Preview Newsletter
ACC AM Feb 9
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New York Lead Paint Exposure Case Reinstated
Feb 9, 2016 | BNA Daily Environment Report
By Peter Hayes
Three former residents of a New York apartment building will have another chance to prove they were injured by exposure to lead paint in their units as children (Rodrigues v. Lesser, N.Y. App. Div., 4th Dep't., 2016 NY Slip Op. 00836, 2/5/16). There was sufficient evidence that the owner knew of the hazardous condition... -
Senator Uses Industry Roots To Prod Companies To Do Better
Feb 9, 2016 | E&E Daily News
By Sam Pearson
Back when he repainted a kitchen in his newly purchased Delaware home, Sen. Chris Coons (D) remembers a stench of old oil-based paint so strong the family dog wrinkled its nose and ran away. Coons and his wife, Annie, used newer latex paint on the kitchen, but the old owners' oil-based paint that was left behind reeked, prompting them to buy a... -
EPA Proposes 18-Month Refinery Compliance Extension
Feb 9, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Refinery operators would get an additional 18 months to comply with aspects of a new Environmental Protection Agency regulation on refinery emissions, under a new agency proposal. The EPA, in a proposed rule scheduled for publication Feb. 9, would provide refiners with additional time to meet requirements related to venting during... -
More Than 60 EWG VERIFIED™ Products – and Counting!
Feb 8, 2016 | Environmental Working Group
By Ashley McCormack
Our verification program was created to help shoppers quickly and easily identify products that meet our strictest health and transparency standards. The program is gaining momentum and awareness, and the list of products in the pipeline for verification is rapidly growing. You can already find select EWG VERIFIEDTM products... -
Industry Dominates Lobbying of Pipeline, Hazmat Agency
Feb 9, 2016 | BNA Daily Environment Report
By Rachel Leven
No environmental or public interest groups have disclosed lobbying the agency that regulates pipeline safety and hazardous transport, according to a Bloomberg BNA analysis of Senate lobbying. Some of these groups said their efforts to influence the agency have occurred below reporting thresholds but believe a disparity exists in who seeks... -
Chlorine Trains Pose an Even Deadlier Threat Than Oil Trains
Feb 8, 2016 | TakePart
By David Kirby
Much has been said about the dangers of oil trains following several high-profile accidents, including a fiery 2013 crash in Quebec that killed 50 people. Now a report from Greenpeace points to another potential hazard that could be even deadlier: chlorine trains. Eighty-six plants across the United States use chlorine gas... -
House Dems Want Tighter Restrictions In Refuges And Parks
Feb 9, 2016 | E&E Daily News
By Corbin Hiar
Nearly 60 House Democrats today called on Interior Secretary Sally Jewell to finalize tighter restrictions on oil and gas operations in the national wildlife refuges and national parks. In a letter circulated by Reps. Alan Lowenthal of California and Niki Tsongas of Massachusetts, the ranking members of the Natural Resources Subcommittee on... -
California Approves Emergency Gas Storage Field Rules
Feb 9, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Daily inspections of wellheads and other testing and monitoring are now required at underground natural gas storage fields, under regulations California's Office of Administrative Law approved. Approved Feb. 5, the emergency regulations come in response to the massive leak discovered at the Southern California Gas Co.'s underground... -
House Oversight Probes BLM Law Enforcement
Feb 9, 2016 | E&E Daily News
By Phil Taylor
Two Western leaders on the House Oversight and Government Reform Committee last week said they're concerned over allegations that Bureau of Land Management police officers have overstepped their authority and intimidated local citizens in Utah and Nevada. Chairman Jason Chaffetz (R-Utah) and Subcommittee... -
House Panel Sets Vote On Emissions, Infrastructure Bills
Feb 9, 2016 | E&E Daily News
By Hannah Hess
A House Energy and Commerce subcommittee will vote Thursday on a dozen bills, including two measures to counter certain U.S. EPA emissions rules and legislation addressing various permitting and rate-setting processes at the Federal Energy Regulatory Commission. The Subcommittee on Energy and Power is slated ... -
No Agreement on Energy Bill Seen as Time Runs Short
Feb 9, 2016 | BNA Daily Environment Report
By Ari Natter
No deal has been reached during negotiations on an energy bill amendment to provide aid for the water crisis in Flint, Mich., casting doubt on the fate of the broader legislation. Negotiations were continuing late Feb. 8 on a compromise measure that would put the 424-page energy bill (S. 2012) and legislation to help Flint deal with its lead-tainted water... -
Down To The Wire For Senate Package
Feb 9, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
Senators from both parties are scrambling to save the bipartisan energy package from collapsing under the political weight of the Flint, Mich., drinking water crisis. With the Senate scheduled to move on to other business tomorrow morning, key senators huddled on the floor last night to talk strategy for providing federal assistance for Flint... -
North Dakota: States Should Set Power Plant Standards
Feb 9, 2016 | BNA Daily Environment Report
By Andrew Childers
It's up to states and not the Environmental Protection Agency to set carbon dioxide emissions limits for existing power plants, North Dakota argued in a Feb. 8 U.S. Supreme Court filing in support of petitions to stay implementation of the Clean Power Plan (West Virginia v. EPA, U.S., No. 15A773, reply filed 2/8/16). -
Focus Turns To State Agency Coordination On Carbon Rule
Feb 9, 2016 | E&E Daily News
By Emily Holden and Rod Kuckro
The first 2016 meeting of the "3N" members occurs Thursday and Friday in Washington, D.C., at the conclusion of the National Association of State Energy Officials' three-day Energy Policy Outlook Conference. Each Monday, Power Plays previews upcoming moves on the way to Clean Power Plan compliance and recaps the ... -
State Plans To Stymie EPA Rules Running Into Unlikely Resistance
Feb 8, 2016 | PoliticoPro
By Alex Guillén
State legislators around the country are working to undermine EPA’s landmark plan to reduce power plants’ carbon emissions, but they are running into resistance from an unlikely source: The utilities who would have to live by those rules and their allies in the business community. -
EPA Pushes Back On Bid To Stay Utility MACT Suits
Feb 8, 2016 | InsideEPA
EPA is reiterating its opposition to power industry groups' motion to keep in abeyance some lawsuits over various provisions in the agency's revised utility maximum achievable control technology (MACT) air toxics rule, saying the request is based on waiting for a final MACT cost review that is “irrelevant” to the delayed litigation. -
8th Circuit Reiterates Finding Of CSAPR Satisfying Haze Air Plan Mandate
Feb 8, 2016 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the 8th Circuit in a new ruling is reiterating its earlier finding that EPA's Cross-State Air Pollution Rule (CSAPR) can satisfy some emissions control requirements in states' plans for complying with the agency's regional haze program, even as the D.C. Circuit grapples with an EPA rule on the issue. -
Advocates: Cross-State Proposal Not Strong Enough
Feb 9, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and public health groups urged the Environmental Protection Agency to revise a proposal on power plant emissions that cross state lines to require further reductions of nitrogen oxides. The advocacy organizations said in comments that an EPA proposal to revise the emissions budgets that states are subject to the agency's... -
Advocates' Opposition To Senate Ash Bill Might Limit Democrats' Support
Feb 8, 2016 | InsideEPA
By Suzanne Yohannan
Environmentalists are urging senators to oppose legislation aimed at overhauling EPA’s coal ash disposal rule due to concerns it would scrap the “critical and long-awaited safeguards” for ash facilities established in the rule, and the push-back might dampen efforts by the bill's proponents to secure more Democratic support for the measure. -
Climate Change May Be Part of SEC Disclosure Review
Feb 9, 2016 | BNA Daily Environment Report
By Andrea Vittorio
The Securities and Exchange Commission said it has no plans to do more on corporate climate reporting specifically, but it could be addressed as part of a broader look at financial reporting. The SEC issued guidance in 2010 explaining how existing disclosure requirements apply to business risks posed by climate change, including physical and... -
Report Finds Warming Disclosures Take Back Seat At SEC
Feb 8, 2016 | E&E News PM
By Amanda Reilly
Assessing companies' climate change disclosures has dropped in priority at the Securities and Exchange Commission, according to a report released publicly today by a government watchdog. The Government Accountability Office found that since the SEC issued a guidance on climate change disclosures in 2010... -
Obama Proposing Clean-Water Cuts Amid Flint Outcry
Feb 8, 2016 | PoliticoPro
By Annie Snider
The Obama administration is expected to propose a $250 million cut to its primary funding source for water and sewer systems as part of its budget proposal Tuesday — a prospect that is bringing bipartisan criticism amid the furor over lead contamination in Flint, Mich. -
Flint Talks Continue As Clock Ticks On Senate Bill
Feb 8, 2016 | E&E News PM
By Geof Koss
The leaders of the Senate Energy and Natural Resources Committee are working to keep their bipartisan energy package alive, while discussions continue on possible aid to help the residents of Flint, Mich., cope with their lead-contaminated drinking water. In a joint statement this afternoon, Energy Chairwoman...
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New York Lead Paint Exposure Case Reinstated
Feb 9, 2016 | BNA Daily Environment Report
By Peter Hayes
Three former residents of a New York apartment building will have another chance to prove they were injured by exposure to lead paint in their units as children (Rodrigues v. Lesser, N.Y. App. Div., 4th Dep't., 2016 NY Slip Op. 00836, 2/5/16).
There was sufficient evidence that the owner knew of the hazardous condition and failed to fix it, the New York Supreme Court, Appellate Division said Feb. 5, reinstating the suit.
Negligence Allegations
Marilyn, Madeline and Anibal Rodrigues allege that Catherine Pirillo was negligent in her ownership and maintenance of the apartment and in her abatement of the lead paint hazard.
Pirillo moved to dismiss, arguing that there was no evidence of a hazardous condition in the apartment; that, even if such a condition did exist, she lacked notice of it; and that any exposure to that condition in the defendant's apartment was not a cause of the injuries claimed by the plaintiffs.
The trial court granted the motion and the plaintiffs appealed.
Reversing, the court here said Pirillo failed to show that she lacked constructive notice of the condition.
Constructive Notice Test
The test for constructive notice in New York state was established in (Chapman v. Silber, 760 N.E. 2d 329 (N.Y. Ct. App. 2001)).
Citing Chapman, the court said, plaintiffs must present evidence that the landlord:
(1) retained a right of entry to the premises and assumed a duty to make repairs,
(2) knew that the apartment was constructed at a time before lead-based interior paint was banned,
(3) was aware that paint was peeling on the premises,
(4) knew of the hazards of lead-based paint to young children and
(5) knew that a young child lived in the apartment.
‘Suppose' Lead Is Dangerous
In this case, the court said, “By submitting the deposition testimony of plaintiffs' mother, wherein she alleged that she complained to defendant and defendant's mother, who resided in the building, about peeling and chipping paint in the apartment, defendant herself raised triable issues of fact on the third Chapman factor concerning notice.”
“With respect to the fourth Chapman factor on notice, defendant submitted her deposition testimony in which she admitted that she ‘suppose[d]’ that lead was bad for people if ingested,” the court said.
The plaintiffs also presented sufficient evidence of causation in the form of a medical expert's opinion that the cause of their injuries was “significant” exposure to lead, the court said.
Finally, the court reinstated the negligent abatement allegation, finding Pirillo failed to show that she performed an abatement in a reasonable manner and within a reasonable time.
The order was issued per curiam. Judges Gerald J. Whalen, Nancy E. Smith, John V. Centra, Edward D. Carni, and Henry J. Scudder comprised the panel.
Athari & Associates LLC, in New Hartford, N.Y., represents the plaintiffs.
McGivney & Kluger PC, in Syracuse, N.Y., represents Pirillo.
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Senator Uses Industry Roots To Prod Companies To Do Better
Feb 9, 2016 | E&E Daily News
By Sam Pearson
Back when he repainted a kitchen in his newly purchased Delaware home, Sen. Chris Coons (D) remembers a stench of old oil-based paint so strong the family dog wrinkled its nose and ran away.
