Preview Newsletter
ACC PM 2/22/16
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(ACC Blog) Fixing EPA’s Chemical Assessment Program – Latest Reviews Show IRIS is Still a Work in Progress
Feb 22, 2016 | American Chemistry Matters
By Nancy Beck, Ph.D.
It’s hard to believe but this year marks the fifth anniversary of the National Academy of Sciences’ (NAS) 2011 report on the Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) program. The report identified systemic problems and offered sweeping recommendations to overhaul the program. -
(ACC Mentioned) California Agency Adopts DINP No Significant Risk Level
Feb 22, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has adopted a no significant risk level (NSRL) for diisononyl phthalate (DINP) of 146 micrograms per day. -
(ACC Mentioned) Key Evidence in EU's Risk Assessment of Glyphosate Must Not Remain 'Trade Secret'
Feb 22, 2016 | The Ecologist
By Corporate Europe Observatory
The chemical industry and the European Food Safety Authority are refusing to disclose key scientific evidence about glyphosate's risks, citing 'trade secrets' protection, writes Corporate Europe Observatory. They must be compelled to publish the 'mysterious three' scientific studies EFSA used to assess glyphosate as 'unlikely' to cause cancer to humans - contradicting the IARC's view. -
California Seeks Toxicity Data on PFOA, PFOS, Nickel, N-Hexane
Feb 22, 2016 | Chemical Watch
California’s Office of Environmental Health Hazard Assessment (Oehha) has requested information on the reproductive toxicity hazards presented by four substances. This is in order to prepare hazard identification materials. These will be used to determine whether the substances should be listed under Proposition 65. -
Canada to Explore Harmonisation with US EPA’s CDR Rule
Feb 22, 2016 | Chemical Watch
As Canada prepares for the third phase of its Domestic Substances List (DSL) update, “opportunities for harmonisation” with the US EPA’s Chemical Data Reporting (CDR) rules will continue to be explored, according to Environment Canada. -
Congress Digs in For a Committee-Heavy Week
Feb 22, 2016 | Politico Pro - Morning Energy
By Eric Wolff
Members of Congress return this week from their warm fires/tropical beaches ready to don helmets, hoist pick axes, and descend once again to the legislative mines. With the energy bill on hold and the new TSCA bill moving slowly, energy work will be at the committee level — but there will be no shortage of of it! -
Massachusetts Revisits TCE Sites To Protect Against Birth Defects Risk
Feb 22, 2016 | Inside EPA
By Dave Reynolds
Massachusetts is planning to revisit contaminated sites that were once closed from further cleanup to assess whether trichloroethylene (TCE) poses an "imminent hazard," a rare move that was triggered by EPA's finding that the contaminant poses a risk of cardiac birth defects, and which may spur lawsuits over new cleanup costs. -
What Chemists Do: US Chemical Safety Board Investigator
Feb 22, 2016 | Chem Info
By American Chemical Society
Mary Beth Mulcahy, Ph.D, is an investigator at the U.S. Chemical Safety Board. -
The Aliso Canyon Gas Leak Has Been Plugged; Now What?
Feb 22, 2016 | LA Times
By Ivan Penn
The well failure at Southern California Gas Co.'s huge Aliso Canyon storage facility is evoking the worst of energy fears: snuffed-out pilot lights, rolling blackouts and a system too unreliable for the modern age. -
Tougher Tank Cars Too Slow in Coming: NTSB's Sumwalt
Feb 22, 2016 | Occupational Health and Safety
Two important rail safety changes for which the National Transportation Safety Board has been waiting are not yet realized, and a Feb. 18 post on NTSB's Safety Compass blog by board member Robert L. Sumwalt calls for them to be achieved. The two are changing over U.S. railroads' DOT-111 tanker cars that carry crude oil and ethanol so they meet the more stringent DOT-117 standard and implementing positive train control. -
Challengers Question EPA's Authority, Rulemaking Process in Briefs
Feb 22, 2016 | E&E Energywire
By Ellen M. Gilmer
Let the briefing wars begin. Challengers to the Obama administration's landmark Clean Power Plan filed opening briefs Friday in the massive tangle of litigation that has ensnared the rule since its release last year. Their arguments are familiar: The climate rule violates the Clean Air Act and treads on state regulators' turf. -
After the Stay: Where All 50 States Stand
Feb 22, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
Eighteen states challenging the legality of U.S. EPA's Clean Power Plan have halted planning discussions following the Supreme Court decision to stay the regulation, according to a reviewby E&E staff. -
New La. Regime Eyes Outreach on Carbon Plan Amid Stay
Feb 22, 2016 | E&E Energywire
By Edward Klump
Last November's election of a new Louisiana governor has altered the state's discussion around U.S. EPA's Clean Power Plan, and a key official says he will explore carbon-cutting options despite a court stay. -
NARUC's Kavulla Says States Should Avoid Wasting Time on Details of Rule Following Stay
Feb 22, 2016 | E&E TV
Are regulators wasting energy by continuing to focus on the nuances of U.S. EPA's Clean Power Plan, following the Supreme Court's stay of the rule? During today's OnPoint, Travis Kavulla, president of the National Association of Regulatory Utility Commissioners and a member of the Montana Public Service Commission, explains why he believes regulators should shift their focus to broader conversations on carbon allowance trading and carbon price risk modeling. He also discusses the existing challenges to giving utilities market certainty. This interview was recorded at the NARUC winter meetings in Washington, D.C. -
Supreme Court to Hear Major Grid Case Without Scalia
Feb 22, 2016 | E&E Greenwire
By Robin Bravender
A consequential energy case is on the Supreme Court's docket this week as the justices hear their first arguments since the death of Justice Antonin Scalia. -
Proposed Rules Aim to Control Brine and Oil Pipeline Spills
Feb 22, 2016 | E&E Energywire
By Mike Lee
The owners of more than 12,000 miles of oil and gas pipelines in North Dakota would have to register with the state under a regulatory proposal aimed at stopping a high-profile string of leaks and spills. -
Courts' Stays Of EPA Rules Spur Debate On Agency Agenda Through 2017
Feb 22, 2016 | Inside EPA
By Bridget DiCosmo
Federal courts' stays of major EPA rules -- including an appellate stay of the Clean Water Act (CWA) jurisdiction rule and the Supreme Court stay blocking the agency's climate rule for existing power plants -- are spurring debate over how the stays might impact EPA's success pursuing its agenda through the rest of the Obama administration. -
Advocates Say EPA Nutrients Response Falls Short Of Appellate Mandate
Feb 22, 2016 | Inside EPA
By David LaRoss
Environmentalists are asking a federal district court to force EPA to craft a substantive response to their petition for the agency to impose strict federal Clean Water Act (CWA) nutrient standards on Mississippi River Basin states, arguing that its reasons for refusing are not "grounded in the statute" as an appeals court has required. -
Researchers Found Portland, Ore., Hot Spots by Accident
Feb 22, 2016 | E&E Greenwire
Curious about whether trees soak up air pollution, two Forest Service researchers set out in 2012 to monitor an entire city's pollution levels, and while they collected data seeking to answer their original question, the two also stumbled upon something totally unrelated. -
N.C.'s Blueprint for Clean Energy in the Southeast
Feb 22, 2016 | E&E Energywire
By Kristi E. Swartz
Cost will largely determine the makeup of the Southeast's energy landscape, but industry leaders gathered at a clean-tech conference here last week said policy and consumer demand will play large roles, as well.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
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Energy and Environment News
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Feb 22, 2016 | American Chemistry Matters
By Nancy Beck, Ph.D.
It’s hard to believe but this year marks the fifth anniversary of the National Academy of Sciences’ (NAS) 2011 report on the Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) program. The report identified systemic problems and offered sweeping recommendations to overhaul the program. So what has happened in the five years since the NAS report was issued? Some incremental changes have been made by EPA, but the critical improvements recommended by the NAS have not yet materialized and thus have not found their way into the latest IRIS assessments.
EPA’s Chemical Assessment Advisory Committee (CAAC) was formed following the NAS report to provide expert advice to the IRIS program on their assessments. ACC has long supported the creation of an independent panel to help EPA with its work. After its formation, the NAS recognized the CAAC’s value as a resource EPA can tap to help resolve the problems with IRIS and to help develop standardized methods. More recently, the lack of progress on the IRIS program has not escaped the attention of the CAAC.
In reviewing recent IRIS assessments, the CAAC notes that some improvements have been made. However, the CAAC also notes that there are important areas where EPA is still falling short when it comes to handling the scientific evidence underpinning its determinations. Here are two important areas raised by the CAAC that are worth highlighting:
Selecting Studies
In 2011, the NAS recommended the establishment of standard methods for evidence identification and clear guidelines for study selection. The NAS specifically recommended that the exclusion and inclusion of criteria by which studies are selected be clearly articulated in all assessments. After reviewing EPA’s most recent draft assessments, the CAAC found that the Agency is still missing the mark when it comes to identifying relevant studies.
This shortfall is illustrated in the CAAC’s final report on the IRIS draft ammonia assessment, which stated “EPA should clarify the criteria by which it determines the significance of specific limitations in studies. A clarification (or citations to relevant guidelines) as to how EPA judges a potential limitation to be a major one or not should be added.”
Regarding the draft assessment of trimethylbenzenes (TMBs), the Committee found “… that while the search strategy and rationale to select studies was clearly articulated, the exclusion criteria and implementation of those criteria was not as transparent.” The report went on to say that, “[w]hile it was clear which papers were used in the draft assessment, there were no means of determining which papers were excluded from the assessment. Thus the review does not provide sufficient documentation to determine if important papers may have been overlooked or considered and then omitted from consideration based on EPA’s criteria.”
