement to cure. When state regulators determine the plug is solid and the well is not leaking, they will declare it killed, he said.
SoCalGas Vice President Gillian Wright cautioned that the outlined plan was tentative and several steps had to be taken before it could be put in place.
“We are very close to the end of the leak, however we are also in the most technically demanding phase of the work,” Wright said. “So that’s a tentative schedule. It’s not a definitive schedule.”
The utility paid $50 million through December to relocate residents and try in vain to plug the leak, according to financial regulatory filings. It hasn’t provided a cost update since. But the number of relocations has soared to 4,400 households, and the company is facing more than two dozen lawsuits from residents and several public agencies.
SoCalGas was charged this week by the Los Angeles district attorney with misdemeanor criminal charges for failing to notify state emergency officials about the leak for three days after it was detected on Oct. 23.
___
Corrects story to say that 4,400 households, not residents, have been relocated.
-
Danger Lurks at Chlorine Bleach Plants -- Greenpeace
Feb 4, 2016 | E&E Greenwire
By Sam Pearson
Chlorine bleach plants in the United States pose a risk to major cities and should face new regulatory requirements to reduce the stock of hazardous chemicals they keep on-site, according to a new report from the advocacy group Greenpeace.
Greenpeace identified 86 bleach plants it said use chlorine gas, a hazardous chemical that must be shipped in large quantities. As a result, the chemical can be left in unattended railcars, where it's vulnerable to sabotage or theft, the group said.
Plants that operate this way include Kuehne Chemical Co. Inc. in South Kearny, N.J., Allied Universal Corp. in Miami and Petra Chemical Co. in Dallas, according to the report. At least 10 plants have more than 1 million people living close enough that they could be harmed by a worst-case mishap at the sites, the group said.
The report comes as U.S. EPA prepares to issue a proposed rule updating its risk management program. The program, authorized under a 1990 clean air law, requires facilities handling large quantities of specified chemicals to report their storage levels and plan for a worst-case release.
The pending rule was sent to the White House Office of Management and Budget for review late last year. EPA has said it expects to propose the rule early this year.
Bleach plants are a long-standing concern for chemical safety groups, though the chemical industry says the plants have boosted safety to address terrorism fears in the aftermath of Sept. 11, 2001.
Over time, some companies have switched to different production methods to produce chlorine bleach in a way that keeps smaller quantities of toxic chemicals on-site.
Despite the progress "some chlorine bleach manufacturers continue to use chlorine gas, putting almost one in every five Americans in danger of a potential release from a substance so toxic it has been used as a chemical weapon in the past," Greenpeace legislative director Rick Hind said in a statement.
In a statement, the Chlorine Institute called the claims "tired, alarmist arguments of the past."
"Clearly, the world needs bleach, which must be produced, shipped and used safely and securely," the group said. "Bleach producers take this mission very seriously -- in fact, it's their job."
-
State Floats Conservative Compact to Avoid Climate Rule
Feb 5, 2016 | E&E Climatewire
By Kristi E. Swartz
Georgia has become the latest state to entertain a proposed Interstate Power Compact to insulate itself from U.S. EPA's Clean Power Plan, aimed at reducing carbon emissions from existing power plants.
The measure is from model legislation introduced by the Koch brothers-funded Texas Public Policy Foundation (TPPF) and is one of two currently in play in the United States. It is the latest attempt to deflate the landmark rule, which 27 states and dozens of groups representing industry and labor organizations have sued to stop.
Georgia is among those states, but its Environmental Protection Division also is in the middle of a series of stakeholder meetings to craft a state plan to meet EPA targets. By adopting the interstate compact, such a plan would only have to focus solely on improving the efficiency or "heat rate" at coal-fired power plants.
Some argue that this component of the Clean Power Plan is inside the traditional fence line of EPA air regulation.
Georgia EPD officials said the state will submit an initial plan to meet EPA's September deadline but also ask for a two-year extension. While the state has not made key decisions on how to shape that plan, officials have made no indication that they would write a limited one that focuses on only one part of the rule.
EPD Assistant Director Mary Walker said the agency agrees with the compact's general premise but did not think it was the best way to challenge the rule, given that the state is suing and working on its own plan.
"Georgia's path is to pursue both routes simultaneously -- pursue the very real questions surrounding the legality of the rule in the courts but at the same time do the work needed to develop a plan for Georgia in the event that the rule is upheld," Walker said.
Conservative models
The compact is a different twist on other model legislation that has served as a referendum to the Obama administration's signature climate rule. Last year, more than half of the states considered bills crafted from model language by the conservative American Legislative Exchange Council, with some being signed into law.
Those policies would require legislative approval of any state plan before it was submitted to EPA.