Coons and his wife, Annie, used newer latex paint on the kitchen, but the old owners' oil-based paint that was left behind reeked, prompting them to buy a can of turpentine to dilute it. But it got him wondering -- if that was how the dog reacted, what did it mean for his young children?
Because of how the chemical industry developed, whoever invented that particular brand of paint probably was thinking about how well it would work on Coons' walls -- not what would happen when its fumes filled his house, scientists say.
Across the country, scientists are working to change how the chemical industry designs its products, so that researchers inventing the next generation of chemicals avoid the mistakes of the past -- which left companies and communities with environmental liabilities, health problems and Superfund cleanups.
Sen. Chris Coons (D-Del.) has used his knowledge of the chemicals industry to push sustainability during the congressional debate over regulating chemicals. Photo courtesy of AP Images.
Aided by Coons, the federal government could take its biggest step yet to urge companies to design chemicals by thinking of their health and environmental impacts from the beginning, under language in a pending congressional overhaul to U.S. EPA's regulatory system. But some scientists question if the plan will lead to real changes at EPA.
Though he doesn't sit on the Environment and Public Works Committee, which has jurisdiction over chemicals policy, Coons pushed to fold part of his stand-alone bill, S. 1447, or the "Sustainable Chemistry Research and Development Act," into a larger piece of legislation to update the Toxic Substances Control Act of 1976, S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" (E&E Daily, May 22, 2015).
Lawmakers in the House and Senate are ironing out differences in two related bills as they seek to send final legislation to President Obama soon (E&E Daily, Jan. 7).
Coons' provisions in S. 697 would create an interagency sustainable chemistry program to promote sustainable chemistry research and development, technology transfer and commercialization, among other things. The program would be run by officials from the National Science Foundation and U.S. EPA, while officials from the National Institute of Standards and Technology; the Energy, Agriculture and Defense departments; and the National Institutes of Health would also participate. Within two years, the group would produce a report for Congress on existing sustainable chemistry research and the benefits of expanding and centralizing the activities.
The current lack of attention to chemicals' health and safety profiles at the beginning is "absolutely absurd," said Paul Anastas, director of the Center for Green Chemistry & Green Engineering at Yale University and a former U.S. EPA assistant administrator.
Anastas likes to use hypotheticals to make the problem more relatable.
An architect wouldn't say, "Oh, I make beautiful, luxurious buildings. Yes, they collapse unexpectedly and kill people, but other people are working on sustainable housing," Anastas said.
The public would hardly tolerate a car designer who thought, "I have the fastest cars in the world, but the tires fall off and they explode, but other people are working on sustainable cars," Anastas added.
Laboratories in Coons' home state produced some of the 20th century's biggest chemical innovations, but the lawmaker says he knows the regulatory system didn't always keep up. Coons was studying chemistry as an undergraduate at Amherst College in Massachusetts in the early 1980s, just a few years after lawmakers passed the original TSCA.
Touted as a big step to protect the public, it was soon criticized as ineffective and toothless.
"Only a handful of compounds have actually been fully and successfully characterized under TSCA," Coons said in an interview. "It hasn't worked." Aiding industry, and the environment
Coons' career in federal politics started with an assist from the GOP.
In an unusual development for the insular world of Delaware politics, the former New Castle County executive jumped a rung on the ladder when he was elected in 2010, joining the Senate without having held statewide office.
His easy victory came after a GOP primary race in which heavy turnout by conservative tea party Republicans saw unknown activist Christine O'Donnell knock off then-Rep. Mike Castle, a former governor.
O'Donnell's win "really opened things up for Coons to have a much easier first election," said Jason Mycoff, a political science professor at the University of Delaware. "If he had been going against Castle in that first election, there's no way to prove one way or another what would have happened."
Unlike O'Donnell, Coons' connections to Delaware's chemical industry and political circles began when he was young.
After his parents' divorce, Coons' mother married Robert Gore, the chairman of W.L. Gore & Associates, maker of the outdoor fabric Gore-Tex and other performance materials, when Coons was 14.
Coons' time at Amherst College, where he graduated with a degree in chemistry and political science, took him abroad to study in Nairobi, Kenya, and then to the Yale Divinity School, where he earned a Master of Arts degree in religion, specializing in ethics.
After law school, he served as a clerk to Judge Jane Roth of the 3rd U.S. Circuit Court of Appeals, the wife of former Sen. William Roth (R) of Delaware.
In 1996, Coons joined W.L. Gore as a staff attorney, where he worked on ethics training and government relations.
Gore-Tex, the company's key product, was a big profit generator as a crucial component of many outdoor products, but came with a catch -- it was made with long-chain PFOAs, or perfluorooctanoic acid, the same type of chemical that DuPont Co. used to make Teflon at a Parkersburg, W.Va., plant and that was found recently in high levels in the drinking water of an upstate New York town (Greenwire, Jan. 26). Acting with others in the industry, Gore completed a phaseout of long-chain PFOAs from its products by the end of 2013.
At the time, the company said it was "one of the first companies in the sector to successfully manage the changeover to PFOA-free raw materials for its entire range of textile products."
Both short- and long-chain PFOAs break down slowly in the environment, which concerns environmentalists and regulators. In outdoor products like those made by Gore, PFOAs help repel water and dirt. A study by environmental group Greenpeace released this week found high levels of short-chain PFOA chemicals in a variety of outdoor apparel, including those containing Gore-Tex liner.
"It's a tricky issue," said Arlene Blum, director of the Green Science Policy Institute. "It's a very useful product, but there's a huge potential for harm."
Managing PFOAs has been a challenge for many chemical companies, Coons said, adding that his role at W.L. Gore did not involve making decisions about their use.
In the Senate, Coons uses his scientific and legal experience to translate chemical issues for his colleagues.
Fewer than five senators "have any real training in hard sciences," Coons told the American Chemical Society's Green Chemistry & Engineering Conference in Bethesda, Md., last year.
Coons' efforts to advance sustainable chemistry began in New Castle County, where he and then-Delaware Department of Natural Resources and Environmental Control Secretary Collin O'Mara -- now the president of the National Wildlife Federation -- worked with a group of businesses, the Delaware Sustainable Chemistry Alliance, to push companies to integrate sustainability in their research and development processes.
The Hercules Chemical Co., now part of Ashland Inc., was the alliance's first big booster, Coons said, because it saw sustainability as a competitive advantage.
"It's harder chemistry to do," Coons said. "Frankly, the easier chemistry is chemistry that uses volatile organic solvents, that uses petroleum inputs."
Launched in 2010, the alliance is seeking to expand beyond Delaware into the broader Mid-Atlantic region, said Bryan Tracy, the CEO of Elcriton Inc. and the group's president. Tracy's company is working on new bio-based chemicals that can be used to manufacture other substances using less fossil fuels.
The group can make key connections between startup founders and the established leaders they need to secure investment funding and market share, Tracy said.
"It's a very, very difficult task of figuring out who to talk to, who are the decisionmakers, who actually cares about what I'm doing, and how do I sell my technology to them," Tracy said.
Groups like his are especially important because of the steep challenges to breaking through in the established chemical industry, where plants and processes are optimized for the status quo, Tracy said.
In Silicon Valley, people think startups like Uber Technologies Inc. or Lyft are "disruptive," Tracy said, but sustainable chemical companies face longer odds to go up against traditional chemical manufacturing processes, which are cheaper but not always beneficial for the planet.
"Gasoline is cheaper than water right now," Tracy said. Solving a 'weird' problem
Though many experts praise Coons' TSCA provisions as an important step, others note it's just the beginning.
Debate remains over to what extent the legislation would force changes at EPA. The text also does not define the term "sustainable chemistry," which some scientists said could create confusion. Tracy said one might assume the United Nations' definition of sustainability applies -- something that provides "for a decent standard of living for everyone today without compromising the needs of future generations."
To get his plan on the larger TSCA bill, Coons had to leave out provisions to create a grant program for sustainable chemistry, which would have needed annual appropriations. Though new spending can face a tough road from austerity-minded politicians in Washington, D.C., many scientists say the proposed grants were the most effective part of the original "Sustainable Chemistry Research and Development Act."
Others warn that some language may not do enough to change the status quo at EPA.
The concern is that the text could be "so broad and so nebulous that it covers what you're already doing anyway," in the industry and at EPA, said one scientist familiar with the issue who did not want to be named.
"These things don't happen by accident," the scientist noted.
Speaking at a recent green chemistry forum on Capitol Hill, scientists say they were surprised that at some high-profile universities, no green chemistry courses are available. Most blame the gap on the chemical industry's evolution amid a focus on performance and cost, but not a substance's environmental or safety profile.
Often, the corporate chemists designing new chemicals may have never taken a course in toxicology, which could help them understand if they should tweak their inventions to prevent future health or environmental damage, the scientists say.
Coons compares the field to green building. By his logic, not offering training in these principles would be like not telling architects what building materials are more sustainable, or which techniques reduce energy usage in a new structure.
While studying for her doctorate in organometallic chemistry at Yale University in the mid-2000s, Adelina Voutchkova, now a professor at George Washington University, said she was shocked to find few options for pursuing a sustainable angle to her studies.
"I was surprised that green chemistry wasn't something we had in our curriculum, even at an Ivy League university," Voutchkova said at the forum.
Similar programs, she noted, are fairly common in Europe and Canada. The United States, meanwhile, has been "very slow" to change course curricula to encourage sustainable chemistry, Voutchkova said.
This "weird aberration" is harmful to the field, said John Warner, president and chief technology officer of the Warner Babcock Institute for Green Chemistry.
"The reason we have unintended consequences is not because people wanted to do evil things," Yale's Anastas said, "it's that they were trying to do the right things and did them wrong without thinking about it."
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EPA Proposes 18-Month Refinery Compliance Extension
Feb 9, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Refinery operators would get an additional 18 months to comply with aspects of a new Environmental Protection Agency regulation on refinery emissions, under a new agency proposal.
The EPA, in a proposed rule scheduled for publication Feb. 9, would provide refiners with additional time to meet requirements related to venting during maintenance and controlling emissions from fluidized catalytic cracking units and sulfur recovery units during periods of startup and shutdown.
The proposal wouldn't alter deadlines for other provisions of the 2015 refinery rule, including new requirements for operating flares and a requirement that a fenceline monitoring system for measuring benzene be installed by January 2018.
The agency said it's proposing to extend the compliance deadline in response to industry concerns that the refinery rule didn't offer facilities an adequate amount of time to meet federal Risk Management Program and Occupational Safety and Health Administration requirements to address safety concerns related to operational or procedural changes.
Those regulations require industrial facilities which are implementing an operational or procedural change to complete a management of change process, which includes an evaluation of the change, employee training and an assessment of the risk of chemical accidents and other catastrophic events.
The 2015 refinery rule, released in September, gave refineries until Feb. 1 to comply with the startup and shutdown provisions, as well as the venting during maintenance requirements. The refinery rule (RIN 2060-AQ75) sets new requirements to control emissions of benzene, xylene and other hazardous air pollutants from refineries (189 DEN A-23, 9/30/15).
The compliance deadline is one of several issues highlighted in a January petition for reconsideration jointly filed by the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers.
Industry Couldn't Meet Feb. 1 Deadline
The industry organizations said that many facilities have reported that they will need to adhere to alternative startup and shutdown standards established under the refinery rule but wouldn't be able to do so by the Feb. 1 deadline.
“Even if it were possible to make the necessary procedural changes by February 1 (which it is not), it would be highly imprudent to rush these changes given the potential process safety consequences,” the organizations said in their petition, which requested the 18-month extension that the EPA has proposed.
The agency said in a fact sheet accompanying the proposal that the compliance extension would give refinery operators additional time to safely implement any changes and install additional equipment if necessary.