Assessing Study Quality
The NAS also recommended that EPA develop a formal process for evaluating studies and integrating them into an assessment. The CAAC has concluded that EPA has yet to adopt a consistent systematic review process when conducting chemical assessments.
For example, in the TMB assessment the CAAC found the “… process of systematic review still needs development. Documentation of the process of identifying literature has progressed, but further development is needed in establishing standard practices for abstracting relevant data, for evaluating study quality, strengths and shortcomings, and for integration of evidence across studies.”
ACC and other stakeholders have provided similar feedback to EPA on these issues in the past, and we are encouraged to see the CAAC echo the same concerns. It is unfortunate that after five years, IRIS is still producing deficient assessments that do not reflect the 2011 NAS recommendations.
One way EPA could accelerate its efforts to improve the IRIS program would be to develop its long-awaited draft handbook for conducting assessments. We strongly urge EPA to facilitate a broad stakeholder discussion and seek public comment on this document before sending it to the CAAC for review. The handbook, when finalized, should provide a more methodical and transparent approach to evaluating chemicals.
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(ACC Mentioned) California Agency Adopts DINP No Significant Risk Level
Feb 22, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has adopted a no significant risk level (NSRL) for diisononyl phthalate (DINP) of 146 micrograms per day.
DINP was added to the state’s Proposition 65 list of substances known to the state to cause cancer in December 2013. The NSRL represents the safe harbour level below which warning disclosure is not required.
The American Chemistry Council’s (ACC) High Phthalates Panel told Chemical Watch that the adopted NSRL is “below levels that science shows are safe." It has cautioned that Oehha’s decision will “[confuse] the public about hazards and potential risks of DINP from everyday products.”
During a consultation that ran from 2 January to 11 March 2015, the trade group had said a NSRL of 2,664µg/day would be more representative of the current science.
The ACC has long protested DINP’s designation as a carcinogen under Prop 65. It says that its inclusion on the list is “unwarranted and defies the state of science”.
It filed suit against Oehha in 2014 to reverse the listing, but the court denied the petition. The trade groupappealed last summer, and litigation is ongoing.
According to the ACC, the new NSRL “is even further proof that Oehha is misusing science when making decisions that affect the public’s understanding of risks from everyday products, as well as ignoring how those decisions negatively affect the marketplace”.
“DINP has been reviewed by numerous international scientific panels over decades and the conclusions are essentially the same each time: DINP as currently used in commercial and consumer products does not pose a risk to human health at typical exposure levels”, it adds.
Several of the comments received during the NSRL development process questioned the relevance of rodent studies for predictiveness of effect in humans.
Commenting organisations included:Consumer Electronics Association (CEA);Consumer Specialty Products Association (CSPA);European Council for Plasticisers (ECPI); andExxonMobil Chemical Company.
But in its final statement of reason, Oehha defended the relevance of the findings. It said that the NSRL “is based upon the results of the most sensitive scientific studies deemed to be of sufficient quality”.
Since its listing under Prop 65 DINP has been the subject of more than 250 60-day notices filed with the Office of the Attorney General. These serve to notify businesses of civil lawsuits being brought by private enforcers over alleged violations of Prop 65.
DINP litigation has resulted in more than $200,000 in civil penalties and payments made in lieu of penalties, according to the OAG website.
According to Oehha, the NSRL may reduce litigation costs by providing a safe harbour value that can assist businesses in determining if they are complying with Prop 65 requirements.
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(ACC Mentioned) Key Evidence in EU's Risk Assessment of Glyphosate Must Not Remain 'Trade Secret'
Feb 22, 2016 | The Ecologist
By Corporate Europe Observatory
The chemical industry and the European Food Safety Authority are refusing to disclose key scientific evidence about glyphosate's risks, citing 'trade secrets' protection, writes Corporate Europe Observatory. They must be compelled to publish the 'mysterious three' scientific studies EFSA used to assess glyphosate as 'unlikely' to cause cancer to humans - contradicting the IARC's view.
In March 2015 the World Health Organisation's International Agency for Research against Cancer (IARC) foundthe world's most commonly used herbicide, glyphosate,"probably carcinogenic to humans".
Three months later the EU's official risk assessment of the pesticide, conducted by the European Food Safety Authority (EFSA) and Germany's Federal Risk Assessment Institute (BfR), came to the opposite conclusion that glyphosate was "unlikely" to cause cancer to humans.
A war of words started with, notably, EFSA's director calling scientists critical of its work (including some involved in IARC's review)"facebook scientists" for a petition they had sent to the European Commission.
And it continues with, lately, directors of the two organisations engaging in a public exchange of letters, copied to more or less everyone politically involved on this file, where both defended the integrity of their respective institution's work.
Eventually, a meeting between the two, meant to take place this week, was cancelled, as EFSA did not agree to the IARC's director's requests to change a number of its statements about IARC's work on its website.
Under the giant shadow of Monsanto
One reason behind this almighty mess is the extreme public sensitivity of the topic: behind glyphosate lurks the shadow of US multinational Monsanto, currently one of the most hated companies on the planet, which built its economic development around this wide-spectrum herbicide and GM crops engineered to tolerate it. Monsanto coordinated industry producers into a Glyphosate Task Force (GTF) to facilitate the pesticide's review approval.
But the story has more to it than a political tussle. While conflicts are common in science too, resolving them relies on scientists reviewing and debating the evidence. The problem is this step cannot be taken because parts of this evidence are missing.
Three industry-sponsored carcinogenicity studies on mice, in particular, are not accessible to IARC while EFSA insists they played an important role in informing its decision. This situation is unfortunately typical of debates on pesticides regulation. This is why for years Corporate Europe Observatory and others have been asking EFSA and the European Commission that, just as with clinical trials for medicines, the data supporting EFSA's scientific opinions should systematically be made public to enable free scientific scrutiny.
To find out more about the basis of the glyphosate decision we filed an access to documents request to EFSA in December 2015 to demand the disclosure of these three mouse studies. EFSA refused, and justified this on the basis that the owners of the studies, all industry producers of glyphosate, said disclosing this evidence would undermine trade secrets and intellectual property rights. Corporate Europe Observatory is appealing that decision by EFSA.
Meanwhile, the political process goes on, with the European Commission expected (according to EU sources) to propose member states start discussing a new EU-wide renewal of glyphosate's market authorisation next 7th or 8th March.
Adding to the tension, France's food safety agency ANSES published on 12 February anopinion contradicting EFSA's (even though ANSES officials had contributed to it) by saying that glyphosate could perhaps, after all, be classified as a substance suspected of being carcinogenic to humans - a category which would not imply an EU ban - and that more research should be done, in particular by the European Chemicals Agency (ECHA) in Helsinki.
The 'mysterious three'
The starkest difference between the EU's regulatory agencies and the independent scientists who wrote IARC's assessment perhaps lies in their respective interpretation of the animal evidence.
The conflict is particularly intense over the EU's use of five industry-sponsored carcinogenicity studies in mice reviewed by BfR and EFSA. Two of these studies, from 1983 ('A chronic feeding study of glyphosate (Roundup technical) in mice 77-2061! (BDN-77-420)') and 1993 ('Glyphosate: 104-week dietary carcinogenicity study in mice, IRI 438618'), were already included in industry's first EU level request for a market authorisation for glyphosate.
But industry sent three new unpublished studies for the EU market authorisation renewal - the 'mysterious three', as scientific literature reviews specialist Paul Whaley dubbedthem):
'Carcinogenicity Study with Glyphosate Technical in Swiss Albino Mice' (2001), following OECD Guideline 451 & GLP - study owned by the Israeli pesticides company ADAMA Agan Ltd and was never published;
'Glyphosate technical: Dietary Carcinogenicity Study in the Mouse' (2009), following OECD Guideline 451 & GLP - study owned by the Australian pesticides company Nufarm and was never published;
'HR-001: 18-Month Oral Oncogenicity Study in Mice' (1997), following following OECD Guideline 451 & GLP - study owned by the Japanese pesticides company Arysta LifeSciences Corporation and was never published.
One study, two very different interpretations
The names of the authors of all five studies are redacted in EFSA's publications. In a Twitter exchange on the matter, Monsanto Europe explained this was for security reasons:"If you get scientists' names what's stopping people going after them/families?"
The company later added to its first reply saying: "It's a sad fact that some activists target Monsanto employees for harassment." But this seems simply irrelevant in this case given that not a single Monsanto employee seems to have been involved in the conduct of these studies.
Despite the first two studies, from 1983 and 1993, also not having been published, IARC could access them. Indeed it interpreted the 1983 study as showing "a significant increase in the incidence of rare tumours, with a dose-related trend, which could be attributed to glyphosate."
That makes a stark contrast with EFSA and BfR's review of the same study. IARC's interpretation of the 1993 study is on the other hand consistent with EFSA and BfR's. But it could not evaluate the three more recent studies, even though it was able to access summaries which its scientists commented showed incidence of various tumours.
'Key' and 'pivotal' evidence
The Mysterious Three are an essential element of the conflict. This is particularly so because EFSA heavily referred to them to explain its assessment, with José Tarazona, the Head of EFSA's Pesticides Unit in charge of the assessment, calling them "key" and"pivotal".
Similar comments can be found from various member states' experts, with Belgium insisting that "it was unfortunate that IARC did not take into account 3 guideline studies in both mice and rats, since this could have put the overall conclusions in another perspective." This very unfair sentiment - IARC could not access these studies - was echoed by Ireland: "IARC's failure to evaluate the 3 other studies is not helpful."