Conservative political advocacy group Americans for Prosperity also is targeting the Clean Power Plan at the federal and state level this year. One of AFP's priorities will be getting state leaders to resist submitting compliance plans to EPA, an AFP official said (see related story).
TPPF unveiled its interstate compact last summer (EnergyWire, July 22, 2015) and published a final version in October. It since has modified that version to make two key changes.
The first says states will not submit a plan until the U.S. Supreme Court makes its decision on the legality of the Clean Power Plan. Secondly, it directs states to ask for a two-year extension to file those plans.
Doug Domenech, director of TPPF's Fueling Freedom Project, said his group has been working with a loose coalition of others who oppose the Clean Power Plan. He considers the compact to be one tool in an arsenal to do that.
"States are the ones who have to push back," he told EnergyWire.
Domenech testified before the Missouri House Energy and Environment Committee last month.
Ga. defends 'federalism'
In Georgia, lawmakers in the House and Senate each passed versions of a resolution urging EPA to withdraw the Clean Power Plan last year. The proposed interstate compact was filed Monday and quickly assigned to the Senate Natural Resources and the Environment Committee for a hearing yesterday. Its main sponsor is a rising star in the Senate, and two of the other signatures belong to ranking members.
"Ultimately, the idea is to allow states to live in a world that is not subject to EPA overreach and basically burdening our economies beyond the state of the Clean Air Act itself," said Georgia Sen. Charlie Bethel (R).
Bethel represents an area in north Georgia with a strong manufacturing economy. The rule threatens the community's economic viability, he said.
Bethel knows the ins and outs of the compact, including that states that wish to join must adopt the legislation verbatim. Congress also must approve it.
"So [states] have that freedom, the traditional federalism idea of being able to make your own plan, maybe it would be good for the Southeastern states to have a plan, there's a lot of flexibility if you have a compact in place," he told EnergyWire.
Senate President Pro Tempore David Shafer (R) said Bethel's explanation of the compact motivated him to be one of the co-sponsors.
Sen. Jeff Mullis (R), Rules Committee chairman, was a little more blunt toward EPA.
"If they weren't acting like the Third Reich, I would be more inclined to be friendly with them," he said. "We all want clean air and clean water, all of those kind of wonderful environmental-friendly natures, but I think they overreach."
Despite the vitriol, Natural Resources Committee Chairman Frank Ginn (R) said early in the meeting his plan was to assign the bill to a study committee. Meeting attendees included clean energy advocates, lobbyists for Georgia Power and the Georgia Electric Membership Corp., and state EPD officials.
Representatives from the electric utilities did not testify, and Georgia Power spokesman Jacob Hawkins said the company is still reviewing the bill.
"We continue to believe that the EPA's overreach in creating unworkable mandates places an unnecessary burden on our customers," he said.
-
FERC Ruling Seen as Boon for Clean Power Plan
Feb 5, 2016 | E&E Greenwire
By Robin Bravender
The Supreme Court's recent move to uphold a federal energy conservation rule bodes well for the Obama administration's Clean Power Plan, environmental lawyers say.
With U.S. EPA's rule to cut power plants' greenhouse gas emissions already mired in lawsuits and widely expected to wind up in the Supreme Court, lawyers on both sides are scouring the justices' recent environmental decisions for clues about how they'll handle the case.
Some supporters of the EPA rule hailed the high court's recent opinion upholding the Federal Energy Regulatory Commission's rule as a promising sign that the courts will deem EPA had authority to issue the contentious power plant regulation.
"This was a big environmental win for FERC and also for the environmental community," Harvard Law School professor Richard Lazarus, a well-known environmental attorney, said today at an environmental law event in Washington, D.C.
The opinion in the FERC case "shows that you can address climate in a way very consistent with EPA's Clean Power Plan," he added.
In its 6-2 decision last month, the justices revived FERC's contentious "demand-response" rule that had been thrown out by a lower court. Challengers argued that FERC had overstepped its regulatory authority, but the majority opinion authored by Justice Elena Kagan found that FERC indeed had that authority, with "room to spare" (Greenwire, Jan. 25).
"Here we have an instance where the court takes very capacious language and they allow a federal agency to address a problem which no one would have ever thought Congress was thinking about at the time that language was written," Lazarus said today at the event hosted by the American Law Institute and the Environmental Law Institute.
In the legal challenges to the Clean Power Plan -- now before the U.S. Court of Appeals for the District of Columbia Circuit -- "this is the language which EPA supporters are going to go to," he added.
Many other backers of the EPA rule were similarly encouraged by the FERC case's majority opinion, which was notably endorsed by Republican appointees Chief Justice John Roberts and Justice Anthony Kennedy.