The extended compliance period is expected to have an insignificant effect on the expected emissions reductions that will be achieved under the new refinery standards, because many refiners already have measures in place to minimize emissions during startup and shutdown, the EPA said.
The EPA will accept public comments on the proposed compliance extension, as well as some proposed technical corrections to the text of the refinery standards, until March 25. Comments can be filed at http://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2010-0682.
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More Than 60 EWG VERIFIED™ Products – and Counting!
Feb 8, 2016 | Environmental Working Group
By Ashley McCormack
Our verification program was created to help shoppers quickly and easily identify products that meet our strictest health and transparency standards. The program is gaining momentum and awareness, and the list of products in the pipeline for verification is rapidly growing. You can already find select EWG VERIFIEDTM products from Beautycounter, MyChelle and Rejuva Minerals.
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Industry Dominates Lobbying of Pipeline, Hazmat Agency
Feb 9, 2016 | BNA Daily Environment Report
By Rachel Leven
No environmental or public interest groups have disclosed lobbying the agency that regulates pipeline safety and hazardous transport, according to a Bloomberg BNA analysis of Senate lobbying.
Some of these groups said their efforts to influence the agency have occurred below reporting thresholds but believe a disparity exists in who seeks to impact agency rules and guidance.
Environmentalists and public groups said the disparity related to the Pipeline and Hazardous Materials Safety Administration within the Transportation Department may be because of resource, technical or other barriers. But industry representatives said that their strong track record on safety may mean it is not an obvious focal point for activists.
“I think it's fair to say [that] pipelines and train bombs have not gotten quite as much attention as fracking and other aspects of the climate change Rubik's cube,” Bill Snape, senior counsel for the Center of Biological Diversity, told Bloomberg BNA.
Observers say Senate Office of Public Records filings may not be a comprehensive way to compare groups’ lobbying activities, given that the thresholds for disclosure vary for Congressional lobbying and for nonprofits registered as 501(c)(3) organizations under the tax code. For example, the lobbying forms do not require listing stakeholder engagement activities that can provide critical public input to government regulators.
Even if imperfect, lobbying records are one of the few concrete glimpses into who is aiming to influence an agency. The gap observed by those documents may represent a lack of diversity in whose—and potentially what solutions—are being offered on safety regulations for an industry with infrequent, but high consequence incidents.
Do Records Reveal All?
For its part, PHMSA told Bloomberg BNA in an e-mail that it “makes a concerted effort to engage and include a diverse group of stakeholders to improve safety and protect the public,” citing meetings, workshops and other efforts to “improve transparency by inclusive and balanced engagement with stakeholders.”
The low focus on PHMSA may intensify in the near future, activists said. The change would stem from the Aliso Canyon Well failure in Los Angeles that forced more than 4,400 people to evacuate their homes, events which have captured national headlines, Elgie Holstein, senior director for strategic planning for the Environmental Defense Fund, told Bloomberg BNA.
Historical Lobbying of PHMSA
PHMSA was established under the Norman Y. Mineta Research and Special Programs Improvement Act (Pub. L. No. 108-426) that was signed into law Nov. 30, 2004.
Only three groups disclosed lobbying the agency by 2007. In the fourth quarter of 2015, 24 entities listed contacts with PHMSA on their Senate disclosure forms.
Over time, the small group has included some major companies such as SpaceX, TransCanada Pipelines Ltd., Norfolk Southern Corp., Dow Chemical Co., American Airlines and Shell Oil Co. It also has included prominent industry trade associations such as the American Petroleum Institute, the Association of American Railroads, the Renewable Fuels Association, and the American Farm Bureau Federation.
Only two—the city of Salt Lake City, Utah and the International Association of Fire Chiefs—have not been a company or an industry group neither of which would generally be regarded as a public interest or environmental group.
What It Means
It is difficult to interpret what the findings mean. Different reporting methods are used by different groups.
Under the Lobbying Disclosure Act, only contacts with the highest level of executive branch officials must be disclosed, Howard Marlowe, the former president of the American League of Lobbyists, told Bloomberg BNA.
One can be dealing with people in the senior executive service “that are making decisions and in very important positions” and not have to disclose those interactions, Marlowe, president of Warwick Group Consultants LLC, said.
Equally important is what can go missing. For example, lobbyists only must register and disclose lobbying activities each quarter if they hit certain monetary and activity thresholds.
There could be activities occurring by public or environmental groups below these thresholds that don't need to be reported, meaning that the disparity in lobbying may not be as stark as it initially appears, Marlowe said. Some environmental and public interest groups confirm this, although they say there is still a disparity.
Additionally, at least some environmental groups have disclosed lobbying Congress on specific hazardous materials movement issues, such as crude-by-rail. But filings that disclose lobbying of Congress on issues such as pipeline safety and crude-by-rail in recent years reveal less interest by environmental and public interest groups than by industry.
Gap Exists
Some groups said the lobbying findings largely match their experiences in the issue area. Richard Kuprewicz, a public citizen representative on the federal Liquid Pipeline Advisory Committee says he is charged with speaking for those most likely to be affected by a new or existing pipeline. The public is underrepresented and more voices are needed, Kuprewicz said.
“Hardly any environmental nonprofits focus on pipeline issues. From our standpoint, that's kind of sad. We'd love to have some allies,” Carl Weimer, executive director of the Pipeline Safety Trust, told Bloomberg BNA. “There's room to lobby on issues that PHMSA has control over.”
For some activists, this has been a prioritization and resource decision. For example, Holstein of the Environmental Defense Fund, whose group does lobby in general, has focused very little on PHMSA-related pipeline issues because his goal has been controlling methane emissions from the oil and gas sector. He characterizes their lobbying of the agency as “de minimis.”
The group could have more impact targeting Environmental Protection Agency and Interior Department-related actions, rather than PHMSA, Holstein said.
John Stoody, vice president of government and public relations for the Association of Oil Pipe Lines, added that the sector may draw less environmental and public industry scrutiny due to its safety record.
“I think it's a reflection [of the fact that] they're safe, economical and, therefore, kind of boring,” Stoody, whose group has disclosed lobbying the agency, said.
Weimer said he worries about the lack of scrutiny. These lines are “out of sight, out of mind,” he said.
Technical Nature
Additionally, the technical nature of some of these issues could prove daunting to public interest groups. The industry has access to broad information resources, Weimer, whose group is the most active public interest pipeline safety-specific nonprofit, said. He added that his organization's lobbying falls below disclosure thresholds.
“A lot of times industry, just because of their abilities, end up writing the rules,” Weimer said.
But Weimer emphasized that on pipeline safety public commenters could broaden awareness and improve PHMSA outreach.
At least one environmental group has given up lobbying PHMSA. Snape of the Center for Biological Diversity, which occasionally lobbies federal agencies, said it is not worth trying to lobby PHMSA because they oppose its mission. PHMSA regulates transport of oil and gas, and Snape's group believes those resources should be left in the ground.
“PHMSA continues to kowtow to the industry it regulates, forcing public interest groups trying to protect the public and environment from harm to seek time-consuming and costly court intervention,” Jared Margolis, staff attorney at the CBD, told Bloomberg BNA in an e-mail. “Working with an agency that is so clearly captured by industry is a futile effort.”
Not everyone shares the view that it is difficult to work with PHMSA, although Weimer said that 10 or 15 years ago “it was hard to figure out where regulators ended and industry began.” Holstein said PHMSA had reached out to his organization, aiming to see how they could improve their outreach. Stoody also noted that PHMSA has reached out to his group. Weimer and Kuprewicz said that PHMSA is aiming to improve transparency and outreach, even if they have a ways to go.
Stakeholder Input
Brigham McCown, who was the acting administrator for PHMSA, told Bloomberg BNA these disclosures are far from the “complete picture of stakeholder input to PHMSA.”
The rulemaking process and other venues outside of lobbying offer a number of opportunities to comment, McCown said. For example, Kuperwicz highlighted how the pipeline-affected public's voice is elevated through federal advisory committees.
McCown disagreed with many of the environmentalists and public interest groups on whether their voices are heard by PHMSA. When asked whether environmentalists and public interest groups are sufficiently represented in general, McCown said “Yes, I think so.”
“In general, I would say that the process works and there's plenty of opportunity for input,” McCown, now the president and chief executive officer of Nouveau, Inc., said.
Weimer—at least for pipeline safety—said there is a clear imbalance in who is lobbying and who is taking an interest in the issues, but he says the ground may be shifting.
Holstein said his group has “gotten increasingly interested in PHMSA's bailiwick,” in the wake of the recent Aliso Canyon Well failure in Los Angeles that has released more than 84 million kilograms of the potent greenhouse gas methane into the atmosphere.
Holstein said his group has discussed jurisdictional questions with PHMSA over the natural gas underground storage facility, and would not be surprised if other environmentalists are targeting the agency as well. The agency has said it is developing rules for these facilities but did not elaborate on details.
‘Bambi vs. Godzilla.'
In Weimer's view, this increased activist involvement is important. His organization was initially funded as a watchdog group by a 2003 court-order that dedicated $4 million in criminal fines as a result of a 1999 Olympic Pipe Line Co. pipeline rupture in Bellingham, Wash. that killed three people.
When asked why public input was important, Weimer pointed to that 2003 court sentencing where Judge Barbara Rothstein of the U.S. District Court for the Western District of Washington said “with $4,000,000 … they're nowhere near the lobbying potential of the oil industry. It's not even David and Goliath. It's more like Bambi and Godzilla.”
“They need to make a difference, because they are the ones that will be the watchdogs. No industry polices itself very well,” Rothstein said. “You need outside people, and these are going to be the people so pay attention to them,” she added.
Bloomberg BNA contacted a broad array of industry-related groups and individuals who declined to comment on the record for this article.
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Chlorine Trains Pose an Even Deadlier Threat Than Oil Trains
Feb 8, 2016 | TakePart
By David Kirby
Much has been said about the dangers of oil trains following several high-profile accidents, including a fiery 2013 crash in Quebec that killed 50 people. Now a report from Greenpeace points to another potential hazard that could be even deadlier: chlorine trains.
Eighty-six plants across the United States use chlorine gas to produce bleach and repackage bulk chlorine gas for resale in smaller containers, the environmental group found. Most of that chlorine, a lethal toxin being used in weapons by the Syrian military and Islamic State fighters, is moved around the country by rail.
“These facilities often ship, receive, and store their chlorine gas in 90-ton railcars that are typically left unattended en-route or on site, making them vulnerable to accidents and acts of sabotage,” the report said. “These railcars crisscross the country delivering chlorine gas to facilities, endangering the communities through which they travel.”
The report estimated that one in five Americans—nearly 64 million people—live in “vulnerability zones” that are “in danger of a potential worst-case release of chlorine gas” from one of the 86 plants. It did not provide figures on the number of people who live near rail lines that carry the gas.
Acute exposure can cause severe coughing, wheezing, and fluid buildup in the lungs.
Whether on the rails, at a plant, or in a facility that stores large quantities of chlorine—to treat municipal sewage and drinking water, for example—the potential damage from an accident or a terror attack is enormous.
“Large-scale transport and storage close to urban centers could make [chlorine] an attractive target,” a 2010 U.S. Army study reported. “The use of chlorine could allow terrorists to deploy a chemical weapon in a highly populated area without having to manufacture or transport it themselves.”
In one scenario, a large-scale release of chlorine could kill more than 17,000 people and hospitalize 100,000. “Despite this,” the Army report said, “many at-risk communities are unaware of the volume of chlorine that is transported through their area.”
That was likely the case in Graniteville, South Carolina, in 2005, when a railroad tanker carrying chlorine struck another train, rupturing a tank and spewing 90 tons of gas. Eight people died, and more than 520 were injured.
In its report, Greenpeace offered recommendations for reducing the 15 million tons of chlorine produced annually in the U.S. and shipped around the country.