Since EFSA's publication, the agency has been arguing that there is enough detailed information in its documentation to perform a good analysis, but IARC scientists respond that the descriptions and summaries published miss key elements and cannot replace original data.
Among these missing elements, IARC said, are "the historical control data from the reporting laboratory for all tumours with statistically significant positive increases, by either test recommended by OECD; another is the survival of the animals." More generally, IARC pointed to its list of attention points for all studies it assesses.
Secret perfection or convenient argument?
So what is in these Mysterious Three? How can only three studies explain such a striking contrast? Would they be so strong as to convince IARC to reverse its stance? Would they on the contrary confirm it?
Or, given the strong political interest in this file and the fact that the EU's Pesticides Regulation would force glyphosate out of the market were its cancer-causing properties confirmed, isn't referring to these secret studies a convenient argument for all those willing to keep glyphosate on the EU market anyway?
In its response to Corporate Europe Observatory on 5th February 2015 explaining why it would not release the information, EFSA said that the studies' owners (who, by law, must be consulted) refused any disclosure because they considered their studies to contain trade secrets and intellectual property which if released would harm their industrial and commercial interests as well as their "competitive position".
EFSA agreed with this analysis and explained that, according to the exception foreseen in the EU's Public Access to Documents Regulation 1049/2001 as well as in the EU's Pesticides Regulation 1107/2009, it was entitled to not disclose the documents.
Abusive use of the trade secrets protection argument
However, both regulations only protect commercial interests and, in the case of the Pesticides Regulation, a limited list of elements within the studies, not the whole document - it is difficult to believe that everything in a scientific study would be a trade secret.
Moreover, the EU's Pesticides Regulation stipulates that any data owner refusing disclosure of its material must provide a verifiable proof that disclosure would harm him, which was apparently not done.
Finally, glyphosate has been off-patent for 15 years and most pesticide companies now producing glyphosate belong to the Monsanto-led Glyphosate Task Force, the group that bundled all these studies together and sent them to the BfR and EFSA. How would disclosing these studies harm any of these companies' competitive position if they were already shared among the main competitors?
As a consequence, CEO is appealing this decision, hoping that EFSA will use the opportunity of this major file and controversy to demonstrate its good faith in actually acting upon its declared intentions on data transparency and providing a level of openness that enables this conflict to evolve into a more productive, evidence-based discussion.
David vs. Goliath legal action in play since 2011
The data used by the European Commission to grant a market authorisation to glyphosate has been a much-debated issue for a long time.
In October 2011 Greenpeace Netherlands and Pesticides Action Network Europe took action against the European Commission and at the European Court of Justice to compel it to disclose the glyphosate industry's secret dossier. In October 2013 the Court's General Court ordered the European Commission to disclose large sections of the documents.
But the European Commission lodged an appeal which is ongoing. From March 2015 onwards, the European Commission has received support from numerous industry groups in this appeal:
the European Crop Protection Association ('ECPA'), which argues that "an adequate protection of confidential business information ('CBI') is essential in order to preserve and stimulate innovation and thus competitiveness and growth in the EU crop protection sector."
CropLife International, the international lobby group of the pesticides industry, whose members "account for approximately 75% of sales across the crop protection industry worldwide" and whose interest consists in "promoting the interests of its members as regards, inter alia, the protection of intellectual property and, in particular, confidential business information."
A delegation of US industry, composed of CropLife America, Inc., the National Association of Manufacturers of the United States of America and the American Chemistry Council, Inc., who argue that "the present appeal, since it concerns a conflict between the right of access to documents concerning the environment and the protection of confidential business information that manufacturers of chemical products are required to submit to the competent authority, raises a question of principle which is liable to affect the interests of [their] members."
the European Chemical Industry Council, the EU's chemicals industry, arguing that "it has for many years underlined the importance of an adequate protection of confidential business information ('CBI') for the competitiveness of the EU chemicals industry."
the European Crop Care Association, an association representing small and medium-sized enterprises operating in the generic pesticides industry, who says that "the Court's judgment in the present appeal will have a significant impact on the small and medium-sized enterprises which it represents, which rely heavily on industrial secrets to protect their intellectual property and innovation."
MEPs - reject the 'Trade Secrets Directive'!
As an important aside, CEO also calls MEPs to reject the so-called Trade Secrets Directive, whose final vote in the European Parliament is announced for next April 12.
As a matter of fact, one of the numerous problems with this text is that it would give companies additional arguments to fight public interest disclosures in court by threatening public authorities with massive financial penalties would they dare to disclose information they consider a trade secret.
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California Seeks Toxicity Data on PFOA, PFOS, Nickel, N-Hexane
Feb 22, 2016 | Chemical Watch
California’s Office of Environmental Health Hazard Assessment (Oehha) has requested information on the reproductive toxicity hazards presented by four substances. This is in order to prepare hazard identification materials. These will be used to determine whether the substances should be listed under Proposition 65.
The substances are:
n-hexane;
perfluorooctanoic acid (PFOA) and its salts;
perfluorooctane sulfonate (PFOS) and its salts; and
nickel and nickel compounds.
The announcement follows a November meeting of the state’s Developmental and Reproductive Toxicant Identification Committee (Dartic). This established “high” prioritisation levels for PFOA and PFOS and a “medium/low” priority for nickel.
The body – which advises the Oehha on determining the reproductive toxicity of substances – also suggested that n-hexane be considered as a candidate for future listing.
The preparation of hazard identification materials comes despite protestations from industry over the prioritisation of nickel, PFOA and PFOS.
In comments submitted to Dartic last autumn, and endorsed by a coalition of 15 trade groups, the Nickel Producers Environmental Research Association (NiPERA) said that current epidemiological data does not support metallic nickel’s prioritisation. And, it added, consumer exposure via inhalation or oral exposure is “negligible or non-existent”.
3M Company, a perfluorooctanyl chemistries manufacturer, said that PFOA and PFOS are being voluntarily phased out and therefore do “not warrant the extensive resources necessary for the preparation of hazard identification materials”.
Pentachlorophenol (PCP) and tetrachloroethylene (TCE) – designated “medium/high” priorities by Dartic – were not included in the Oehha’s information request.
The public may submit information relevant to assessing the developmental and male and female reproductive toxicity of the four substances to the Oehha by 4 April.
The hazard identification materials prepared by the agency will be presented to the Dartic at a future meeting for possible listing under Prop 65.
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Canada to Explore Harmonisation with US EPA’s CDR Rule
Feb 22, 2016 | Chemical Watch
As Canada prepares for the third phase of its Domestic Substances List (DSL) update, “opportunities for harmonisation” with the US EPA’s Chemical Data Reporting (CDR) rules will continue to be explored, according to Environment Canada.
Canada is proposing to adopt a “cyclical” approach – like that in the US – to the DSL update. This would start with the third phase of the update, due to be launched in late 2016 or early 2017.
The inventory is expected to be updated every four years and “it is anticipated that the information requested would be similar to what is requested in the CDR and in past DSL initiatives,” a spokeswoman for Environment and Climate Change Canada said.
On efforts to harmonise activities with the US, she said because the second phase of the CDR reporting period is June to September this year, “there is will a slight stagger for reporting this information between the two jurisdictions.”
As part of the review of the significant new activity (Snac) decisions made since the publication of the first one in 2001, those for two azo-benzidine based dyes/pigments and nine nanomaterials have been rescinded.
The first larger review group is anticipated for publication in mid-2016 for public comments. This will include amendments for Snacs related to consumer products.
On progress made in implementing the second phase of the Chemical Management Plan (CMP), final risk assessment decisions had been published as of last December for 250 of the 1,525 substances to be addressed under the groupings initiative and rapid screening approach, she said. Draft risk assessments have been published for another 1,225 substances.
Final risk assessments for the remaining 900 substances subject to rapid screening, as well as draft assessments for the remaining 50 substances under the groupings initiative, are expected early this year.
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Congress Digs in For a Committee-Heavy Week
Feb 22, 2016 | Politico Pro - Morning Energy
By Eric Wolff
HEIGH HO, HEIGH HO, BACK TO WORK CONGRESS GOES: Members of Congress return this week from their warm fires/tropical beaches ready to don helmets, hoist pick axes, and descend once again to the legislative mines. With the energy bill on hold and the new TSCA bill moving slowly, energy work will be at the committee level — but there will be no shortage of of it!
Both pipelines and materials hazardous, how goes the safety? The Pipelines and Hazardous Materials Safety Administration is up for reauthorization, and on Thursday Administrator Marie Therese Dominguez will have to tell Congress what her agency has been up to since it was reauthorized in 2011. The subcommittee is already somewhat concerned, as it points out in hearing materials, that the previous reauthorization "included 42 congressional mandates for PHMSA, the most consequential of which PHMSA has yet to implement." The intervening years haven't been great for pipelines, encompassing pipeline explosions, oil leaks, and a massive, months long gas leak at a Southern California storage facility.
RFS gets a look-see: On Wednesday the Senate Environment an Public Works Committee will hold an oversight hearing on the the Renewable Fuel Standard, with testimony from Janet McCabe, acting assistant administrator for EPA's Office of Air, and Howard Gruenspecht, deputy administrator energy for the Information Administration. Outside groups are already getting into the act, like the American Council for Capital Formation running a six-figure video and digital ad campaign in the D.C. area arguing that corn ethanol has lost its clout.
If it's Wednesday, it's water day: Congress will wade into water issues on Wednesday, diving into California's water supplies at a subcommittee of the House Natural Resources Committee. The Water, Power, and Oceans Subcommittee features eight California members, including three Republicans and five Democrats. As Pro's know, Congress has been trying to work out a deal to resolve some of California's water issues, with California Republicans, led by Republican Majority Leader Kevin McCarthy, putting pressure on Sen. Dianne Feinstein to move legislation through her chamber. Over in Rayburn, Jo-Ellen Darcy, who runs the Army Corps of Engineers, will testify before a subpanel for the Transportation and Infrastructure Committee on water resources development.