Vickie Patton, general counsel of the Environmental Defense Fund, said the FERC opinion is an important one that serves as "a wake-up call about the court incorporating 21st-century America into its jurisprudence."
The court found the FERC rule "is not an agency overreach," Patton said yesterday at the environmental law event. Rather, she said, the court reasoned, "This is an agency being responsive to the market, to the world around it. That's what it's doing; that's what we want agencies to do. It's precisely what ... the EPA is doing."
'Wishful thinking'?
Clean Power Plan opponents disagree and point to other recent Supreme Court decisions as backing for their arguments.
Tom Lorenzen, of Crowell & Moring, said that while the FERC opinion "looks like it does support the idea of broad federal authority to regulate the grid -- including demand for electricity," it's "very particular to the Federal Power Act," the law governing interstate power markets.
"It certainly says that FERC can do this under the Federal Power Act, but it doesn't speak at all to what authority EPA has under the Clean Air Act," added Lorenzen, a former Justice Department lawyer representing power cooperatives challenging the Clean Power Plan in court.
Scott Segal, an attorney at Bracewell who represents utilities, said "reading too much into the decision on the environmental side of the ledger may just be wishful thinking on the part of [Clean Power Plan] advocates."
Segal added that the justices' reasoning in the FERC case should give "no comfort at all" to backers of the power plant rule. He also said the distinction between the Federal Power Act and the Clean Air Act is important.
"In construing the Clean Air Act, on a variety of fronts, from expansive reads of authority to concerns over cost, the Supreme Court has indicated a degree of skepticism that ought to worry those supporting the [Clean Power Plan]," Segal said.
Opponents of the rule point to several other recent high court decisions that they say bolster their arguments against the climate regulation.
That includes the justices' decision in June to knock down EPA's landmark rule to cut mercury emissions from power plants (Greenwire, June 29, 2015). There, the agency was reprimanded for failing to properly consider costs, but EPA is expected to soon reissue the rule after tweaking its cost considerations.
That decision rejecting EPA's rule "raises serious questions that should be of concern to the Clean Power Plan," Segal said. He also pointed to a 2014 case where the Supreme Court threw out part of EPA's air permitting program for greenhouse gas emissions (Greenwire, June 23, 2014).
Lazarus noted today that foes of the Clean Power Plan will rely on opinions in the mercury case and the major health care case, King v. Burwell, that upheld the Obama administration's health care law but raised questions about how the high court will deal with agency expertise issues.
"Within this huge win for the administration was some more words of concern for EPA," Lazarus said today.
In that case, Roberts, in his opinion for the court, wrote that so-called Chevron deference typically granted to agencies didn't apply because the health care case is "extraordinary" and centers on a question of "deep 'economic and political significance.'"
The court may also find those terms apply to the high-stakes Clean Power Plan.
"In cases with really big stakes, [Roberts] suggests, there might be reason not to be so quick to defer to the agency," said Lazarus, who's representing two former EPA administrators backing the Clean Power Plan in the D.C. Circuit.
-
Supreme Court Intervention Would Undercut Climate Action -- EPA
Feb 5, 2016 | E&E Energywire
By Ellen M. Gilmer
Halting U.S. EPA's landmark Clean Power Plan would delay critical greenhouse gas reductions and undermine a global effort to address climate change, the Obama administration told the Supreme Court yesterday.
"Granting such relief would harm the public's interests in implementing this duly-promulgated Rule, in reducing the accumulation of greenhouse gases in the atmosphere, and in preventing the risk of 'catastrophic harm,'" government attorneys wrote in a legal filing that includes extensive discussion of the merits of the case.
The defense comes as critics push Chief Justice John Roberts to freeze the divisive climate rule while the U.S. Court of Appeals for the District of Columbia Circuit considers whether it's legal. After the appeals court last month refused to issue a stay, electric utilities, business groups, coal producers and more than two dozen states made the unusual request for Roberts to step in, saying they are already facing severe economic impacts as regulators and industry aim to meet compliance deadlines (EnergyWire, Jan. 28).
The Obama administration and allies responded yesterday that a Supreme Court intervention at this stage would be unprecedented and an improper use of the high court's time and position as a reviewing court.
"The danger of premature intervention in lower-court proceedings is particularly acute here, where no court has yet analyzed the merits of applicants' claims," Solicitor General Donald Verrilli wrote. "Applicants identify no case, and we are aware of none, in which the Court has granted a stay of an administrative rule before that rule has been reviewed by any court."
The administration said it was particularly concerned about opponents' request to "toll" all the Clean Power Plan deadlines, postponing imminent deadlines as well as those that will not pass until years after the litigation is expected to be resolved.