For one, bleach factories and water-treatment plants can transition from chlorine gas to liquid bleach or produce their own chlorine on-site as needed through a salt-and-electricity process. Wastewater plants can also use ultraviolet light for disinfection.
“By generating chlorine ‘just-in-time,’ bleach plants remove the bulk storage of railcars of chlorine gas at their facilities, while also taking these hazardous railcars off the rail lines,” the report said.
Clorox, for example, has phased out the storage and use of chlorine railcars from seven U.S. facilities, and more than 550 drinking water and wastewater plants in 47 states switched to safer chemicals or processes, the Center for American Progress reported in 2010. As a result, “More than 40 million Americans are no longer in danger of harm from a terrorist-released or accidental toxic gas plume,” the group said.
Frank Reiner, president of the Chlorine Institute, dismissed the Greenpeace report and what he called “tired, alarmist arguments of the past.”
“Dramatic safety and security enhancements regarding the production and transportation of bleach and chlorine were undertaken after 9/11 as industry and government cooperated on new regulations, information and intelligence gathering, and sharing safer and best practices,” Reiner said in an email.
Greenpeace also called on the U.S. Environmental Protection Agency to require bleach facilities to adopt safer technologies wherever feasible when the agency issues its new risk management program next month.
An EPA spokesperson said the agency will review the Greenpeace report, adding that she could not comment on the risk management report before it is publicly released.But Rick Hind, legislative director of Greenpeace’s toxics campaign, said President Barack Obama supports safer technologies for the chemical industry, and the EPA has the authority to demand such a switch.
“This is a legacy issue for Obama, and the real risk here is the EPA going far astray,” Hind said. “We’re trying to do everything we can to show them the way to thread the needle.”
On the local level, he said concerned citizens should petition mayors and city councils in communities with “high-risk treatment plants” to convert those plants to safer technologies.
The conversion could save taxpayer dollars as well as lives. “About one-third of the treatment plants that have been converted are actually saving money,” Hind said.
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House Dems Want Tighter Restrictions In Refuges And Parks
Feb 9, 2016 | E&E Daily News
By Corbin Hiar
Nearly 60 House Democrats today called on Interior Secretary Sally Jewell to finalize tighter restrictions on oil and gas operations in the national wildlife refuges and national parks.
In a letter circulated by Reps. Alan Lowenthal of California and Niki Tsongas of Massachusetts, the ranking members of the Natural Resources Subcommittee on Energy and Mineral Resources and the Subcommittee on Federal Lands, respectively, the Democrats said existing rules "are inadequate, putting these precious lands and the wildlife that depend on them in unnecessary danger."
Lowenthal, Tsongas and 55 other Democrats said "the proposed rules are a major improvement that will provide additional safeguards for lands, wildlife, and the American taxpayer, and we urge you to finalize them at the earliest possible opportunity."
The letter was sent on the last day of the comment period for a major Fish and Wildlife Service proposal to increase oversight of thousands of oil and gas operations in national wildlife refuges. Government watchdogs have been calling for FWS, which like the National Park Service is a part of the Department of the Interior, to strengthen its oil and gas regulations for decades (Greenwire, June 12, 2015).
That sweeping FWS rule would require companies that want to modify their wells or drill new ones to obtain permits from the agency and sets tough new standards for all operations that cover everything from waste management to unused infrastructure. The proposal also would require permits for well plugging, access fees for disturbing refuge lands or waters, and flexible bonding standards (Greenwire, Dec. 10, 2015).
The National Park Service's draft rule, which has been in the works since 2009 and was released last fall, seeks to close a loophole in its oil and gas regulations that has allowed 60 percent of operators to produce fuels inside the park system with limited agency oversight. The proposal would also allow NPS to determine the amount of money operators need to set aside for reclamation efforts, increase the agency's enforcement powers and allow NPS to charge a fee for using park lands to, for example, build pipelines or roads that connect to a well site (Greenwire, Oct. 26, 2015).
"We are strongly supportive of the recent improvements proposed to NPS and FWS regulations," the House Democrats told Jewell. Such changes "are long overdue, and we commend both the NPS and FWS for moving forward to protect the lands under their purviews."
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California Approves Emergency Gas Storage Field Rules
Feb 9, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Daily inspections of wellheads and other testing and monitoring are now required at underground natural gas storage fields, under regulations California's Office of Administrative Law approved.
Approved Feb. 5, the emergency regulations come in response to the massive leak discovered at the Southern California Gas Co.'s underground storage facility in October.
“These regulations are in effect immediately and require all gas storage companies to complete enhanced inspections and testing at every gas well in California,” State Oil and Gas Supervisor Ken Harris said in a written statement. “We intend to make these emergency regulations a permanent requirement in California and are committed to strong oversight measures that help ensure the health and safety and environmental protection of this state.”
The California Department of Conservation's Division of Oil, Gas and Geothermal Resources (DOGGR) submitted the regulations to the Office of Administrative Law in January. The rules will remain in effect for six months but may be extended as DOGGR develops permanent regulations, the state said.
DOGGR's emergency rules require each storage facility to have a “comprehensive” risk management plan, one that considers the corrosion potential of pipes and equipment. Other requirements include daily inspections of gas storage wellheads using infrared imaging leak detection technologies; ongoing verification of the integrity of all wells; ongoing measurement of annular gas pressure or annular gas flow within wells; and regular testing of all safety valves.
The regulations also require minimum and maximum pressure limits be established for each gas storage facility in the state.
‘Significant First Step.'
DOGGR's new requirements “are a significant first step” toward modernizing the gas storage safety practices and helping to prevent another disaster like the leak at the SoCalGas facility in Aliso Canyon, the Environmental Defense Fund said in a Feb. 8 written statement. More leak-detection requirements are needed, and the state's rules for permitting and the construction of wells must be updated, the groups said.
“While much more work is needed to bring the state's decades-old natural gas storage requirements into the modern age, regulators made important advancements with these emergency rules,” Scott Anderson, a senior policy director at the Environmental Defense Fund, said. The rules put in place new well integrity safeguards and call for information needed to help with the upcoming permanent regulations, he said.
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House Oversight Probes BLM Law Enforcement
Feb 9, 2016 | E&E Daily News
By Phil Taylor
Two Western leaders on the House Oversight and Government Reform Committee last week said they're concerned over allegations that Bureau of Land Management police officers have overstepped their authority and intimidated local citizens in Utah and Nevada.
Chairman Jason Chaffetz (R-Utah) and Subcommittee on the Interior Chairwoman Cynthia Lummis (R-Wyo.) said they want detailed information on BLM's termination of law enforcement contracts with Utah sheriffs and its decision to seek more amenities for its employees in exchange for permitting the Burning Man festival in Nevada, among other pieces of information.
In a letter last Thursday to BLM Director Neil Kornze, the lawmakers cited "increasing complaints" about agency activities in those states as well as allegations of "bullying" and "intimidation" by BLM rangers.
"BLM's officers allegedly harass citizens and tourists, interfere with the work of local law enforcement, operate outside of their jurisdictions, and refuse to cooperate with local officials," Chaffetz and Lummis wrote. "The situation has led some local counties to declare the presence of BLM law enforcement in Utah and Nevada 'a threat to the health, safety and welfare of their citizens.'"
A BLM spokesman said the agency is reviewing the letter and had no comment at this time.
The letter cites frustrations over BLM's decisions in recent years to allow most of its contracts with Utah law enforcement offices to expire.
Throughout the West, BLM offers reimbursable contracts for local sheriffs offices to provide added patrols on public lands such as high-use campgrounds or during special recreation events or holiday weekends. BLM frequently also pays sheriffs to use their dispatch services.
BLM in 2014 said it allowed some contracts to expire to evaluate whether they're still worth the money, and others were deemed no longer needed (Greenwire, July 17, 2014).
Chaffetz and Lummis said the decisions have created a "law enforcement vacuum" and caused economic hardship for local governments.
They asked that BLM by Feb. 18 provide any documents and communications pertaining to BLM's decision to terminate or not renew the contracts and its demand for issuing a Burning Man permit. They also requested any records of discussions between BLM law enforcement and state and local officials in Nevada and Utah and among BLM law enforcement personnel referring or relating to state and local officials in those states over the past six years.
Tensions between BLM law enforcement and Western county officials seem to have risen in recent years, fueled by local frustrations over the Obama administration's protection of lands and wildlife. The tension is not surprising given that BLM officers must enforce federal environmental protections that some in the West disagree with.
BLM has 225 or so law enforcement rangers and 70 special agents who help protect wildlife, habitats, minerals, timber and archaeological treasures across a massive, 250-million-acre estate. It works well with most of the more than 200 Western sheriffs who share jurisdiction on federal lands, officials have said.
It is unclear what the committee intends to do with information it receives. A Chaffetz spokeswoman said there are no hearings currently in the works.
A House Natural Resources panel held a hearing in the summer of 2014 on federal "bullying," where a Utah county commissioner testified on what he called the "militarization" and "heavy-handed authority" of BLM officers.
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House Panel Sets Vote On Emissions, Infrastructure Bills
Feb 9, 2016 | E&E Daily News
By Hannah Hess
A House Energy and Commerce subcommittee will vote Thursday on a dozen bills, including two measures to counter certain U.S. EPA emissions rules and legislation addressing various permitting and rate-setting processes at the Federal Energy Regulatory Commission.
The Subcommittee on Energy and Power is slated to mark up H.R. 3797, a measure sponsored by Rep. Keith Rothfus (R-Pa.) to relax emissions requirements on power plants that burn coal refuse.
The panel will also take up legislation to block the agency from enforcing emissions restrictions on brick and clay ceramic manufacturers until all lawsuits against the new rules are put to rest (E&E Daily, Feb. 1). Rep. Bill Johnson (R-Ohio) plans to sponsor the legislation, according to a spokesman.
At a subcommittee hearing last Wednesday, supporters of both that bill and Rothfus' measure said they are needed to keep plants open and preserve jobs.
Critics said they would result in more pollution and, in the case of the Rothfus measure, put other coal-fired plants at a regulatory disadvantage.
Also on the agenda is H.R. 3021 by committee member Rep. Mike Pompeo (R-Kan.), which would amend the Natural Gas Act to allow the use of aerial survey information for FERC natural gas infrastructure reviews. A FERC official said last week the bill could lead to unintended consequences (Greenwire, Feb. 2).
The subcommittee, chaired by Rep. Ed Whitfield (R-Ky.), will convene tomorrow evening for opening statements only. The subcommittee will reconvene Thursday for the actual voting.
"Collectively, these dozen bills demonstrate our commitment to strengthening and modernizing our energy infrastructure, creating jobs, and protecting manufacturers and businesses from harmful EPA and [Energy Department] rules," Whitfield said.
Members will also consider the following bills: H.R. 2984, from Rep. Joe Kennedy (D-Mass.) and a number of lawmakers from both parties, would create an opportunity for the rehearing of FERC orders affecting electricity rates. H.R. 4444, from Rep. Renee Ellmers (R-N.C.), would exempt power supplies for LED lighting -- known as solid-state lighting drivers -- from a new energy efficiency rule. H.R. 4427, from Pompeo, would clarify FERC jurisdiction in reviewing sales of certain generating facilities under the Federal Power Act. H.R. 4238, from Rep. Grace Meng (D-N.Y.), would modernize terms in the U.S. Code referring to minority groups.
Five bills would require FERC to reinstate expired licenses for hydropower projects that lapsed after developers didn't commence construction within the time frames required under agency rules.