Put on your green eye shades, it's budget time: The Senate Energy and Natural Resources Committee has summoned Interior Secretary Sally Jewell to its chambers for a hearing on Tuesday to discuss Interior's budget request. Senators will have no shortage of questions, no doubt beginning with the president's notion of imposing a $10.25 per barrel crude oil tax. Meanwhile Forest Service chief Tom Tidwell will defend his budget on Wednesday before a subcommittee of the House Appropriations Committee, and the Corps' Darcy will give budget testimony to a separate Appropriations subcommittee on Friday.
... and the rest: Three more energy-related hearings for your radar: Wednesday morning, a subpanel of the House Energy and Commerce Committee will discuss the Department of Energy's mission; that afternoon, the House Natural Resources Committee will discuss President Barack Obama's environmental rules, and a subcommittee of the Judiciary Committee will tackles administrative rules in general.
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Massachusetts Revisits TCE Sites To Protect Against Birth Defects Risk
Feb 22, 2016 | Inside EPA
By Dave Reynolds
Massachusetts is planning to revisit contaminated sites that were once closed from further cleanup to assess whether trichloroethylene (TCE) poses an "imminent hazard," a rare move that was triggered by EPA's finding that the contaminant poses a risk of cardiac birth defects, and which may spur lawsuits over new cleanup costs.
The move by Massachusetts regulators could set precedent among nearby states to reopen cleanup determinations for TCE-contaminated sites.
During a Jan. 28 meeting, Massachusetts Department of Environmental Protection's (MDEP) Paul Locke said the agency is planning to revisit approximately 200 sites contaminated with TCE to determine whether indoor air poses a risk of cardiac birth defects through vapor intrusion, which occurs when below ground pollution rises into indoor air. MDEP has been "trying to prioritize sites that have closed under the old rules," that may have levels of TCE that pose a risk of cardiac birth defects, Locke told the meeting of agency advisors. "This is a technical assistance, public health effort, not an enforcement effort, not a question of whether or not people met the standard at the time."
Observers say Massachusetts is the first state to revisit sites where cleanup obligations had been settled under standards that existed prior to EPA's 2011 determination that TCE poses a risk of cardiac birth defects. An industry lawyer says the plan could set precedent for other nearby states, and will likely spur lawsuits between present and past property owners.
"The current owner is going to be unhappy, and anyone in the chain of title previously is going to be unhappy," the source says. "Everyone is going to say that it's everybody else's fault."
But an environmentalist is backing the move, saying other states should follow Massachusetts' lead and ensure that sites deemed closed under old standards remain protective given new science on the risks of TCE.
EPA first included a risk of cardiac birth defects from short-term exposure to TCE in a September 2011 Integrated Risk Information System (IRIS) assessment, though industry has argued the risk is based on faulty science.
IRIS Assessment
The IRIS assessment set a reference concentration (RfC) of 2 micrograms per cubic meter to protect against chronic exposure through inhalation, though states and EPA regions have struggled to set limits to protect against cardiac birth defects, which occur during pregnancy, implying a risk from short-term exposure.
Industry officials have said the birth defects risk is prompting regulators in EPA Region 9 and other places to impose costly and unnecessary cleanup requirements at TCE-contaminated sites, and that EPA should revisit the science underlying the risk conclusion, though EPA has rebuffed those calls.
In a Jan. 23, 2013 memo, MDEP announced that it would conduct its own review of whether TCE poses a risk of birth defects, and adopted EPA's RfC to protect against an imminent hazard of cardiac birth defects in residences.
During the recent meeting with MDEP's Waste Site Cleanup Advisory Committee, Locke said agency staff recently prioritized the 200 sites for additional review from a pool of roughly 1,000 "closed" sites contaminated with TCE. Staff reviewed old files to determine whether levels of TCE in groundwater could suggest the site poses a risk.
MDEP planned to begin calling site owners in early February, Locke said, adding that the reviews would likely involve "some kind of sampling," though the specifics of the assessments would vary from site to site.
Depending on what MDEP finds while reviewing the first 200 sites, Locke said the agency may revisit the other 800 closed TCE-contaminated sites, though agency officials believe they have sufficient information to believe those sites are unlikely to pose an imminent hazard.
"We want to see if things may have changed that may lessen our concerns," Locke said. "Our primary focus is, what are the current conditions, and is there a pathway of concern?"
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What Chemists Do: US Chemical Safety Board Investigator
Feb 22, 2016 | Chem Info
By American Chemical Society
Mary Beth Mulcahy, Ph.D, is an investigator at the U.S. Chemical Safety Board. Mulcahy doesn't normally know what her day is going to be like at work. As an investigator at this federal agency, Mulcahy typically gathers evidence and witnesses at an incident scene. But her work goes beyond crunching data and analyzing numbers. Listen as Mulcahy shares her experience working at the CSB and what it takes for young professionals to be an investigator.
For Full Video: http://www.chem.info/videos/2016/02/what-chemists-do-us-chemical-safety-board-investigator
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The Aliso Canyon Gas Leak Has Been Plugged; Now What?
Feb 22, 2016 | LA Times
By Ivan Penn
The well failure at Southern California Gas Co.'s huge Aliso Canyon storage facility is evoking the worst of energy fears: snuffed-out pilot lights, rolling blackouts and a system too unreliable for the modern age.
Now that the utility has plugged the leak that began Oct. 23, fouling the air with natural gas and methane, attention has turned to the future of the gas storage field, which is the largest in California and ranks fifth nationwide.
On Monday, the Senate energy committee will hear a bill by Sen. Fran Pavley (D-Agoura Hills) to extend a moratorium on injecting gas into Aliso Canyon, ordered by Gov. Jerry Brown, until Southern California Gas completes safety measures that ensure that the community won't be subjected to future gas leaks.
By Pavley's account, two-thirds of Porter Ranch residents near the storage facility favor closing the operation for good.
But that suggestion has prompted a great deal of hand-wringing. The heads of the three major state energy agencies fired off a joint letter to the governor raising concerns about system reliability. An in-depth study is underway with a report due back by April on the effect of the loss of gas storage at Aliso Canyon.
Questions abound about whether permanent closure of the Aliso Canyon facility would destabilize the Los Angeles-area energy supply.
"The last thing Southern California Gas needs, quite frankly, is for a second well to leak or crack," Pavley said. At the same time, "I realize it can't be done," she said of permanently closing Aliso Canyon.
Troubles with the storage facility began long before anyone smelled or became sickened by spewing gas.
They include:
• As many as 39 of the site's 115 wells were developed prior to 1954, and lawmakers say they need to be brought up to modern standards.
• A lack of connections between the Southern California Gas system and those of the state's other gas utilities such as Pacific Gas & Electric Co., which operates a large field in Northern California.
• Reliance on Aliso Canyon to supply 60% of the gas used by Southern California Gas' 5.6 million residential customers, 215,000 commercial and industrial users, and 52 electric power plants.
"The whole L.A. area is dependent on one natural gas facility," said Rep. Brad Sherman(D-Sherman Oaks), during a news conference last week. "That's why I can't say shut it down."
Even injecting gas into Aliso Canyon's other wells — depleted by the leak and to reduce pressure in the field — isn't a foregone conclusion without assurances that the facility is safe.
"I would say they've got a very heavy burden of proof," Sherman said.
Southern California Gas is lobbying hard to ensure that the storage facility doesn't permanently close. The utility says it is "committed to taking actions to prevent" another leak.
There's a lot at stake for the utility.
Gas storage is part of Southern California Gas' long-term strategy to capitalize on the need to stockpile excess electricity generated by solar and wind power. The entire energy industry and states across the country — California in particular — are seeking economical ways of capturing the power generated by these renewable sources.
Dennis Arriola, president and chief executive of Southern California Gas, told the Los Angeles Times editorial board last summer that the company was investigating the conversion of solar and wind-generated electricity into a gas that could be injected into existing storage facilities. The technique, in use in Germany, employs electricity either to transform water into clean-burning hydrogen gas or to combine hydrogen with carbon dioxide to produce methane gas.
Shutting down Aliso Canyon could end that potential revenue stream.
Of more immediate concern is supplying customers when they need it most.
About a quarter of the natural gas that the utility delivers goes to fuel power plants. The commercial and industrial sector taps a quarter. And residential customers consume another 25%, with the rest used by wholesale customers, refineries and natural gas vehicle stations.
The natural gas still held in Aliso Canyon is expected to last about a year, unless unusual weather patterns force more use of heating and cooling systems that drive up electricity and gas demands.
"Without Aliso Canyon," said Stephanie Donovan, a Southern California Gas spokeswoman, "gas supplies needed to meet Southern Californians' demand would have to come from other sources, including other storage fields. Depending upon the nature of the demand, however, those sources could be too far from the Los Angeles Basin to meet peak demand."
Just two of California's 12 natural gas storage facilities come close to Aliso Canyon's capacity.
Pacific Gas & Electric operates the McDonald Island facility in San Joaquin County, about 325 miles north of Aliso Canyon. McDonald Island has a working capacity that is about 5% less than that of Aliso Canyon.
And Wild Goose Storage runs the Wild Goose Gas storage facility in Butte County, about 450 miles north of Aliso Canyon, with a capacity that is about 14% smaller.
But Southern California Gas isn't able to readily draw from those fields because there are no pipeline interconnections.
Aliso Canyon is a natural, underground rock formation that created a unique opportunity for holding natural gas until needed. Its enormous size made it the focal point of Southern California Gas' storage operations.