Supporters of EPA's rule came to the agency's side, arguing in briefs that the Clean Power Plan is well within EPA's Clean Air Act authority and does not illegally tread on state regulators' turf or harm industry.
"Contrary to the Applicants' protest, the Rule does not dictate the closure of any specific power plant or deprive states of flexibility to take into account the remaining useful lives of individual plants, so long as overall emission reduction targets are met for the group of plants located within the state," a coalition of environmental groups and power companies supporting the rule said in a brief yesterday. "And again, the Rule does not begin to require any reductions from affected sources until 2022 and is not fully effective until 2030."
A coalition of 18 states, the District of Columbia and six municipalities supporting the rule added that the plan is also perfectly achievable for states without causing the irreparable harms opponents have claimed.
"Under the Rule's familiar cooperative-federalism model, State Petitioners could opt out completely from developing their own plans to implement the Rule's emission limits and rely instead on a federal plan," the group told the court, adding later: "Moreover, even for States that decide to prepare their own plans, the Rule's generous timeframes for plan submissions and compliance undermine State Petitioners' assertion that they will be forced to make significant or irreversible decisions before their claims on the merits are heard."
Plus, the states and cities said, the entire country will face irreparable harm if the rule does not take effect.
"State Respondents are continuing to experience climate change harms firsthand -- including increased flooding, more severe storms, wildfires, and droughts," they said in their brief. "The harms of climate change that the Rule is designed to mitigate are lasting and irreversible."
Forced compliance or 'red herring'?
States have until September to submit compliance plans or request two-year extensions, and emissions cuts aren't required until 2022. But opponents say states already are expending resources to craft compliance plans, and utilities are making infrastructure updates in anticipation of the rule.
In a call with reporters this week, West Virginia Attorney General Patrick Morrisey (R) said EPA's deadlines force states to "take compliance actions that are effectively irreversible, even if the Supreme Court ultimately strikes down the power plan a few years from now."
"We can't let that happen," he said. "And that's why we're pursuing this legal option, which admittedly is not typical."
Opponents of the rule say the Supreme Court may be particularly receptive to their claims in light of Michigan v. EPA, in which the court remanded EPA's plan for regulating mercury emissions from power plants to the D.C. Circuit after finding that it violated the Clean Air Act. But by the time the high court weighed in, EPA foes argue, the mercury rule had already taken its toll.
"By the time this Court rejected the legal basis of the EPA rule in Michigan, about one-sixth of all coal-fired electric generation either had retired or ... had announced retirement because of the extraordinary high cost of complying with the rule," Murray Energy Corp. and other coal producers told the Supreme Court last week.
The opponents argue that EPA is trying to ensure that broad changes take hold in the power sector even if the Clean Power Plan is eventually tossed out.
Natural Resources Defense Council attorney David Doniger told reporters yesterday that theMichigan v. EPA argument is a "giant red herring."
"The opponents are presenting this as though there was some EPA stratagem to force them to comply before they could get review in the Court of Appeals, and that's just totally wrong," he said. "Here, the deadlines are so far out for the states as well as for the power companies that it's clear everyone is going to have their day in court in the normal way, well in good time."
Doniger also noted that the mercury rule was never vacated and that the appeals court allowed it to remain in effect while EPA works to address the cost-analysis deficiency raised by the Supreme Court.
The states opposing the Clean Power Plan are expected to respond to EPA's filing today, and attorneys for both sides expect a ruling any day. Roberts may rule alone or consult with the other justices.
-
E&E Daily's Hess Discusses Latest on Senate Bill Impasse
Feb 5, 2016 | E&E TV
Will the Senate be able to work through the current impasse on its bipartisan energy package? On today's The Cutting Edge, E&E Dailyreporter Hannah Hess explains how negotiations on aid for Flint, Mich., are impacting the energy bill's prospects. She also discusses Senate leadership's strategy for moving past the current roadblock.
Transcript
Monica Trauzzi: Welcome to The Cutting Edge. Will the Senate be able to work through the current impasse on its bipartisan energy package? E&E Daily's Hannah Hess has covered all the dramatic twists of the negotiations, and she's here with the latest details. Hannah, let's backtrack to yesterday when the Senate rejected cloture on the energy package. What are the sticking points and how are the negotiations over aid for Flint, Mich., affecting the progress of this bill?
Hannah Hess: Well, hopes were high last week when Energy Chairwoman Lisa Murkowski and Sen. Maria Cantwell from Washington, the top Democrat on the panel, brought the bill to the floor. They were hoping that things could be wrapped up by the end of this week.
It's the first time the Senate has debated this much of a sweeping energy legislation in nearly a decade, but last week at the very end of the week, Democrats decided to attach this $600 million amendment to send some aid to Flint.