The bills would extend the start time for construction of projects in Montana, New York, Maryland, West Virginia and North Carolina up to eight years. H.R. 2080, from Rep. Ryan Zinke (R-Mont.), involves a project at the Clark Canyon Dam in Montana. H.R. 2081, also from Zinke, involves a project at the Gibson Dam in Montana. H.R. 3447, from Rep. Virginia Foxx (R-N.C.), involves a project at the W. Kerr Scott Dam and Reservoir in North Carolina. H.R. 4416, from Rep. David McKinley (R-W.Va.), involves a project at the Jennings Randolph Lake dam in West Virginia. H.R. 4434, from Rep. Chris Gibson (R-N.Y.), involves a project at the Cannonsville Dam in New York.
Schedule: The markup is Wednesday, Feb. 10, at 5 p.m. in 2123 Rayburn. The panel will reconvene Thursday, Feb. 11, at approximately 11 a.m.
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No Agreement on Energy Bill Seen as Time Runs Short
Feb 9, 2016 | BNA Daily Environment Report
By Ari Natter
No deal has been reached during negotiations on an energy bill amendment to provide aid for the water crisis in Flint, Mich., casting doubt on the fate of the broader legislation.
Negotiations were continuing late Feb. 8 on a compromise measure that would put the 424-page energy bill (S. 2012) and legislation to help Flint deal with its lead-tainted water on separate tracks, but senators emerged from a meeting saying a deal had yet to be reached.
“It could get back on track, but I think for now we are pivoting to North Korea and other stuff,” Sen. John Thune (R-S.D.), the Senate's No. 3 Republican, told Bloomberg BNA, adding the energy legislation was unlikely to get a vote this week.
The logjam comes as Democrats, who have been seeking as much as $600 million in direct spending to help Flint replace its lead-tainted water infrastructure and for other measures, made good on a promise to block the bill from moving forward Feb. 4 (24 DEN A-5, 2/5/16).
In a statement earlier Feb. 8, Sens. Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Wash.), the chairman and ranking member of the Senate Energy and Natural Resources Committee, said they were trying to reach an agreement to move forward with the bill and with a separate measure to address Flint.
Separate Flint Measure
“With our time on the Senate floor running short, we are working toward an agreement to allow our energy bill to move forward,” the senators said. “At the same time, we are working to help advance a measure to address the Flint water crisis and hope that it will be brought up as soon as possible.”
A compromise measure, being negotiated by Sens. Debbie Stabenow (D-Mich.) and James Inhofe (R-Okla.), was being scored by the Congressional Budget Office but had run into resistance by a senator, a Republican senator told Bloomberg BNA on background without elaborating.
The five-part legislation, which had been more than a year in the making, includes language to expedite the federal approval process for liquefied natural gas exports among many other measures, including provisions that would increase cybersecurity protections for the electricity grid and expedite the licensing process for hydropower projects. If enacted, it would be the first broad rewrite of energy policy since the Energy Independence and Security Act of 2007.
Crisis in Flint
The crisis in Flint emerged after the state's appointed emergency manager decided to switch from the city of Detroit's water system to using water from the Flint River, but measures to control corrosion weren't put in place at the time of the switch. This allowed lead to leach out of aging pipes and into residential tap water and resulted in elevated levels of lead in children's blood and other health issues (09 DEN A-2, 1/14/16).
“It's disappointing for our country. We're hoping our [Democratic] friends will reconsider,” Senate Majority Leader Mitch McConnell (R-Ky.) said on the Senate floor Feb. 8. “I'm asking colleagues to take ‘yes’ for an answer and allow the open amendment process to continue so that we can pass it.”
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Down To The Wire For Senate Package
Feb 9, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
Senators from both parties are scrambling to save the bipartisan energy package from collapsing under the political weight of the Flint, Mich., drinking water crisis.
With the Senate scheduled to move on to other business tomorrow morning, key senators huddled on the floor last night to talk strategy for providing federal assistance for Flint -- a key demand of Democrats, who filibustered a pair of procedural motions for the underlying energy bill (S. 2012) last week to maintain leverage on the issue.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) told E&E Daily last night that she and ranking member Maria Cantwell (D-Wash.) are seeking an agreement that will allow them to continue to process other amendments to the bill while discussion of the various Flint amendments continues.
Murkowski plugged her own amendment, which would eventually hand Flint $550 million, with $50 million upfront. "I think that's a good approach, a fair approach," she sai
However, there are also serious discussions about a separate Flint aid package, which would disentangle the issue from the energy package."These are all avenues that are being pursued," Murkowski said.
Cantwell said a separate Flint bill would help address a possible constitutional hurdle for tackling the issue in the energy package: the requirement that revenue measures originate in the House, which can "blue slip" Senate bills that run afoul of the rule.
But she was noncommittal on the option. "People are open to a lot of different ideas," Cantwell told reporters, adding that she was more optimistic than she had been last week. "I think we're closer than we were on Thursday."
Sen. Gary Peters, who along with fellow Michigan Democrat Debbie Stabenow has been leading the charge on Flint in the upper chamber, told E&E Daily that progress had been made over the weekend.
"We have a deal structured," he said last night. "I think we're close, hopefully, to coming together. I think we have a framework that is workable."
Peters and Stabenow both said that a separate Flint bill is a possibility. Senate aides say that would have the advantage of not having to wait for the energy bill to be conferenced with the House's companion -- delivering assistance to Flint sooner -- but it would also require agreement from all senators to bring it to the floor quickly.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said he is working on a revised version of his earlier amendment that would make funding from key water infrastructure programs available to states experiencing lead emergencies. Stabenow rejected Inhofe's earlier proposal because it would have been offset by rescissions from the Energy Department's Advanced Technology Vehicles Manufacturing loan program -- which is key to Michigan.
Stabenow is "going to have a hard time getting her way on this" because of the size of grants she has proposed, Inhofe said. "We have something we're going to throw out there that [the Congressional Budget Office] is scoring right now," he said.
Senate Majority Whip John Cornyn (R-Texas) said Murkowski has the "patience of Job" and praised her for continuing to work with Democrats. "So we haven't given up," Cornyn said.
"There's a lot of Democrats who expressed concern about the 'no' vote on cloture and have been pushing on Senator Stabenow to come up with a solution on Flint, because this is very much a bipartisan bill," he said. Budget requests
The down-to-the-wire talks come ahead of today's release of the Obama administration's fiscal 2017 budget request, which is expected to call for a modest increase in U.S. EPA's Drinking Water State Revolving Fund.
The administration yesterday also said it would request $1.8 billion to prepare for the Zika virus, which has been spreading through South and Central America. House Minority Leader Nancy Pelosi (D-Calif.) yesterday said an emergency funding request from the White House on the virus could also include aid for Flint (E&ENews PM, Feb. 8).
Maryland Sen. Barbara Mikulski, the senior Democratic appropriator, said she backs emergency funding for combating the Zika virus and replacing lead-filled water pipes in Flint. "Let's get the lead out of our pipes," said Mikulski, adding that Congress should do more to protect the nation's infrastructure.
Senate Minority Whip Dick Durbin (D-Ill.) said he, too, thought a request for Zika funding would be an appropriate vehicle for helping Flint.
"I think that's perfect," he told E&E Daily yesterday. "Both of them are public health emergencies."
But when asked if a White House request for funds for both issues would help disentangle the energy bill from the Flint fight, Durbin responded, "Only if it's a must-pass vehicle."
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North Dakota: States Should Set Power Plant Standards
Feb 9, 2016 | BNA Daily Environment Report
By Andrew Childers
It's up to states and not the Environmental Protection Agency to set carbon dioxide emissions limits for existing power plants, North Dakota argued in a Feb. 8 U.S. Supreme Court filing in support of petitions to stay implementation of the Clean Power Plan (West Virginia v. EPA, U.S., No. 15A773, reply filed 2/8/16).
North Dakota argued that the Clean Power Plan should be stayed during the upcoming litigation over the rule because it violates the plain text of Section 111(d) of the Clean Air Act which directs the EPA to “prescribe regulations which shall establish a procedure” states will use to set the performance standards themselves. Instead, the EPA set carbon dioxide emissions limits for the power sector in each state as part of the Clean Power Plan (RIN 2060-AR33).
“Although Section 111(d) limits EPA's existing source authority to establishing procedures for state plan submittal, the existing source rule establishes emissions reduction targets for each state and also requires states to develop and implement plans that will meet those targets in a legally enforceable way,” North Dakota said.
States and industry groups opposed to the Clean Power Plan have asked the Supreme Court to stay the rule during the upcoming litigation after the U.S. Court of Appeals for the District of Columbia Circuit denied a similar request (25 DEN A-2, 2/8/16).
Useful Life Not Considered
North Dakota also argued that the EPA's rule doesn't allow states to consider the remaining useful life of regulated power plants as envisioned by Section 111(d) when determining how best to comply with the carbon dioxide standards.
“EPA merely asserts in one conclusory sentence that the rule does allow states to do so.” North Dakota said. “But the plain import of the statutory directive is that any Section 111(d) rule must contain a specific provision that addresses and permits accommodation of the remaining useful life of existing sources.”
The EPA and supportive utilities and environmental groups have argued that the stay petitions to the Supreme Court are unprecedented and premature given that the D.C. Circuit has yet to hear arguments on the rule's merits (24 DEN A-1, 2/5/16).
The D.C. Circuit has already scheduled oral arguments in challenges to the Clean Power Plan for June 2 and possibly June 3 as well. Arguments will be heard by Judges Karen LeCraft Henderson, Judith Rogers and Sri Srinivasan (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16).
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Focus Turns To State Agency Coordination On Carbon Rule
Feb 9, 2016 | E&E Daily News
By Emily Holden and Rod Kuckro
The first 2016 meeting of the "3N" members occurs Thursday and Friday in Washington, D.C., at the conclusion of the National Association of State Energy Officials' three-day Energy Policy Outlook Conference.
Each Monday, Power Plays previews upcoming moves on the way to Clean Power Plan compliance and recaps the week's developments.
NASEO is hosting the workshop on how state agencies are working together on the U.S. EPA Clean Power Plan, including members of the National Association of Regulatory Utility Commissioners and National Association of Clean Air Agencies. EPA Administrator Gina McCarthy will deliver a keynote address on Thursday afternoon. E&E reporters will be there.
Today, Minnesota regulators will host a webinar on "leakage" under mass-based compliance strategies for the Clean Power Plan. The state has not determined whether it will use a mass- or rate-based compliance strategy, but officials say the topic is ripe for discussion. Presenters include Chris Van Atten of M.J. Bradley & Associates, Anthony Paul of Resources for the Future, and Michael Schnitzer from NorthBridge Group.
Minnesota also begins its series of community listening sessions on the Clean Power Plan in St. Cloud tomorrow. Additional meetings are scheduled later this month for Marshall, Bemidji and Duluth. ClimateWire reporter Daniel Cusick will be following these and other events from the Twin Cities.
On Wednesday, the Arizona Department of Environmental Quality will hold in Phoenix its 13th stakeholder meeting on the Clean Power Plan. The discussion will include the evaluation of potential compliance options based on 10 principles.
On Thursday, the Electric Power Research Institute and Resources for the Future plan a seminar in Washington, D.C., on modeling compliance pathways for states. ClimateWire's Elizabeth Harball will be reporting.
On Friday in Richmond, Va., the Virginia Department of Environmental Quality will convene another meeting of its Clean Power Plan to look at elements that could be included in the state compliance plan. ClimateWire's Emily Holden will be reporting.
In case you missed it: Georgia is the latest state to weigh an interstate power compact to insulate itself from U.S. EPA's Clean Power Plan (EnergyWire, Feb. 5). In Missouri, utilities and other parties unanimously favor a "mass-based" plan to cap power plant carbon dioxide emissions and trading of emissions allowances. But there is far less agreement about other key decisions facing state air regulators (EnergyWire, Feb 5). EPA tells the Supreme Court that halting the Clean Power Plan would delay critical greenhouse gas reductions and undermine a global effort to address climate change (EnergyWire, Feb. 5). Despite the heavy litigation surrounding the Clean Power Plan, state regulators and industries are hustling to comply, a top U.S. EPA air attorney said (Greenwire, Feb. 4). Idaho is inclined to submit to EPA in September a compliance plan for the agency's controversial carbon rule and ask for a two-year extension to work out the details of coordinating compliance with adjoining states, according to state officials (EnergyWire, Feb. 4). The nine-state Regional Greenhouse Gas Initiative is continuing to weigh linking its cap-and-trade system with other states that will use carbon markets to comply with federal climate change regulations (ClimateWire, Feb. 3).