Donovan said Aliso Canyon and other storage facilities help keep fuel costs lower for customers. During high-demand times in the summer and winter, Southern California Gas can tap its storage facility rather than purchasing gas from outside suppliers at premium prices.
Robert Weisenmiller, chairman of the California Energy Commission, said his agency, the California Public Utilities Commission and the California Independent System Operator are studying the effect of the potential loss of storage at Aliso Canyon on the reliability of the energy system.
"We have concerns," Weisenmiller said. Meeting demand in the L.A. area with any loss of storage at Aliso Canyon during summer and winter is "going to be difficult."
One of Weisenmiller's concerns is that if there is a widespread natural gas outage, the utility will have to relight pilot lights at each house as PG&E did in the Discovery Bay area of Contra Costa County after a late-December outage.
"They literally were going house to house relighting the pilot lights," Weisenmiller said. "It's not pretty."
The U.S. Energy Information Administration issued a brief statement of concern Feb. 1 about the "implications for energy system reliability in the region" from any loss of storage at Aliso Canyon. The agency, part of the U.S. Energy Department, is reviewing the issue, noting: "It is not yet clear how much storage capacity will be available at the Aliso Canyon facility, and in what time frame."
Those who advocate closing the storage facility argue that the four-month leak shows material weakness at Aliso Canyon that poses serious concern to human health and safety.
"It's not a question of what will happen if we close Aliso, it's what will happen if we keep it open," said Michael Aguirre, a San Diego lawyer who has fought power and gas utilities over management of their operations and lack of public disclosure. "Aliso is a bright, flashing red light signal of the danger of our addiction to carbon-based electricity."
Sherman and Pavley say part of the answer might be to phase out some of the wells, such as the ones that are more than 50 years old. Those older wells, Sherman said, make up just 14% of the capacity at Aliso Canyon.
The two lawmakers want, at a minimum, improvements to ensure the safety of the wells before Southern California Gas starts pumping gas back into the wells. They would like wells sealed to protect against leaks; infrared cameras installed so residents can see what's going on inside the storage units; shut-off valves added to serve as a stop-gap measure if something goes wrong.
Who pays for the improvements?
Californians already are footing the bills for other utility mishaps. For example, the failed steam generator replacement at the San Onofre nuclear plant is costing Southern California Edison ratepayers more than $3 billion. And there are increasing costs for improvements to the electric grid to help with the ongoing transition to clean energy from the sun and wind.
Sherman said he believes shareholders of Sempra Energy, the parent company of Southern California Gas, should pay for costs created by the leak. And he said utilities must be prevented from relying so heavily on a few huge facilities, as Southern California Gas did with Aliso Canyon.
"Too big to fail," Sherman said, "is too big to exist."
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Tougher Tank Cars Too Slow in Coming: NTSB's Sumwalt
Feb 22, 2016 | Occupational Health and Safety
Two important rail safety changes for which the National Transportation Safety Board has been waiting are not yet realized, and a Feb. 18 post on NTSB's Safety Compass blog by board member Robert L. Sumwalt calls for them to be achieved. The two are changing over U.S. railroads' DOT-111 tanker cars that carry crude oil and ethanol so they meet the more stringent DOT-117 standard and implementing positive train control. But DOT has decided to give railroads until 2025 to convert to the DOT-117 standard (which includes tank head shields, thicker shell material for increased puncture resistance, tank jackets and thermal protection systems with reclosing high-capacity pressure relief devices, and stronger protection for bottom outlet valves and top fittings) for those cars and until 2029 for tank carrying other flammable liquids, Sumwalt wrote.
As for positive train control, it was required to be implemented by 2015, but late last year the deadline was extended to 2018. "Some railroads have already advised the FRA they will need an extension to the extension, pushing implementation to late 2020," Sumwalt wrote. "It takes effort and money to make changes to enhance safety, and the NTSB applauds the efforts thus far to implement PTC. But it's time to finish the job."
He began the post by commenting on the Feb. 15, 2015, derailment of 27 tank cars from a 109-car crude oil unit train near Mount Carbon, W.Va. "Crude oil was released from the derailed cars and immediately ignited into a pool of fire. Emergency responders evacuated 1,100 people within a half-mile radius of the accident and allowed the fire to burn itself out," he wrote. "All of the cars involved in the Mount Carbon accident were the enhanced DOT-111 tank cars built to the industry’s CPC-1232 standard, the best available general service tank car at the time of the accident. Yet, the fire created by two punctured tank cars resulted in 13 adjacent tank cars becoming breached when heat exposure weakened their shells, which were not equipped with thermal protection systems."
Sumwalt listed several other derailments in the United States that involved the release of flammable materials and post-accident fires, and he cited the terrible example of the derailment of a train hauling Bakken crude oil in Lac–Mégantic, Quebec, in July 2013, killing 47 people. NTSB would have preferred a more aggressive DOT-117 implementation schedule and awaits concerted efforts by the railroads to upgrade their existing DOT-111 tank cars in flammable liquids service to the new DOT-117 standard or relegate them to carrying less dangerous cargo, he added.
"A year after the Mount Carbon crude oil train fire, residents there know that they narrowly escaped their town becoming the American Lac-Mégantic – an outcome of a fiery derailment that could still happen at any moment," he wrote.
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Challengers Question EPA's Authority, Rulemaking Process in Briefs
Feb 22, 2016 | E&E Energywire
By Ellen M. Gilmer
Let the briefing wars begin.
Challengers to the Obama administration's landmark Clean Power Plan filed opening briefs Friday in the massive tangle of litigation that has ensnared the rule since its release last year. Their arguments are familiar: The climate rule violates the Clean Air Act and treads on state regulators' turf.
"If upheld, the Rule would lead to a breathtaking expansion of the agency's authority," the petitioners wrote in a joint brief, adding later: "Congress did not intend and could not have imagined such a result when it passed the provision more than 45 years ago. The Rule must be vacated."
The petitioners include 27 states and a slew of electric utilities, coal companies and business groups, which two weeks ago successfully pushed the Supreme Court to freeze the rule while the litigation plays out.
Now, the stakes at the U.S. Court of Appeals for the District of Columbia Circuit are higher than ever. Many experts viewed the Supreme Court stay as a sign of the rule's ultimate fate, but the death of conservative Justice Antonin Scalia means a more uncertain outlook at the high court and heightened focus on the D.C. Circuit's decision (Greenwire, Feb. 19).
The flock of petitioners in the case -- more than 150 individual parties -- joined together for two merits briefs last week. One focuses on overarching questions of legal authority and constitutionality, while the other digs into EPA's alleged missteps in the administrative process.
"This rule, which exceeds EPA's authority and sidesteps Congress, must be stopped," West Virginia Attorney General Patrick Morrisey (R) said in a statement Saturday. "EPA's far reaching actions are literally unprecedented, which is undoubtedly one of the major reasons why the US Supreme Court issued its own unprecedented stay last week."
Core legal issues and procedural questions
In the first brief, the challengers argue that EPA has warped Section 111(d) of the Clean Air Act and attempted to draw unprecedented authority from the provision. They say the measure does not authorize the agency to set emissions targets across the power sector -- beyond the "fence line" of power plants.
"EPA's newly-discovered authority threatens to enable the agency to mandate that any existing source's owners in any industry reduce their source's production, shutter the existing source entirely, and even subsidize their non-regulated competitors," attorneys wrote in the filing.
Such an interpretation would allow the agency to be "a central planner for every single industry that emits carbon dioxide," they added.
The Clean Power Plan also illegally attempts to regulate sources that are already regulated under Section 112 of the Clean Air Act, the petitioners argued, and the plan entirely undermines the design of the law in its reliance on a "standard of performance" that seeks to shift electric generation to different sources, rather than improving existing sources.
"The Rule's 'generation-shifting' mandate does not involve a source improving its emissions performance when it generates, but instead consists of plants reducing or ceasing work, ornon-performance, as their production is 'shifted' to EPA-preferred facilities," the brief says. "Congress specifically amended the CAA in 1977 to preclude standards of performance set on this basis."
Finally, the petitioners argue in the first brief that the Clean Power Plan oversteps federal authority and illegally meddles in state regulatory programs to achieve federal goals. While states may forgo compliance planning for the rule and instead use a federal implementation plan, the petitioners say either option "commandeers the States' exclusive authority to regulate intrastate generation and transmission of electricity."
The second brief digs into inadequacies in the rulemaking process. According to the petitioners, EPA's final rule is fundamentally different from the proposed rule, robbing stakeholders from their opportunity to comment on the final details.
"The Rule is so untethered to what EPA proposed that no one could have divined the Rule EPA finalized -- an emission reduction program based on separate, uniform performance rates for coal- and gas-fired units applied nationwide," the brief says. "This violates a bedrock administrative law principle -- that the final rule, or at least something akin to it, has actually been proposed, so that the public has a meaningful opportunity to comment."
The brief also argues that EPA failed to demonstrate that the emissions reduction plan represented the "best system of emission reduction," as required under the Clean Air Act.
Plus, the petitioners say, the agency's analysis supporting the rule was based on "unfounded assumptions and pure speculation, all by an agency that by its own admission lacks expertise to restructure the energy sector."
EPA's defense
EPA and the 18 states and numerous environmental groups, municipalities and energy companies supporting the Clean Power Plan have previewed their counterarguments in earlier filings.
The agency repeatedly has defended against challengers' arguments about Clean Air Act authority by maintaining that the agency is acting on clear legal authority spelled out in the statute and, in the case of any ambiguity, it is entitled to deference in interpretation.