There have been concerns over writing a blank check in a situation like this where it's really a state and local disaster, the potential for this to look like an earmark, and Democrats, especially Michigan senators, are holding their ground here, and yesterday the Senate rejected two procedural votes to move forward on the bill.
Monica Trauzzi: So how is Chairman Murkowski handling this impasse and what does she have lined up as her next steps?
Hannah Hess: Well, Sen. Murkowski said yesterday that she's been working with Debbie Stabenow from Michigan on the issue way back since December. So when omnibus legislation was going through, she was hopeful for including some aid for Flint.
They continue to work together. Sen. Murkowski has unveiled her own amendment. There's an issue called blue slips that relates to the procedural wheelings and dealings where money bills can't originate in the Senate. So because there's funding in here, Sen. Murkowski wants to find an offset for it. Her proposal would fund the bill with a DOE loan program for clean energy technologies.
She told me yesterday that she has renewed vigor heading into the weekend where she will be sticking around with Sen. Cantwell, with Michigan senators, to keep talking about this issue.
Monica Trauzzi: What did you hear? What have you been hearing from senators this week about the prospects for the bill? What's everyone saying behind the scenes?
Hannah Hess: Well, senators from both parties are saying this is really refocusing attention on the EPA's program for giving loans to states and localities having water infrastructure issues.
A top Senate Democrat has asked the White House to include more funding for that loan program in the White House's budget next week. There's a lot of optimism on both sides, but at the same time, the window is closing. The Senate returns on Monday and their first vote is at 5:30 on a judicial nomination.
Monica Trauzzi: So things should move quickly on this? We'll know pretty soon? What are your predictions for where this goes?
Hannah Hess: Well, if a deal is coming together, it has to come together by Wednesday. Mitch McConnell has already set up a vote Wednesday evening on sanctions against North Korea. So I think that they will continue to have these serious discussions behind the scenes, and hopefully they can find another situation for giving some aid to Flint.
Monica Trauzzi: Then over on the House side, how are things progressing on aid for Flint?
Hannah Hess: On the House side, Nancy Pelosi endorsed a measure from the congressman from Flint, Dan Kildee, that would give aid particularly helping the children of Flint who have been impacted by this lead poisoning.
There's still some hesitation there on whether or not it's the federal government's responsibility to provide this funding, and also Speaker Paul Ryan has said he wants to continue to have oversight hearings. We saw the first one last week in the House Oversight and Government Reform Committee, and more are on tap.
Monica Trauzzi: Lots of moving parts in both chambers. Thanks for coming on the show. We'll keep reading your coverage.
Hannah Hess: Thank you for having me.
Monica Trauzzi: More Cutting Edge coming next Friday. We'll see you then.
-
Calif. Regs Seek to Prevent More Aliso Canyon-Style Leaks
Feb 5, 2016 | E&E Climatewire
By Debra Kahn
California regulators are readying rules to control methane from oil and gas operations, including underground natural gas storage tanks like the one currently leaking in Southern California.
The state Air Resources Board released draft regulations Tuesday that would require oil and natural gas facilities to monitor for and control methane leaks from all aspects of their operations.
The last version of the regulations, released in April, didn't include rules to mandate early detection of large leaks like the one in a storage tank at Aliso Canyon, now in its fifth month.
It also didn't provide for ways to compensate for the climate effects of such leaks, which are many times more potent than carbon dioxide due to the length of time that they linger in the atmosphere and the amount of thermal radiation they absorb.
"As the events unfolded, we recognized the need to include some additional measures in there," said Elizabeth Scheehle, chief of ARB's oil, gas and greenhouse gas mitigation branch, after a workshop yesterday on the regulations.
The new proposal would require emissions reductions to compensate for any large methane leak, which could include specific emissions-reduction projects or other tactics. It leaves blank the question of exactly how to make up for the emissions -- now estimated at 80,000 tons of methane from Aliso Canyon -- but environmental advocates expect it to soon be filled in. A number of state lawmakers have floated proposals to deal with the leak, including state Sen. Ben Allen (D), whose S.B. 888 would put any penalties against Southern California Gas Co. or any other gas company into an account to be used for emissions reductions.
ARB staff didn't comment on outside proposals but said they were actively seeking feedback on compensation plans. "It's really at an embryonic stage," Scheehle said.
Light opposition so far
The proposal also would require quarterly testing for leaks and require that parts that have more than five repairs in 12 months be taken out of service. It specifies that the biggest leaks -- those above 50,000 parts per million by volume -- are to be capped within five days, with smaller leaks given as much as 14 days. Starting in 2019, the largest leaks must be repaired within two days.