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State Plans To Stymie EPA Rules Running Into Unlikely Resistance
Feb 8, 2016 | PoliticoPro
By Alex Guillén
State legislators around the country are working to undermine EPA’s landmark plan to reduce power plants’ carbon emissions, but they are running into resistance from an unlikely source: The utilities who would have to live by those rules and their allies in the business community.
In at least a dozen states, lawmakers or other officials are working to stymie cooperation with EPA, including by giving legislatures veto power over environmental regulators' climate plans, designing plans meant to be rejected or simply refusing to participate.
The mostly Republican-led efforts are aimed at complementing a lawsuit from officials in 27 states seeking to overturn the carbon rule in court. It remains to be seen how many are successful, but utilities and other industry groups say they could backfire if EPA eventually wins at the Supreme Court and states do not have plans ready to go.
For example, the Ohio Chamber of Commerce is worried about a proposed bill two Republican lawmakers are pushing that would let the state legislature veto compliance plans.
“A preemptive strike of legislative approval right now, I think, could potentially slow down or potentially be redundant,” said Charles Willoughby, director of energy and environmental policy at the Ohio Chamber of Commerce, referring to the proposed Ohio legislation. “If Ohio EPA or if a state environmental agency is doing their due diligence and communicating with the industries about their concerns, legislative approval is almost a redundant step.”
Environmentalists, too, would prefer state legislators let their environmental regulators work with little interference. Even in a Republican-governed state like Ohio where coal still dominates the energy mix, state regulators have “the flexibility to write the best plan,” says Samantha Williams, an attorney and policy advocate in NRDC’s Midwest program.
"It may end up just handing the keys over to U.S. EPA to put a federal plan on the state,” Williams said of the bill to require legislative approval of a state climate plan. “And I think Ohio, just like lots of other places, has recognized that that’s not the best path forward for their future."
Since EPA first proposed its Clean Power Plan two years ago, state lawmakers have enacted laws aimed to block it, mostly in chambers controlled by Republicans. Now that the rules are final, lawmakers want to make sure they weigh in before states have to file reports to EPA or formally request extensions in September.
“It’s important that our agencies at the state level understand that we are not in favor of having the plan imposed on us,” said Florida Rep. Manny Diaz Jr., who is pushing a bill that would block the state from submitting a plan until the rule survives court challenges.
But soon after Diaz introduced his bill, utility interests warned it could backfire. Frank Matthews, an attorney representing utilities organized as the Florida Reliability Coordinating Council, warned of “grave concerns” during a subcommittee hearing last month. Following that warning, legislators agreed to amend the bill to ensure that Florida regulators could request an extension in September. It remains to be seen whether the bill makes it to Gov. Rick Scott, who has said he opposes the EPA rule.
Several states — West Virginia, Arizona, Arkansas, Tennessee and Pennsylvania — have already enacted bills giving lawmakers veto power over any potential plan. In other states, such as Kentucky and Louisiana, legislatures have voted to limit how aggressive their environmental regulators can be.
Largely symbolic efforts also are being advanced in various states. In Virginia, New Hampshire and Pennsylvania, where Democratic governors support the Clean Power Plan, Republican lawmakers are pursuing legislation to block the plans that stands little chance of being implemented. And in Georgia, a Republican state senator is pursuing a long-shot effort to partner with at least one of its neighbors in an interstate compact to enforce the Clean Air Act, inspired by past failed efforts to let states take over health programs such as Medicare.
But in virtually all cases, states have made sure to stop short of full defiance. Even some of EPA’s harshest critics say that approach is acceptable — as long as states don’t commit themselves to shuttering coal plants or making other dramatic changes before the Supreme Court weighs in. The key is to avoid a repeat of the mercury rule, which was sent back to the agency after it had mostly gone into effect.
“What EPA would like is for states to make the commitments so that even if part of the rule is struck down in the future, maybe even the entire rule, they will have achieved much of their goals,” Daniel Simmons, vice president of policy at the American Energy Alliance, a Koch brothers-linked group that opposes the Clean Power Plan.
States should ask for the extra two years, Simmons added.
“The key is not to make commitments so you start shutting down power plants before there’s been legal resolution on the regulation itself,” he said.
So far, the only state fully refusing to go along is Oklahoma, where Republican Gov. Mary Fallin in 2015 issued an executive order preventing the state Department of Environmental Quality from developing a plan or asking EPA for more time.
Regulators elsewhere generally can still ask for extensions and take other steps to prevent the agency from imposing its federal compliance plan, which utilities worry could be more costly than plans designed closer to home.
EPA has said it listened to states’ concerns before updating the targets in its final rule and has promised to be generous in granting extension requests. That gives state regulators and lawmakers more time to “work through the issue” and has reduced pressure for legislatures to step in, said Doug Scott, vice president of strategic initiatives are the Great Plains Institute, a group working with Midwestern states on compliance plans.
“I get a sense that there’s less pressure to do things like that than there was last year or the year before, before the final rule came out,” he said.
In states that submit a weak plan or refuse to act, EPA has said it will step in to impose its federal plan, which has yet to be finalized but may allow trading credits or allowances with some other states.
North Carolina regulators are daring EPA to reject a state plan they are assembling — part of a legal strategy that would let it challenge the scope of EPA’s rule in court. However, the state is also designing a fallback plan it says could be approved.
The strategy is running into resistance from North Carolina’s largest utility, who encouraged it to take a less antagonistic approach, according to the Triangle Business Journal.
“Quite frankly, the approach our state is taking is one that is not collaborative,” Duke Energy executive Mike McIntire said. “We are continuing to encourage the Department of Environmental Quality to think a little bit larger — let’s bring all the stakeholders in the room.”
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EPA Pushes Back On Bid To Stay Utility MACT Suits
Feb 8, 2016 | InsideEPA
EPA is reiterating its opposition to power industry groups' motion to keep in abeyance some lawsuits over various provisions in the agency's revised utility maximum achievable control technology (MACT) air toxics rule, saying the request is based on waiting for a final MACT cost review that is “irrelevant” to the delayed litigation.
The Utility Air Regulatory Group (UARG) and Pennsylvania power generator ARIPPA are urging the U.S. Court of Appeals for the District of Columbia Circuit to keep the suits over various provisions in the rule in abeyance until EPA finalizes its proposed cost review for the rule, which the agency intends to finalize by April 16.
The finding, a prerequisite to MACT regulation of utilities, is necessary following the Supreme Court's ruling last year in Michigan v. EPA that EPA failed to consider costs in its initial determination that the utility MACT was “appropriate and necessary” under the Clean Air Act. The D.C. Circuit allowed the MACT rule to stay in effect while EPA reworks the supporting “supplemental” cost finding, which concludes that the regulation is still necessary.
The groups say their issues in ARIPPA v. EPA, et al. are distinct from those raised by environmentalists and Hawaiian power generation interests, and should be severed into new suits and held in abeyance.
EPA, however, is seeking to keep the four suits consolidated under ARIPPA as one and proceed to trial. ARIPPA, a Pennsylvania utility burning waste coal, says the MACT rule discriminates against waste coal use, while UARG, representing other utilities, challenges EPA’s emissions data and consequent cancer risk estimates for hazardous air pollutants other than mercury.
The Department of Justice (DOJ) in a Feb. 8 filing reiterates its opposition to keeping the suits in abeyance, saying, “UARG and ARIPPA’s claim of a relationship between their claims in this case and the proceeding for the Supplemental Finding is meritless. The only issue presented by this case is whether EPA properly denied reconsideration. That issue is completely irrelevant to the Supplemental Finding.”
DOJ says “the issues presented by the petitions for review are ripe for decision now and dividing the case into segments to be briefed and argued on different schedules is an inefficient use of the resources of both the Court and the parties.”
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8th Circuit Reiterates Finding Of CSAPR Satisfying Haze Air Plan Mandate
Feb 8, 2016 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the 8th Circuit in a new ruling is reiterating its earlier finding that EPA's Cross-State Air Pollution Rule (CSAPR) can satisfy some emissions control requirements in states' plans for complying with the agency's regional haze program, even as the D.C. Circuit grapples with an EPA rule on the issue.
In a unanimous Feb. 3 ruling in National Parks Conservation Association (NPCA), et al. v. EPA, et al., Judges William Riley, Kermit Bye and Duane Benton deny legal challenges to a federal implementation plan (FIP) to cut haze that the agency imposed on Nebraska. The court rejects environmentalists' claim that the plan is too weak and also Nebraska’s claim that it is too strict.
The ruling is the second time within weeks that the 8th Circuit has upheld the principle that participation in the CSAPR emissions trading program can satisfy a regional haze program mandate to impose best available retrofit technology (BART) on industrial air pollution sources. The haze program requires the installation of BART in order to cut haze-forming emissions and restore visibility in national parks and wilderness areas by 2064.
States must craft state implementation plans (SIPs) outlining the haze controls they will impose on industry and submit them to EPA for its approval. If states fail to submit a plan, or submit a plan the agency deems inadequate, then EPA can write a FIP in which it directly decides the pollution control measures for that state.
In the first phase of the haze program's implementation -- now largely concluded -- states had to apply BART to sources they found eligible, such as coal-burning power plants. When Nebraska submitted a SIP for EPA's approval that lacked BART controls for haze-forming sulfur dioxide (SO2) from the power plant Gerald Gentleman Station, EPA rejected the plan and imposed a FIP saying the plant's participation in CSAPR satisfied BART.
The state sued, claiming the FIP usurped its authority to determine its own emissions controls, while environmental groups objected to the use of CSAPR trading as a substitute for source-specific BART controls. CSAPR is designed to cut SO2 and nitrogen oxides emissions from power plants, though companies can choose to comply either by installing emissions controls or purchasing compliance credits in lieu of reducing emissions.
Source-Specific BART
EPA issued a national rule underscoring its policy that CSAPR is a substitute for source-specific BART, and a suit challenging that rule, Utility Air Regulatory Group, v. EPA, is pending in the D.C. Circuit. Other circuits have deferred to the D.C. Circuit's authority to hear challenges to national rules and not weighed in on the issue.
But although the D.C. Circuit case is still ongoing, the 8th Circuit's Benton has now issued two opinions that back the position that CSAPR, also known as the Transport Rule, is equivalent to BART.
In his Feb. 3 opinion, Benton says the “court has jurisdiction over their petition for review, including the challenge to EPA’s reliance on the Transport Rule, because the plan is a locally or regionally applicable action,” and notes that the agency never issued a finding that the FIP has nationwide effect, which would give the D.C. Circuit jurisdiction over it.
Benton concludes that EPA acted within its discretion in finding that CSAPR participation satisfies BART for the Nebraska FIP, even though it would result in more pollution from the affected plant, because EPA found that CSAPR is “better than BART,” on average nationwide.
Benton's opinion says EPA acted within its discretion in issuing the FIP to Nebraska, because the state made errors in estimating the cost of control technologies. “Given Nebraska’s errors and EPA’s determination that Nebraska’s action was unreasoned, this court denies Nebraska’s petition for review,” Benton writes.