Earlier this month, environmentalists and power companies in favor of the rule argued in a Supreme Court filing that petitioners' state authority arguments did not hold up in light of the flexibility the Clean Power Plan offers.
"Contrary to the Applicants' protest, the Rule does not dictate the closure of any specific power plan or deprive states of flexibility to take into account the remaining useful lives of individual plants, so long as overall emission reduction targets are met for the group of plants located within the state," they said (EnergyWire, Feb. 5).
Environmental Defense Fund attorney Vickie Patton said in a statement Friday that EPA's allies remain confident that the Clean Power Plan will ultimately be upheld.
"The Clean Power Plan has a rock-solid anchor in our nation's clean air laws, and will help us protect our families and communities from the threat of climate change," she said. "We look forward to presenting our case on the merits."
EPA and its allies are scheduled to respond to the petitioners' briefs on March 28. Petitioners will have a chance to reply April 15, and oral arguments are set for June 2.
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After the Stay: Where All 50 States Stand
Feb 22, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
Eighteen states challenging the legality of U.S. EPA's Clean Power Plan have halted planning discussions following the Supreme Court decision to stay the regulation, according to a reviewby E&E staff.
Of the 47 states affected by the rule, nine are weighing whether to stop preparing or perhaps slow down now that they may have an extra year and a half to work out plans. The other 20 states -- mostly supporters of the climate action -- will press on with discussions about how to meet the carbon emissions limits for power plants, even though EPA can no longer legally require them to do so.
"We have obviously a big issue in Pennsylvania," said Gov. Tom Wolf (D), whose state intends to keep planning. "The coal industry is huge, with a lot of jobs. Also, because of our location we generate a lot of power."
That's why it's important for Pennsylvania to get its plan right, Wolf said. "I want Pennsylvania to be a leader in clean power," Wolf told E&E in a brief interview.
The Supreme Court ruling earlier this month to stay the Obama administration's signature climate change regulation has thrown states into disarray. Before the legal bomb dropped, the vast majority of states -- even ones suing to stop the rule -- had begun negotiating how to make carbon cuts. Over the past two weeks, a significant number of key players have left the table.
The review, developed from dozens of interviews with officials across the country, is the first comprehensive look at where states stand in a rapidly shifting political landscape.
Many state leaders ideologically opposed to the rule announced they would suspend planning. But some veered from their expected political course, arguing they must keep strategizing carbon-cutting options because the rule is on hold, not struck down.
Wyoming Gov. Matt Mead (R), governor of one of the nation's most coal-heavy states, told E&E that although he is "thrilled" EPA's climate rule was stayed, his state would continue to plan.
The stay "provides the states, utilities, coal companies time to figure out how to go about this if, in fact, it does become law," Mead said.
"Frankly, it allows us time to have a new administration take a look at this and see if this is the way to go or if there's a better way to go," the governor added.
Wyoming's Legislature has other ideas. The state Senate on Wednesday passed a measure that would bar the Department of Environmental Quality from devoting funds to planning for the rule. The Wyoming House will consider the proposal this week.
Growing pressure from all sides
Beyond Wyoming, the act of planning for the Clean Power Plan has become even more politically toxic.
In Virginia, where Democratic Gov. Terry McAuliffe supports the regulation, a Senate panel of the Republican-controlled General Assembly last week advanced a bill written in the fall to require legislative approval of any compliance plan.
The bill -- which will go to the Senate and House floors shortly and is likely to pass along party lines -- would "basically tie [the Department of Environmental Quality's] and the governor's hands," said Michael Dowd, director of DEQ's air division. The bill would also require an extensive report on the possible impacts of the plan.
States will feel pressure from all sides, as environmental advocates encourage them to keep planning and critics of the rule tell them to stop.
"Everyone involved -- state officials, industry managers and concerned citizens alike -- now must recalibrate what to do while the litigation proceeds," Natural Resources Defense Council attorney David Doniger said in a blog post last week. "We believe prudent states and power companies will continue planning and implementing cleaner energy policies despite the stay."
The conservative American Energy Alliance, though, is encouraging states to halt planning and expects more bills like the one in Wyoming to surface, according to Dan Simmons, vice president of policy.
Simmons argues states shouldn't be "spending time and resources complying with the regulation that we believe is not only illegal but also damaging for ratepayers."
However, he recognizes that if the Clean Power Plan survives, it "definitely makes sense" for states to start planning in the hopes of keeping implementation costs down, Simmons said.
'We don't want to be caught flat-footed'
Last year when Senate Majority Leader Mitch McConnell (R-Ky.) urged states to "just say no" and refuse to comply with the rule, multiple state legislatures considered bills to that effect. Some of them were modeled on language from an outside political group, the American Legislative Exchange Council.
But many dialed back their efforts when industry interests and officials raised concerns that the legislation could result in the federal government imposing its own plan on the state. Simmons said he couldn't say whether lawmakers might fall into that pattern again.
The high court stay could also further divide state officials who disagree about whether taxpayer dollars should be spent on planning for the rule.
Louisiana, whose attorney general is challenging the Clean Power Plan, will continue examining a possible state plan.
"We plan to hold at least one outreach meeting" in mid-March, said Chuck Carr Brown, secretary of the Louisiana Department of Environmental Quality. Brown was named to his post this year by Gov. John Bel Edwards (D), who replaced Bobby Jindal (R). Still, Ruth Wisher, press secretary for Louisiana Attorney General Jeff Landry (R), said that "Louisiana needs to take no action to come into compliance" given the stay.
Regardless of political conflicts, many states halting official Clean Power Plan work appear poised to quietly continue to look at potential power-sector carbon cuts.
Glade Sowards, the Utah Division of Air Quality's Clean Power Plan coordinator, said that although his office is suspending its formal planning process, "we will continue to stay engaged in regional activities or other kind of outreach, in terms of the 'what if' scenarios."
"The stay is just that -- it's a stay -- so we need to be mindful that a potential outcome could be that the courts uphold it," Sowards said. "We don't want to be caught flat-footed."
Several states in limbo
In Oklahoma, where the governor last year prohibited the state from drafting a compliance plan for the EPA rule, Energy and Environment Secretary Michael Teague said Oklahoma continues to engage with the Southwest Power Pool and key players on the plan's effects.
"Oklahoma no longer faces a September compliance date and can focus on assisting the attorney general on overturning this rule," he said in a statement.
In some states where leaders strongly oppose the regulation -- including Arizona, Ohio and South Carolina -- officials said they were still debating what to do next.
"[Arizona's Department of Environmental Quality] is continuing to assess its options while completing its outreach and soliciting feedback from its stakeholders, partners and elected officials," said a statement from Eric Massey, Air Quality Division director.
"A long-term decision will be made based on the feedback we continue to receive," he said.
Meanwhile, in Nevada -- one of just a handful of states not supporting or opposing the rule in court -- "planning efforts are postponed while we consider the matter of the Supreme Court decision," according to Scott Kelley, a spokesman for the governor's Office of Energy.
Some states' responses on whether to plan were still evolving as of late last week.
Mississippi, one of several states that once planned to adopt a "just say no" strategy, initially planned to hold a public meeting tomorrow and discuss what the stay means, environmental agency officials confirmed. But the Department of Environmental Quality in an email Friday canceled that meeting, bringing the total count of states suspending work to 18.
"The stay, so long as it is in place, stops any of the requirements of the Clean Power Plan from becoming effective; therefore, MDEQ is suspending its efforts to develop a state implementation plan until there is a final court ruling," which likely will not come until late 2017 or early 2018, said Chad LaFontaine, chief of the energy and greenhouse gases branch of DEQ's Air Division.
Utilities 'putting everything on ice'
While some states shift their Clean Power Plan considerations behind the scenes, the energy industry is more interested than ever in how it might choose to comply with the regulation, should it survive judicial review.
Advanced Energy Economy, a business group of green energy and technology companies, is closely tracking how states are responding to the stay.
"The Clean Power Plan has the potential to be a market driver for our member companies, and decisions about how the rule will be implemented are going to be made state by state," said Maria Duaime Robinson, senior manager of energy policy and analysis at AEE. "We don't want to miss an opportunity to help states make use of advanced energy technologies to modernize their electric power systems in the course of meeting EPA standards."
Investor-owned utilities could also drive continued conversations surrounding the Clean Power Plan. Many have said the stay doesn't change much for them and they will continue with business plans focused on cutting greenhouse gas emissions.
More than two-thirds of about 500 utility executives surveyed before the stay for a Utility Divereport released this month said they support carbon standards as strict as the Clean Power Plan or stronger.
Before the stay, North Carolina-based Duke Energy Corp. encouraged the state to collaborate on planning. Duke says it will move toward a low-carbon future regardless of where the rule stands.
But North Carolina's Environmental Management Commission has canceled discussions on the Clean Power Plan.
"They are putting everything on ice, right now," said Myra Blake, an attorney with the Southern Environmental Law Center in Chapel Hill, N.C., and a Clean Power Plan supporter.
"We have been and will continue to work constructively with each of our states as they determine their path forward," Duke spokesman Sean Walsh said last week.
Doniger noted in his blog post that the power sector has embarked on an "unstoppable shift," and the stay "cannot reverse the underlying economic forces that are moving power companies away from coal."
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New La. Regime Eyes Outreach on Carbon Plan Amid Stay
Feb 22, 2016 | E&E Energywire
By Edward Klump
Last November's election of a new Louisiana governor has altered the state's discussion around U.S. EPA's Clean Power Plan, and a key official says he will explore carbon-cutting options despite a court stay.
Louisiana had been focused on litigation through its attorney general and the Louisiana Department of Environmental Quality (LDEQ), as both sued over the plan last year.