Regulators have picked up the pace of rulemaking significantly since last year. The draft regulations are open for public comment through Feb. 18, with a third draft due out April 1 and final approval scheduled for September. The rules would go into effect in January 2017.
Environmentalists were quick to praise the rules, saying they fit in well with national progress on methane but also go slightly further in some ways than other rules, including the Bureau of Land Management's proposed rules last month for oil and gas wells on public lands.
"It's been almost 10 months since we've had any action on this rulemaking," said Tim O'Connor, director of the Environmental Defense Fund's oil and gas program in California. "The fact we have a robust regulatory proposal out there certainly is a great step, and we are certainly happy to see ARB, with a history of enforcement against folks who do indeed break the law, take a leadership position here."
California's regulations are unique in that they use a calculation of methane's potency that makes it more cost-effective to control. Methane's global warming effect is commonly expressed over a period of either 100 years or 20 years.
By using the 20-year calculation, which assumes a higher concentration of methane, the regulations become less expensive per ton of reductions. According to California's analysis, companies will have to pay as much as $37 per ton of reductions, in the case of leak detection and repairs, but also stand to save as much as $2 per ton from the natural gas saved by installing better seals on centrifugal compressors.
"When you have a workshop like this and put out the 20-year number as the reasoning for this ... you can see the writing on the wall," O'Connor said. "California is moving toward a more rigorous framework for short-lived climate forcers."
O'Connor said he expected industry to push back against the costs of the regulation, but so far, opposition has been muted. A representative of the Western States Petroleum Association objected at yesterday's workshop to the tight timeline for implementation, which has remained unchanged from the April 2015 draft.
"It seems to me that since the authorization of the regulation's been pushed back, you need to look at your compliance schedule, as well," he said.
-
EPA Floats 3-year Extension for State Haze Plans
Feb 5, 2016 | E&E Greenwire
By Sean Reilly
States would get another three years to rework their regional haze plans under a U.S. EPA draft proposal awaiting review by the White House Office of Management and Budget.
As summarized in OMB's latest rundown of federal rulemakings, the proposal would push back the deadline for submission of comprehensive revisions of the state implementation plans (SIPs) from July 2018 until July 2021. In an email, EPA spokeswoman Laura Allen said the proposal would allow states to coordinate haze planning with other regulatory initiatives such as the Mercury and Air Toxics Standards, the Clean Power Plan, and ambient air quality standards for ozone and other pollutants.
"States would be able to gather more information on the effects of these programs and develop their next regional haze SIPs so that they are more integrated with planning for these other programs," Allen said.
OMB's Office of Information and Regulatory Affairs received the proposal Wednesday, according to the website reginfo.gov. Typically, its review is not supposed to last longer than 90 days, but OIRA can seek extensions.
The proposal would not affect the timetable for states' subsequent revisions to their regional haze plans, which are currently due in 2028; it would, however, drop the requirement that "periodic progress reports" be submitted as revisions to the state implementation plans and also provide a new route for the public and federal lands managers to comment on the reports, according to the summary.
Under EPA's Regional Haze Rule, which dates back to 1999, states have to come up with air quality programs to improve visibility in national parks and wildlife refuges. Neither of the groups that represent state air regulators, the National Association of Clean Air Agencies and the Association of Air Pollution Control Agencies, has yet taken a position on the proposed changes.
At NACAA, "we will be in a better position to offer the association's perspectives" once the full proposal is released and the organization has a chance to review it, Deputy Director Nancy Kruger said in an email yesterday.
-
Industry Challenges EPA Toxic Refinery Emission Limits
Feb 4, 2016 | E&E Greenwire
By Sean Reilly
Two oil industry trade groups are challenging new U.S. EPA limits on toxic refinery emissions with the U.S. Court of Appeals for the District of Columbia Circuit.
As is often the case, the initial petition for review filed by the American Petroleum Institute and American Fuel and Petrochemical Manufacturers does not lay out the grounds for the lawsuit.
But in a statement this morning to Greenwire, the petroleum institute said that EPA analyses and extensive industry monitoring data "show that air emissions from refineries are already at safe levels without additional regulations."
"The refinery industry has proven we can provide reliable American energy while protecting the environment and local communities," the statement said.
A spokeswoman for the fuel and petrochemical manufacturers group had no immediate comment.
The two organizations' suit was filed last Friday, but neither publicly announced it and the case did not immediately show up in the federal judicial system's online docket system.
Yesterday, the appellate court consolidated the suit with a separate challenge filed this week by 10 environmental and public health groups that want EPA to further crack down on pollution releases stemming from equipment malfunctions (E&ENews PM, Feb. 2).
The court set a March 4 deadline for both sides to spell out the issues they intend to raise in the litigation.