The outcome of the case with respect to BART mirrors a Jan. 21 unanimous ruling by the court in another case also titled NPCA et al. v. EPA, this time over a haze plan for Minnesota. In that case, the court's opinion, also authored by Benton, also upholds CSAPR as a suitable alternative to source-specific BART, while Bye in the case authored a concurring opinion, finding that the court lacks jurisdiction over the issue. In a similar concurring opinion in the Feb. 3 case, Judge Bye says, “I do not believe we have jurisdiction over the conservation organizations' petition for review,” citing precedent in the 3rd Circuit where that court found a similar challenge to the CSAPR/BART policy in a Pennsylvania haze plan case belonged in the D.C. Circuit.
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Advocates: Cross-State Proposal Not Strong Enough
Feb 9, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental and public health groups urged the Environmental Protection Agency to revise a proposal on power plant emissions that cross state lines to require further reductions of nitrogen oxides.
The advocacy organizations said in comments that an EPA proposal to revise the emissions budgets that states are subject to the agency's Cross-State Air Pollution Rule doesn't go far enough to help downwind areas comply with the 2008 national ambient air quality standards for ozone of 75 parts per billion. The groups urged the agency to set lower emissions budgets and prohibit the use of emissions credits earned under the initial Cross-State Rule to ensure that power plants actually reduce their emissions.
The American Lung Association said in its comments that the EPA's proposal wouldn't result in an adequate amount of emissions cuts to protect millions of people downwind of power plants from being exposed to unsafe concentrations of ground-level ozone. Exposure to high levels of ozone is linked to a variety of respiratory and cardiovascular effects, including asthma attacks.
“EPA argues that to meet the 2018 deadline for action, the limited steps they propose are all that can be realistically done,” the American Lung Association said. “But the law requires EPA to provide protection, not excuses for inaction.”
The November proposed rule (RIN 2060-AS05) would set new emissions budgets for 23 states to cap nitrogen oxides emissions—an ozone precursor—from the power sector. The EPA projected that the proposal would reduce nitrogen oxides emissions by about 85,000 tons by 2014 at an annual cost of about $97 million (222 DEN A-11, 11/18/15).
Emissions Budgets
The emissions budgets established under the Cross-State Air Pollution Rule are designed to fulfill the Clean Air Act's “good neighbor” provision, which requires upwind states to control emissions that prevent downwind areas from attaining or maintaining national air standards for ozone and other criteria pollutants.
Janet McCabe, EPA acting assistant administrator for air and radiation, has described the proposed update rule as using an established approach for addressing the good neighbor obligations that has been sanctioned by the U.S. Supreme Court, which upheld the framework of the Cross-State Rule in 2014 (EPA v. EME Homer City Generation LP, 134 S. Ct. 1584, 78 ERC 1225, 2014 BL 118432 (2014); 83 DEN A-1, 4/30/14).
Several states and power sector organizations objected to the EPA's proposal to update the emissions budgets, which they argued would require more pollution reductions than necessary and provide an inadequate amount of time for compliance (25 DEN A-3, 2/8/16).
Interstate Contributions Not Fully Resolved
However, a coalition of four advocacy groups alleged in comments that the EPA's proposal wouldn't fully resolve interstate contributions under the 2008 ozone standards.
The groups, including the Sierra Club and the National Parks Conservation Association, cited language in the EPA's own proposal, which admitted that the agency did not attempt to quantify the nitrogen oxides reductions that may be necessary to eliminate all significant contributions to downwind nonattainment and interference with maintenance.
Instead, the environmental groups said, the agency calculated its emissions budgets based on an examination of potential mitigation strategies that could be implemented by 2017. That decision “largely limited” the EPA to reductions available from power plants operating existing controls, rather than the more significant pollution cuts that could be achieved through the installation of new selective catalytic reduction or selective non-catalytic reduction systems, the groups said.
“The final rule must include emissions reductions necessary to resolve transport issues, not merely reductions that are readily achievable,” the advocacy organizations said.
Concern Over Banked Credits
The American Lung Association and the Sierra Club coalition both urged the EPA to disallow emissions credits earned under the initial Cross-State Air Pollution Rule from being used to fulfill obligations under the new emissions budgets.
The EPA in its proposal said that the total banked allowances for the ozone-season emissions trading program under the Cross-State Rule could be more than 210,000 tons, which is more than twice the amount of projected reductions under the proposal. The agency proposed that the banked credits be allowed to be used to meet pollution reduction requirements on a two-for-one or four-for-one rate.
The Sierra Club coalition said the large number of banked credits is the result of a three-year stay of the Cross-State Rule while the regulation was litigated.
“Given the relatively moderate reductions contemplated under the draft update, inclusion of these credits from the first [Cross State Air Pollution Rule] into CSAPR 2 could well mean that the update has little to no impact on real-world emissions whatsoever,” the advocacy groups said.
EPA Shouldn't Allow Banked Credits to be Used
The American Lung Association agreed that the EPA should not allow banked credits to be used under the new emissions budgets, a decision the association said would create a “dangerous policy precedent” that would reward utilities that successfully fought to halt implementation of the Cross-State Rule during legal proceedings. The association suggested that if the EPA does decide it is necessary to allow use of the banked credits, the EPA should “raise the bar” above the proposed surrender ratio.
“Even the stronger of those proposed ratios, four-for-one, is too generous and should be strengthened,” the association said.
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Advocates' Opposition To Senate Ash Bill Might Limit Democrats' Support
Feb 8, 2016 | InsideEPA
By Suzanne Yohannan
Environmentalists are urging senators to oppose legislation aimed at overhauling EPA’s coal ash disposal rule due to concerns it would scrap the “critical and long-awaited safeguards” for ash facilities established in the rule, and the push-back might dampen efforts by the bill's proponents to secure more Democratic support for the measure.
Democrats have generally opposed legislative efforts to force changes to the December 2014 ash regulation, though the White House in July issued a Statement of Administration Policy (SAP) threatening a veto of a House-approved ash bill but suggested changes that could make it acceptable to President Obama. However, the advocates' outright opposition to the bill might discourage Democratic support that is vital to overcome a likely filibuster of the legislation.
A coalition of national and state environmental groups, including the Natural Resources Defense Council, Environmental Integrity Project and Sierra Club, sent a Feb. 3 letter to Senate Environment & Public Works (EPW) Committee Chairman James Inhofe (R-OK) and Ranking Member Barbara Boxer (D-CA) saying they “strongly oppose” S. 2446, also known as the Improving Coal Combustion Residuals Regulation Act.
S. 2446 was introduced Jan. 19 by Sens. John Hoeven (R-ND) and Joe Manchin (D-WV). It would create a state-led ash disposal permit regime with technical requirements broadly based on those EPA set out in its first-time Resource Conservation & Recovery Act (RCRA) ash rule. In the rule, the agency regulated ash as solid waste under RCRA subtitle D rather than the subtitle C hazardous waste designation sought by environmentalists.
The legislation is designed to address concerns from states and the power industry about the rule's current EPA-led enforcement regime being overly burdensome.
But the bill would also revise many provisions in ways environmentalists and other Democrats have charged would weaken protections, such as allowing states to craft alternatives to EPA's groundwater protection mandates.
The Senate bill is similar to a recently revised version of House legislation, H.R. 1734, which cleared the lower chamber July 22 despite Democratic opposition but failed to move in the Senate. Primary sponsor of the House bill Rep. David McKinley (R-WV) had earlier reworked H.R. 1734 to strengthen EPA's power to review and approve state ash regulations in response to opponents' critiques.
The White House's SAP on the House bill said, “Specifically, H.R. 1734 authorizes States to implement permit programs that would not meet a national minimum standard of protection and fails to provide EPA with an opportunity to review and approve State permit programs prior to implementation, departing from the long-standing precedent of previously enacted Federal environmental statutes.”
But it recommended ways that lawmakers could revise the bill and potentially win the administration's support, though the environmentalists are suggesting they will never support the legislation.
'Catastrophic Disasters'
The environmentalists in their letter warn that the legislation “threatens health, safety and the environment while relieving owners of coal-fired power plants of their responsibility to safely dispose of the toxic coal ash they generate,” contending the bill would "remove critical and long-awaited safeguards” created by EPA in the rule.
The groups list numerous ways in which they say the Senate bill weakens protections in the rule, which they point out already was a compromise that significantly addressed concerns from industry, recyclers and states by deeming coal ash non-hazardous waste, allowed for the continued operation of ash ponds, exempted the beneficial use of ash, and set “generous timeframes for compliance and closure.”
But S. 2446 “further guts the new EPA rule of public health protections and places American communities at increased risk of toxic exposure and catastrophic disasters,” the groups say.
While industry groups welcomed the subtitle D rule and said it would be just as strict as subtitle C, they fault various provisions in the rule, most prominently its enforcement regime, and are backing the legislation.
Rather than tasking federal or state regulators with enforcing the subtitle D standards, EPA's rule instead depends on citizen suits against facilities that do not obey its technical requirements. Industry and states have called that arrangement overly burdensome, and instead supported the GOP-backed legislation to create a permit regime where states can seek delegated authority from EPA to craft and enforce standards for disposal sites.
The environmental groups, though, charge S. 2446 would eliminate a number of important measures in the rule, including its requirement to immediately clean up coal ash toxic releases and notify the public, the rule’s nationally applicable standard for drinking water protection and cleanup, and its national protective standards. Removing the national standard would allow states to set different standards for disposal, the letter says.
Further, the bill would void the rule’s requirement to close existing coal ash lagoons sited in unstable areas, dismiss the rule’s environmental and health protections for large coal ash fill projects, lift the rule’s ban against siting coal ash dumps in floodplains, and eliminate protective standards for coal ash waste piles across the nation, they say.
Also, they say the bill would significantly delay deadlines for a number of the rule's provisions, including a requirement to close leaking and unsound impoundments; the application of safety, design and operating standards to new ash lagoons and landfills; the rule’s guarantee of public notification of water contamination and other dangers; and key requirements, such as inspections, control of fugitive dust and groundwater monitoring for new ash lagoons. In addition, the bill would greatly weaken and delay citizens’ enforcement capabilities, they say.
Further, the bill would bar effective federal oversight of state ash programs, prohibit EPA’s enforcement of state program requirements unless a state invites this, and prevent the agency from requiring financial assurance under RCRA to ensure cleanup of spills or contamination.
They also claim that the bill would particularly prove harmful to vulnerable communities as coal ash sites are disproportionately located in communities of color and with low-income neighborhoods, they say.
Rights Hearing
Meanwhile, the energy utility industry clashed with environmental advocates on the bill at a Feb. 5 hearing held by the U.S. Commission on Civil Rights.
The commission is an independent panel created under the Civil Rights Act of 1957 that provides advisory reports to Congress; it is currently studying EPA and its coal ash policy.
At the hearing, Commission Chairman Martin Castro questioned an industry representative on H.R. 1734 and cited the numerous criticisms levied on it by environmental groups. James Roewer, executive director of the Utility Solid Waste Activities Group, who testified to the commission, however, responded that those were earlier criticisms and contended that the revisions made to the bill since then resolve those concerns.
But Lisa Hallowell, an attorney with the Environmental Integrity Project, shot back that an overwhelming number of problems remain with both the House and Senate legislation, reciting the list of grievances environmental groups are pointing to in their Feb. 3 letter on S. 2446. “This bill will do so much more harm than good,” she told the commission, arguing it “cherry picks a couple of requirements” and leaves out a host of other requirements.
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Climate Change May Be Part of SEC Disclosure Review
Feb 9, 2016 | BNA Daily Environment Report
By Andrea Vittorio
The Securities and Exchange Commission said it has no plans to do more on corporate climate reporting specifically, but it could be addressed as part of a broader look at financial reporting.
The SEC issued guidance in 2010 explaining how existing disclosure requirements apply to business risks posed by climate change, including physical and regulatory impacts.
The agency told the Government Accountability Office that it has been monitoring companies' climate disclosures as part of routine reviews, but it hasn't considered any further requirements nor has it held a public roundtable on the subject, as originally intended. Still, an ongoing effort to assess disclosure effectiveness in all areas, not just climate change, may offer an opportunity for new reporting rules, the GAO found in a report released Feb. 8.