A different perspective arrived after voters chose John Bel Edwards, a Democrat, to replace Bobby Jindal, the two-term outgoing Republican governor. Edwards appointed Chuck Carr Brown as secretary of LDEQ in January.
Brown, in a recent interview, said his office is starting the process of meeting with utilities and public interest groups to examine a potential state plan, even as litigation continues. That was before word spread late on Feb. 9 that the U.S. Supreme Court had decided to freeze the EPA carbon plan, forcing states to reconsider their options. Still, Brown said in a statement last week, Louisiana plans to move forward on exploring the Clean Power Plan.
"We will reach out to all our stakeholders," Brown said. "We plan to hold at least one outreach meeting" in mid-March, he said.
Not everyone has the same focus.
Ruth Wisher, press secretary for Louisiana Attorney General Jeff Landry (R), said in a statement that "Louisiana needs to take no action to come into compliance" in light of the stay. Landry also was elected last year, though he defeated a fellow Republican.
"We are pleased that our request for a stay of EPA's rule was granted by the Supreme Court," Wisher said, adding, "This was a victory for Louisiana, who could be on the hook for the billions it would cost to implement this rule."
Ark.'s approach
Louisiana's two-track approach has similarities to planning by Arkansas officials. Arkansas, while in litigation, pursued a process to examine its options.
"We think that they've kind of got a good model," Brown said, adding that Louisiana could "help other states bridge the gap" with its natural gas resources and a possible trading program.
The Arkansas Department of Environmental Quality and Public Service Commission said they were pleased to learn of the stay.
"We look forward to engagement that can now occur on a timeline and in a context that makes sense and represents good stewardship of taxpayer resources for Arkansas, for our citizens, and for our regulated community," the agencies added in a Feb. 12 note.
They asked for input on several questions in light of the stay, including how to maximize resources already invested, whether a suspension of state activity would be required, how an obligation to provide a cost estimate for a strategy would be affected and how a stakeholder group might function.
EPA's plan aims to cut carbon dioxide emissions at power plants 32 percent by 2030 compared with 2005 levels. Targets vary by state. The plan sought to give states until Sept. 6 to turn in a plan or make an extension request or face a potential federal plan. If a state got an extension, a progress report was to have been due by Sept. 6, 2017, with a final state plan needed by Sept. 6, 2018. That timing now is uncertain.
Before the stay, Brown spoke of looking at how Louisiana could benefit, noting its gas resources. He said renewable energy also could be explored. The LDEQ secretary said he was considering a mass-based approach that could incorporate trading, though discussions would continue.
Meanwhile, a filing this year at the Louisiana Public Service Commission (LPSC) shows plans to have a stakeholder process to examine state implementation issues related to the Clean Power Plan. But the document, signed by a staff attorney for the commission, stated that the process shouldn't be seen as support for EPA's rule.
Seeking engagement
The filing says: "The Commission has expressed, and continues to express, significant concerns about the CPP and its impact on Louisiana ratepayers." If the process moves ahead, LPSC staff could take a proposal to the commission for a vote, which would be sent to LDEQ as a recommendation.
A number of comments were previously posted in an LPSC docket. In September, for example, the Louisiana Energy Users Group questioned the legality of the rule and raised issues in areas such as power prices and reliability. But it also said LPSC should be involved if a state implementation plan were going to be considered.
Casey DeMoss, CEO of the New Orleans-based Alliance for Affordable Energy, said last year that Louisiana had reason to support global efforts to cut CO2 emissions given its vulnerability. She saw the Clean Power Plan as a start down the right path.
In a recent interview, DeMoss said that "it's our understanding that the governor is serious about the environment and climate change" and that Louisiana could have a state implementation plan. She said the state should move ahead despite the stay.
New Orleans-based Entergy Corp., a power company with interests in Louisiana and other states, expressed concern about the legality of EPA's approach last year.
It also said it would be looking at the compliance timeline, the requirements for each state, a state's ability to select a mass-based approach and create a trading-ready plan, and the possible effects on customers as well as the U.S. nuclear fleet.
Entergy Chief Financial Officer Drew Marsh, in an interview last week, said his company would like parties to stay engaged. Although Entergy sought a legal review of the Clean Power Plan, Marsh said the company has been an advocate for clean air for years.
While Marsh said investments tied to a carbon plan could help business in some ways, he said customers' interests regarding rates and the environment also need to be considered.
"We are trying to work with all our stakeholders, including the states, so that they can make the best decision for the state," Marsh said.
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NARUC's Kavulla Says States Should Avoid Wasting Time on Details of Rule Following Stay
Feb 22, 2016 | E&E TV
Are regulators wasting energy by continuing to focus on the nuances of U.S. EPA's Clean Power Plan, following the Supreme Court's stay of the rule? During today's OnPoint, Travis Kavulla, president of the National Association of Regulatory Utility Commissioners and a member of the Montana Public Service Commission, explains why he believes regulators should shift their focus to broader conversations on carbon allowance trading and carbon price risk modeling. He also discusses the existing challenges to giving utilities market certainty. This interview was recorded at the NARUC winter meetings in Washington, D.C.
Transcript
Monica Trauzzi: Hello and welcome to a special edition of OnPoint from the NARUC winter meetings in Washington, D.C. I'm Monica Trauzzi. Joining me today is NARUC President Travis Kavulla. President Kavulla, thank you for joining me again.
Travis Kavulla: Monica, thanks for coming to our meeting.
Monica Trauzzi: Absolutely. President Kavulla, what an incredibly dynamic moment right now for state utility regulators as the future of the U.S. EPA's Clean Power Plan is uncertain. Following the Supreme Court's stay of the rule, what are the key questions you're hearing from regulators this week at the meeting?
Travis Kavulla: There's a couple. First there's a question on the merits and viability of the rules, which I think is difficult to answer. We really don't even now know how the circuit court is going to rule or the U.S. Supreme Court is going to rule. The fact that the Supreme Court has stayed the regulation indicates a pretty deep-seated skepticism about the rule because it's just highly unusual, really unprecedented for the Supreme Court to take this kind of an action. But it's really kind of a double whammy. It's not just that. It's the untimely passing of Justice Antonin Scalia, and it's difficult that this question reduces into the life or death of a man who had this long tenure. But in reality that is what seems to be the case. There's a lack of clarity on the merits, so instead we're kind of asking about just the mechanics of the stay, if there is a delay associated with the stay, which seems pretty clear, in states' planning how long does that last. And we're trying to get a clear legal answer on that.
Monica Trauzzi: I mean, how difficult is the situation right now for state regulators when they have to go back home and do their planning?
Travis Kavulla: It is difficult. You know, even before the EPA had put forward this rule regulators were trying to incorporate carbon price risk into their planning models. They were talking about low-carbon technologies. Those things will continue notwithstanding the stay, just like they were occurring before the EPA even issued their rule. But in terms of frankly submitting the paperwork or doing the kind of meetings and thinking of all the mundane aspects of how you would comply with either a rate-based or mass-based approach to the EPA rule, a lot of that work almost necessarily stops. It was being driven by a hard deadline, and now that that hard deadline isn't there I imagine people's focus will shift to the more conceptual questions dealing with carbon mitigation.
Monica Trauzzi: But are there any regulators that you've spoken to who have said that they indicate -- their state indicates to move forward with compliance mechanisms as if the rule were in place?
Travis Kavulla: Not really. I mean, I've heard of one state that's said until the EPA tells us we don't need to submit something in the September we're going to plan on doing so, but it's fairly clear the EPA and all elements of this regulation are stayed depending the court ruling.
Monica Trauzzi: So when West Virginia AG Morrissey called on all regulators to put their pencils down, you think he made the right move there with regards to the power plan?
Travis Kavulla: I think it would be to some degree a waste of our energies to focus on the nuances of the regulation at this moment in time. I think we probably need to shift to having a higher-level conversation about how carbon price risk modeling works, how conceptually one could trade allowances. These are conversations that will be helpful if the rule is upheld in its entirety or even if it's upheld only in part, or frankly even if it's reversed and state policies in those more left-leaning states that would enact carbon policies took its place. So we're all waiting to see. It seems that the U.S. Supreme Court would probably take up this issue regardless of how the circuit court rules, and if they do, you know, we're not going to have a clear answer on the viability of this regulation until the middle of next year or even early 2018.
Monica Trauzzi: But if we do see this sort of patchwork created of some states who decide at this moment to move forward with some kind of compliance mechanism as if the rule were in place and other states who don't, are those states who don't at a disadvantage if the rule is upheld in court?
Travis Kavulla: Well, they shouldn't be, because the stay is intended to have the effect of preserving the rights of those states pending litigation. I mean, if the EPA were to say, for instance, that, you know, well, the trick's on you; you should've been planning anyways regardless of the stay -- you know, that's not how a stay works.
Monica Trauzzi: Right.
Travis Kavulla: So I would say to states let's do a little scoping, let's think about the work we can do that will be useful regardless of what this rule is, how it looks, whether it's in place even at all -- let's have that conversation so that we aren't just wasting the next year and all of these meetings that everyone is holding, trying to talk about the details of a regulation that may never come to pass.
Monica Trauzzi: Utilities want certainty, though, and many of their business models are driving in the direction that the Clean Power Plan was going in, is going in. What are you hearing from utilities on how they'd like to see regulators proceed?