The new regulations, published in the Federal Register in December, will cut refinery emissions of toxic air pollutants by 5,200 tons annually along with reducing emissions of volatile organic compounds by 50,000 tons, according to EPA estimates.
The tighter standards stem from a 2014 consent decree in a lawsuit filed against EPA by Air Alliance Houston and other groups over the agency's failure to meet an eight-year deadline to review and revise the new source standards.
By EPA's count, based on 2011 data, there are 142 petroleum refiners considered major polluters under the Clean Air Act.
Agency officials peg the cost of new construction and equipment needed to comply with the rule at about $283 million, with an annual expense of $63 million; they expect the new regulations to have a "negligible" effect on the price of gas and other petroleum products.
In an online posting signed last Friday by Administrator Gina McCarthy, EPA is also proposing to give refineries another 18 months to comply with "a small subset" of the new standards that apply during startup, shutdown and maintenance periods.
In the proposal, McCarthy said that the extra compliance time would have "an insignificant effect on emission reductions and costs, as many refiners already have measures in place due to state and other federal requirements to minimize emissions during these periods."
The proposal will carry a 45-day comment period when published in the Federal Register.
-
New EPA Standard Doesn't Factor in Background Ozone -- Texas
Feb 5, 2016 | E&E Greenwire
By Sean Reilly
Texas is continuing its drumbeat of criticism of U.S. EPA's new ozone standard in a new court filing that asks whether federal regulators ignored relevant scientific research and whether they failed to consider the potential impact of background ozone outside the state's control.
EPA also neglected to take into account whether other regulations will cumulatively yield the same results as the new ozone rule, thereby "subjecting Texas and other entities to duplicative and unnecessary expenditures," the state's attorney general, Ken Paxton (R), wrote in thestatement of issues filed Wednesday with the U.S. Court of Appeals for the District of Columbia Circuit.
While Texas is among 10 states challenging the ambient air quality ozone benchmark of 70 parts per billion rolled out in October, elected leaders and other officials there have been especially aggressive in questioning the need to tighten it.
Both the Houston and Dallas-Fort Worth metropolitan areas still don't meet the previous 75 ppb standard set in 2008; last April, the Texas Commission on Environmental Quality held a workshop featuring experts who charged that EPA was shaping scientific data to reach a predetermined conclusion.
"We don't see how lowering the ozone standard by 5 to 10 parts per billion will result in a measurable health benefit," Michael Honeycutt, the commission's director of toxicology, said in a webinar previewing the workshop (Greenwire, April 1, 2015).
Ozone, the main ingredient in smog, can irritate lung passageways and worsen asthma and other conditions. The 70 ppb standard was at the upper range of the options that EPA considered; the agency is also facing a lawsuit from environmental and public health groups that say the benchmark should have been set at 60 ppb to protect public health in accordance with the Clean Air Act.
In this week's filing, Paxton took a contrary tack, questioning whether the agency disregarded evidence showing that the 2008 standard needed no lowering. He also asked whether EPA failed to consider the effects of background ozone wafting in from Mexico and other states, as well as through "stratospheric intrusion."
Other states, as well as business groups, are similarly objecting that background ozone not attributable to local human activity could stymie compliance with the new standards. Earlier this week, EPA closed out a comment period on proposed revisions to its "exceptional events" rule that the agency says could be used to address high levels of background ozone.
-
Ore. Waited to Tell Public of Manufacturer's Emissions
Feb 5, 2016 | E&E Greenwire
Oregon regulators installed an air monitor next to a Portland glass manufacturer but waited weeks to tell the public what it found.
The Oregon Department of Environmental Quality notified the public it had found elevated levels of cadmium and arsenic Wednesday, shortly before a reporter at The Portland Mercurywas set to publish the information.
The source of arsenic and cadmium levels in Portland has been unknown for decades as emissions levels have turned up higher than expected.
The state had known about the elevated emissions at the glass manufacturer since Jan. 20. The discharges were 149 times higher than the state's safety goals for arsenic and 49 times higher for cadmium.
Operator Bullseye Glass Co. said it had stopped using the heavy metals.
"The owners and employees of Bullseye Glass care about the environment and our neighborhood and take this matter seriously," the company said.
-
EAB Poised To Hear Suit Testing EPA Deference For CWA Nutrient Permits
Feb 5, 2016 | Inside EPA
By David LaRoss
EPA's Environmental Appeals Board (EAB) will hear oral argument next week in a novel Clean Water Act (CWA) permit challenge that could set new standards for how regulators must justify discharge limits on nutrients and test the agency's deference on crafting such permits, though EPA claims the challenge has major factual errors.