The report echoes recent comments from SEC Chair Mary Jo White indicating that the agency is weighing new requirements for public companies to make more frequent disclosures about climate change within its broader review (18 DEN A-16, 1/28/16).
Enforcement Lacking?
Corporate climate disclosures have been criticized for being too brief and largely superficial, and the SEC itself has been criticized for not doing enough to improve them.
Typically, when the agency's reviewers find gaps in company reporting, they send comment letters identifying areas for improvement. In the years right after the guidance was issued, the SEC sent comments on climate change to 23 companies, but the letters trailed off by 2013, according to an analysis by the nonprofit group Ceres (26 DEN A-12, 2/7/14).
Reviewers also haven't reported any climate-related disclosure issues to the SEC's Division of Enforcement.
‘Circumstances Changed.'
Jim Coburn, who directs Ceres' efforts to advocate for better corporate climate disclosures, told Bloomberg BNA that the SEC seemed to be “avoiding the question” of why it hasn't done more on climate change.
SEC staff told the GAO that part of the reason why the agency hasn't gone further is because “circumstances changed” when cap-and-trade legislation faltered in Congress. The agency's guidance was issued around the same time the legislation, which could have triggered new disclosure requirements for companies, was being considered.
The Dodd-Frank Act and the JOBS Act financial reforms also shifted the SEC's priorities to implementing required rulemakings, the GAO report said.
The report was prepared at the request of Rep. Matthew Cartwright (D-Pa.), who joined about 30 members of Congress in an October letter urging the SEC's White to “robustly and effectively enforce” the climate guidance (210 DEN A-3, 10/30/15).
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Report Finds Warming Disclosures Take Back Seat At SEC
Feb 8, 2016 | E&E News PM
By Amanda Reilly
Assessing companies' climate change disclosures has dropped in priority at the Securities and Exchange Commission, according to a report released publicly today by a government watchdog.
The Government Accountability Office found that since the SEC issued a guidance on climate change disclosures in 2010, climate change has taken a back seat to implementing the financial reform act.
Largely because of the financial reform law, the SEC has not held a public roundtable on climate disclosure nor has the agency's investor committee taken up a study of the issue. The commission promised it would do both activities in the 2010 guidance to assess whether investors needed more information on climate-related risks.
GAO found, however, the companies in a variety of industries have disclosed different types of climate risks since the 2010 guidance.
"Some business leaders are increasingly recognizing the current and potential effects on their companies' performance and operations, both positive and negative, that are associated with climate change and with efforts to reduce greenhouse gas emissions," GAO wrote in the January report.
The SEC's 2010 document was meant to guide publicly traded companies on disclosing climate-related risks in annual filings. It identified four broad areas of business risks related to climate: legislation and regulations, international agreements, indirect consequences of regulations, and physical impacts such as water availability.
Democrats from both chambers have recently questioned the commission's enforcement of the guidance and have urged the agency to redouble its efforts on ensuring investors have reliable information on climate risk.
Rep. Matthew Cartwright (D-Pa.) asked GAO to study public companies' climate disclosures and the SEC's enforcement of the guidance. The watchdog conducted its audit from March 2015 to January 2016.
In response to the congressman's request, GAO said it examined the SEC's requirements; interviewed staff and stakeholders; searched the SEC's filing system for climate-related disclosures; reviewed nongovernmental organization and foreign government information, as well as company websites; and held a forum to obtain companies' views on climate change.
According to the findings, the SEC considers climate during its routine monitoring of company disclosures. But the agency's plans for following up on the 2010 guidance "evolved" due to changing circumstances.
For one, Congress failed to enact a cap-and-trade law that may have had a significant effect on how companies approached climate change.
The priorities of the commission itself have also changed since 2010, GAO found. The current chairwoman of the SEC, Mary Jo White, has made implementing the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act a top priority; since 2010, the SEC has finalized 63 rules related to the financial law.
And the SEC disbanded the investor advisory committee that had been tasked to study climate change disclosures to make room for a new panel focused on the Dodd-Frank Act.
"The issue of climate change disclosure has not risen to the level of importance in the committee that other issues have," the GAO report says, "such as the requirements of the Dodd-Frank Act."
Despite the calls by stakeholders for the agency to take a more active interest, "the agency has no plans to specifically determine if additional actions related to disclosure of climate-related risks are necessary or appropriate in the public interest or for the protection of investors," GAO found.
SEC staff, however, indicated that the agency could address climate disclosure as part of broader initiatives. The SEC's investor advocate is considering reviewing climate but currently has no formal plans to undertake such a review.
GAO said that its own search of the keywords "climate change" and "supply chain" yielded 973 company filings in the auto, electric services, insurance, manufacturing, mining, oil and gas, and agriculture sectors. The watchdog identified a subset of 84 filings to look at the types of information companies have disclosed on climate.
According to the report, GAO found examples of all of the types of disclosures required by the SEC guidance. It also found that some companies disclose general physical risks without specifically mentioning "climate change."
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Obama Proposing Clean-Water Cuts Amid Flint Outcry
Feb 8, 2016 | PoliticoPro
By Annie Snider
The Obama administration is expected to propose a $250 million cut to its primary funding source for water and sewer systems as part of its budget proposal Tuesday — a prospect that is bringing bipartisan criticism amid the furor over lead contamination in Flint, Mich.
The budget calls for adding $158 million to an Environmental Protection Agency program that offers grants and low-interest loans to help states and cities improve their drinking-water systems, according to a source familiar with the proposal. But it would pay for that by making even larger cuts to an EPA clean water program that helps reduce pollution at the source, a trade-off that lawmakers on both sides call foolish.
"We cannot take money away from the fund that cleans up the polluted Flint River — the source of Flint’s drinking water — and put it into fixing Flint’s pipes," said Sen. Ben Cardin (D-Md.), who called himself "grossly disappointed" by the proposal. Cardin noted that the administration's expected request for drinking water spending is lower than what President Barack Obama sought last year, even if it's more than what Congress wound up providing.
Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, accused Obama of making clean drinking water a lesser priority than climate change, a frequent complaint of Republican lawmakers about Obama's EPA budget proposals.
“It took the media bringing to light the crisis in Flint, Mich., for the president to become concerned with the EPA’s Drinking Water State Revolving Fund," Inhofe said in a statement, referring to the program that Obama is proposing to increase. "Every year previous, the president’s budget proposal has sought to short change this fund while increasing funding for subsidies for his corporate friends that share his global warming views."
Both water programs "are fiscally responsible," Inhofe said. "The federal government can responsibly help Flint, and help prevent another Flint from happening by supporting infrastructure investment."
But environmentalists said GOP lawmakers have been standing in the way of protecting clean water.
“For years, they have been slashing EPA's overall funding, and trying to block water quality protections proposed by the Administration,” Mae Wu, an attorney for the Natural Resources Defense Council, wrote in a blog post Monday. “The endless attacks have made it harder for the agency to do its job, chilled efforts of agency staff, and contributed to the timidity of the officials in responding to the growing Flint crisis.”
Wu also criticized the administration’s proposed cut to the clean water fund, however. “Both of the [programs] need more funding,” she wrote.
The EPA has not responded to requests for comment about the budget request.
Obama's budget request is landing as Flint's water crisis is becoming an ever more prominent cause for Democrats like Hillary Clinton, who took a detour from her New Hampshire presidential campaign on Sunday to visit an African-American church in the beleaguered city and condemn the lead pollution as "immoral." The contamination, which arose after a state-imposed emergency manager signed off on switching the city's water source to save money, has spurred Democratic attacks on Republican Gov. Rick Snyder and, by extension, the GOP's entire approach to governing.
But the EPA budget is also part of an annual tug of war between Obama and congressional Republicans, who have repeatedly attacked the administration for proposing cuts to the agency's popular water infrastructure program while boosting spending on causes like air pollution and climate change. Because Congress typically restores much of the water money, proposing those cuts is seen as a politically expedient way for the administration to look like it's holding the line on spending when it rolls out Obama's yearly budget proposals.
But this year, Flint has dramatically raised the stakes on the politics of drinking water. In addition to Clinton's visit to Flint on Sunday, she and Democratic rival Bernie Sanders agreed last week to hold a presidential debate in the city March 6.
The administration's proposed $158 million increase for EPA's drinking water fund would bring it to a total of $1.02 billion for the fiscal year that starts Oct. 1, the source said.
But that extra money comes at the expense of the fund’s sister, the Clean Water State Revolving Fund, which helps state and local authorities upgrade wastewater treatment plants whose pollution damages the rivers and lakes that serve as sources of drinking water. All told, the two programs would get $250 million less than Congress gave them last year, down to $2 billion, the source said.
The White House’s budget request will seek a total of $8.27 billion for the EPA. That’s down 3.8 percent from what the administration requested for the agency last year, but it's more than the $8.1 billion that Congress actually provided.
The administration will also propose $20 million in first-time funding for a water infrastructure loan program that Congress authorized in 2014, the source said. The program, known as the Water Infrastructure Finance and Innovation Act, has yet to make a loan, but senators have eyed it as a possible source of money during their negotiations over a federal aid package to Flint and other cities.
Under WIFIA, Treasury can make low-interest loans for 10 times the amount of money that Congress appropriates — an appealing characteristic for budget-conscious Republicans. The loans must be repaid, though, which would make it a challenge for impoverished cities like Flint.
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Flint Talks Continue As Clock Ticks On Senate Bill
Feb 8, 2016 | E&E News PM
By Geof Koss
The leaders of the Senate Energy and Natural Resources Committee are working to keep their bipartisan energy package alive, while discussions continue on possible aid to help the residents of Flint, Mich., cope with their lead-contaminated drinking water.
In a joint statement this afternoon, Energy Chairwoman Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.) said they worked over the weekend to "clear a path" for the bill, which became bogged down last week over Democrats' demands that aid for Flint be included.
"We have spoken with colleagues on both sides of the aisle to remind them of the many good provisions in our bill," the pair said. "And we have gauged what might be possible to help the people of Flint, Michigan and other Americans impacted by contaminated drinking water."
The statement comes as the clock is ticking on the energy debate, which has stretched on for over a week and appears to be running out of time. The Senate on Wednesday morning is slated to move to a bill imposing sanctions on North Korea.
Murkowski and Cantwell acknowledged the dilemma.
"With our time on the Senate floor running short, we are working toward an agreement to allow our energy bill to move forward," they said. "At the same time, we are working to help advance a measure to address the Flint water crisis and hope that it will be brought up as soon as possible."
Senate aides said discussions are still focused on providing help for Flint within the energy bill, although other legislative avenues are emerging, as well.
The House on Wednesday will vote on a bill (H.R. 4470) that would require U.S. EPA and states to notify residents when lead levels in drinking water are exceeded, and Minority Leader Nancy Pelosi (D-Calif.) today called for funds for Flint to be included in an expected emergency funding request from the administration to prepare for the Zika virus (see related story).
Sen. Shelley Moore Capito (R-W.Va.), a member of the Energy and Natural Resources Committee and the Environment and Public Works Committee, said today that she hadn't seen the Murkowski-Cantwell statement but said detangling Flint from the energy debate "may be the best direction to go" if possible.
"I think the energy bill has a lot of important issues, certainly for my state and many others around country, and I'd hate to see progress halted on it," she told E&ENews PM.
In floor remarks, Senate Majority Leader Mitch McConnell (R-Ky.) referenced Democrats' objection last week for making a number of amendments pending to the bill. That objection was followed by a Democratic filibuster on two procedural votes on the energy package, effectively bringing the debate to a halt (Greenwire, Feb. 4).
"I'm asking colleagues to take 'yes' for an answer and allow the open amendment process to continue -- so we can pass it, which is so important to helping our country prepare for the energy demands of today and the energy opportunities of tomorrow," McConnell said.
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