The board in a Jan. 26 order scheduled argument for Feb. 9 in In re: City of Taunton Department of Public Works, where the Massachusetts wastewater department is hoping to overturn a 2015 CWA discharge permit that sets strict limits on nitrogen releases from its treatment plant. A win for the city, either at the EAB or on appeal of the board's eventual ruling to a federal court, would restrict the deference permit writers have long received on their scientific judgment.
Taunton's petition says EPA's 3 milligram per liter (mg/l) permit limit for total nitrogen (TN) contradicted prior findings by the Massachusetts Department of Environmental Protection (MassDEP) that higher discharge levels would not harm the nearby Taunton Estuary (TE), and failed to justify that decision as required by the water law.
"EPA's position was based on the same data that MassDEP evaluated in determining, repeatedly, that nutrient violations were not occurring in TE, under higher nutrient loading conditions to the system. . . . it was clear error for EPA to conclude it was 'necessary' to impose state-of-the-art TN reduction requirements on the City," the petition says.
Taunton is the latest in a series of challenges to EPA-crafted nutrient permits in Massachusetts, which is one of the few states where the agency is the sole CWA permit authority. Since MassDEP has never sought delegated power to issue CWA permits, EPA under the water law is responsible for setting discharge limits.
Under the CWA, such limits are set at the level needed to implement water quality criteria -- risk-based limits that regulators use, along with waterbodies' designated uses and antidegradation policy, to set limits on pollution entering protected waters.
But Massachusetts is among the states that use "narrative" criteria for nutrients, which are based on avoiding effects of pollution such as algal blooms or reductions in fish population, rather than measuring numeric levels of nutrients. EPA in crafting permits therefore must make site-specific determinations on what fixed numeric limit on TN and phosphorus will prevent those narrative effects.
Taunton claims that when EPA set its permit limit the agency ignored MassDEP's own findings on the causes of water quality impairments in the area, which it argues violates mandates for the agency to use "the latest and most current scientific information" in crafting permits and to defer to states' interpretations of their water quality standards. It also argues that the agency's scientific justification for its permit is flawed and fails to establish a cause-and-effect relationship between Taunton's discharges and waterbody impairment in the estuary.
EPA's Arguments
EPA has countered in its briefs to the appeals board that Taunton is citing the wrong requirements for legality of permit terms.
Rather than showing direct cause and effect, it says the agency under the CWA must only demonstrate a "reasonable potential to cause, or contribute to an excursion beyond applicable water quality criteria," EPA has said.
"Petitioner's cause-and-effect arguments cannot form a basis for review, because they are based on the false premise that EPA was required to prove Taunton's discharge caused the impairment prior to imposing a limit and that any information used to support the limit must likewise have stemmed from actual cause-and-effect demonstrations," EPA says in its June 12 response to the petition.
The agency also questions Taunton's statement that federal regulators should defer to the state's analysis of the causes of nutrient impairments in the Taunton Estuary. Those findings are separate from decisions on permit limits, the agency says.
"Petitioner, furthermore, offers no evidence to indicate that MassDEP ever intended for its [study] to serve as a . . . guidance for translating narrative into numeric criteria, or as a substitute for a reasonable potential analysis -- and why would it have? EPA is the permitting authority in Massachusetts tasked with making such determinations," EPA says.
The agency also disputes Taunton's claims that it relied on old data to justify its finding, and that it failed to give stakeholders including the city a chance to comment on proposed permit terms.
Permit Limits
If the EAB panel hearing the case sides with the agency to deny Taunton's petition, the city would be able to appeal that decision to a federal appellate court, where a ruling in its favor would have precedential impact. But to win such a decision Taunton would have to overcome the weight of recent cases on nutrient issues that have broadened EPA's discretion to set stringent permit limits in states with narrative CWA criteria.
The U.S. Court of Appeals for the 1st Circuit held in a unanimous 2012 ruling, Upper Blackstone Water Pollution Abatement District v. EPA, that courts should treat the agency's decisions in crafting permits based on narrative standards with "extreme deference," and specifically upheld EPA's use of reference studies that the water district argued were inapplicable to local conditions.
In 2013 and 2014, a group of New Hampshire cities failed in challenges to a series of EPA-issued nutrient permits for their wastewater plants that they filed in both the U.S. District Court for the District of Columbia and the EAB. They argued that EPA illegally applied a draft water quality standard that New Hampshire never formally adopted when it classified waters near the cities as "impaired" and thus subject to stricter discharge limits.
However, EAB and the district court rejected those claims, with the court holding in two separate rulings that the cities failed to identify any procedural violation of the CWA that could support a lawsuit.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News - There are no clips to report at this time.
Energy and Environment News
Add recipients
Suggested