Travis Kavulla: Well, utilities do want certainty, but you can't always get what you want, to paraphrase the song. There's a couple market fundamentals that are driving this transition, as you say. Very low natural gas prices are pushing coal to the margins, as well as the declining cost of renewables. But there are all these state and federal interventions besides the Clean Power Plan that have worked to essentially distort those market fundamentals as well: state renewable portfolio standards, federal tax policy, other environmental regulations, as well as these sort of state grand bargains that we're seeing some of where environmentalists obtain a commitment on the part of utilities to close down coal plants and utilities get guaranteed cost recovery for those investments. So, you know, there's a lot of policies besides the Clean Power Plan that are moving in that direction. It still is an open question of how much of a patchwork, a crazy quilt of the states that leaves us at.
Monica Trauzzi: So you've put your pencils down in Montana?
Travis Kavulla: Our governor has suspended the advisory council that we had on the Clean Power Plan, yes.
Monica Trauzzi: And so how are yourself and other regulators proceeding?
Travis Kavulla: Well, I'll put it this way. We expect the largest utility we regulate, Northwestern Energy, to file a resource procurement plan ... in March of this year. And it would be negligent on the part of the utility and on the part of us if that document contained no description of the possibility that carbon will at some point become regulated within the 20-year horizon that they're meant to plan for. So that's a good, concrete example that the council or task force that was meant to address a very concrete regulation isn't doing its work, but that doesn't mean utilities stop thinking and talking about carbon price risk and how it affects the utility plant that they own.
Monica Trauzzi: All right, we'll end it there. Thank you for your time today.
Travis Kavulla: Hey, thank you, Monica.
Monica Trauzzi: And thanks for watching. We'll see you back at the studio tomorrow.
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Supreme Court to Hear Major Grid Case Without Scalia
Feb 22, 2016 | E&E Greenwire
By Robin Bravender
A consequential energy case is on the Supreme Court's docket this week as the justices hear their first arguments since the death of Justice Antonin Scalia.
On Wednesday, the court will hear the second high-profile case of this term where justices must weigh the divisions of state versus federal authority over electricity markets.
At issue: Does a Maryland program providing incentives for new power generation improperly veer onto federal regulators' turf?
Lower courts said it does. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals upheld a decision to knock down the state program, finding that Maryland's efforts to spur new natural gas generation infringed on the Federal Energy Regulatory Commission's jurisdiction over "wholesale" rates for electricity and transmission that crosses state lines.
At least four justices on the high court voted to take on the case, despite objections from the Obama administration, signaling that several justices might be interested in reversing the lower court's findings. The Supreme Court case involves two consolidated appeals -- Hughes v. Talen Energy Marketing and CPV Maryland LLC v. Talen Energy Marketing.
The stakes are high. States argue that their ability to ensure appropriate power generation is in jeopardy, while some utilities contend that the program is illegal and unfairly distorts costs.
Appealing the lower court's decision are Maryland Public Service Commission Chairman W. Kevin Hughes and CPV Maryland LLC, the company that submitted the winning bid to construct a new natural gas power plant. Their backers include a broad coalition of states -- including Connecticut, Iowa and Mississippi -- the American Wind Energy Association, the National Governors Association, the National Association of Regulatory Utility Commissioners, the American Public Power Association and the National Rural Electric Cooperative Association.
In urging the high court to hear the case, Maryland officials said the issues are "exceptionally important." The lower court's decision "imperils dozens of state laws under which private parties are investing billions in needed generation plants, from clean-coal facilities in Illinois to offshore wind in Massachusetts."
They noted that another appeals court, the 3rd Circuit, followed the 4th Circuit's lead by striking down a New Jersey law to encourage new gas-fired generation. "Going forward," they said, "the attacks leveled by this decision and its progeny will sow uncertainty, stifle investment in needed facilities, and open a dangerous generation planning vacuum."
On the other side: Talen Energy Marketing LLC. It's supported by the Electric Power Supply Association, the PJM Power Providers Group, American Electric Power Co. and others.
They argue that Maryland's program improperly treads into FERC's territory by mandating that a generator receive a different price than one approved by FERC for electricity on the wholesale market.
The Obama administration urged the high court not to review the case, arguing in a brief last September that the lower courts correctly found that Maryland and New Jersey incentive programs were pre-empted.
"Both courts explicitly limited their preemption holdings to the specific circumstances of the programs at issue and noted non-preempted ways (both economic and non-economic) in which States can support particular forms of generation," Solicitor General Donald Verrilli wrote.
Two related cases on a similar New Jersey program have been put on hold at the Supreme Court, pending a decision in the Maryland case.3rd in a string of FERC cases
This is the third high-profile case on FERC's jurisdiction over electricity markets in the last few years, and the three opinions combined are expected to help clarify the boundaries for FERC and states.
"I think we will look back on these series of decisions decades from now as foundational and landmark decisions that allocate responsibility for governing the grid in a very different way than the bright line split of the Federal Power Act would seem to imply," said Joel Eisen, a law professor at the University of Richmond.
He compared it to early decisions in telecommunications law when courts were grappling with the "rapid evolution of technology and a legal framework that wasn't designed for the modern technology."
Last year, the court decided a case looking at whether state antitrust lawsuits against major energy companies were "field pre-empted" by Congress, meaning FERC's authority over some of the practices broadly barred states from wading into the issue.
In the case, Oneok Inc. v. Learjet Inc., the court ruled 7-2 that the state lawsuits weren't pre-empted (Greenwire, April 21, 2015).
Earlier this term, the court issued another major decision in two combined cases over FERC's jurisdiction, FERC v. Electric Power Supply Association and EnerNOC Inc. v. Electric Power Supply Association.
In that 6-2 opinion, the high court upheld FERC's so-called demand-response rule for energy conservation, finding that it hadn't stepped on states' authority even though it affected states' domain of "retail" electricity sales.
Lawyers tracking that case saw the opinion as a recognition of FERC's broad regulatory authority, but didn't see it as a clear signal that the justices will determine that FERC's authority eclipses that of the state in the Maryland cases (Greenwire, Jan. 26).The empty chair
For this third energy market case, the late Justice Scalia won't be on the bench.
He was a vocal participant in the past two cases, penning the dissents in both.
In the Oneok case, Scalia -- joined by Chief Justice John Roberts -- interpreted the Natural Gas Act to mean that if the government "may regulate a subject, the States may not." In the majority opinion, he wrote, "the Court smudges this line."
And in this term's demand-response case, Scalia said in his dissent that the Federal Power Act barred FERC's demand-response rule because it waded into states' authority over retail markets.
Given the lopsided votes in the past two cases and the fact that Scalia was in the minority in both, "I expect that the court should be able to find a majority to decide this case even after Justice Scalia's death," Eisen said.
Taken together, "I think these cases suggest that the court is taking a very functionalist approach to these statutes," said Matthew Christiansen, an energy fellow at New York University School of Law. The justices are looking at energy laws from the 1930s and saying, "What are the basic goals behind these statutes?" and wondering how to "make the statute work in light of the changed industry."
"I think all four liberals seem to be on board with the functionalist side," Christiansen said, adding that he thinks the court's four liberal justices -- and perhaps some of the others -- will find that the state program isn't broadly "field pre-empted." It's less clear how the court will handle the issue of "conflict pre-emption," he said, determining whether state laws interfere with federal rules.
Eisen said the case could shake out in a number of different ways.
To say that the state program is broadly pre-empted "would appear to give FERC complete authority over the wholesale markets, and that would be inconsistent" with the demand-response ruling, Eisen said.
A narrow holding could "find that state laws that directly target the prices in the wholesale markets are pre-empted, but would leave room for other state laws."
Ultimately, Eisen added, "this case is going to go a very long way toward deciding what states can do, what FERC can do."
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Proposed Rules Aim to Control Brine and Oil Pipeline Spills
Feb 22, 2016 | E&E Energywire
By Mike Lee
The owners of more than 12,000 miles of oil and gas pipelines in North Dakota would have to register with the state under a regulatory proposal aimed at stopping a high-profile string of leaks and spills.
Other rules proposed by the North Dakota Industrial Commission would put in place recommendations that came out of a pipeline safety study last year, such as pressure testing and better information sharing among pipeline operators and the oil companies they serve.
The rules would affect the gathering systems that collect oil, gas and wastewater. Unlike long-distance pipelines, gathering lines are lightly regulated in North Dakota and most other states.
Since 2011, the commission has required the owners of about 12,000 miles of pipe to post a bond to cover cleanup costs when they're shut down.
The new rules would extend the bonding requirement to an estimated 12,700 miles of pipe that were built before 2011 and would require owners to notify the state when a system is sold.
If the rules are approved, the state Department of Mineral Resources will be able to track "who owns that pipeline from start to finish," said department spokeswoman Alison Ritter.
The pipelines rules are at least the third regulatory package in three years aimed at minimizing the impact of oil production in the Bakken Shale formation. The state imposed rules in 2014 to cut back on the amount of natural gas burned in flares, and it adopted other rules the same year to make Bakken oil safer to transport by rail (EnergyWire, July 15, 2014; EnergyWire, Dec. 10, 2014).
The Bakken formation produced large amounts of briny wastewater along with oil and gas. The water can be several times saltier than seawater and contain traces of petroleum and drilling chemicals. It's typically disposed of in injection wells, but has to be trucked or piped to the disposal site.
The number of pipeline spills has increased along with oil production in North Dakota, and some of the largest incidents have involved brine pipelines. Cleaning up brine spills can take years, since the brine can sink into the ground, kill vegetation and render the soil sterile.
Early last year, landowners north of Williston found a 3-million-gallon brine spill that contaminated nearby Blacktail Creek and flowed downstream to the Missouri River. A state investigation determined that the pipe involved, which collected brine from 44 wells, had been leaking for 98 days before the leak was discovered and fixed (EnergyWire, Dec. 14, 2015).
Spurred by the Blacktail Creek spill and other incidents, the state Legislature commissioned a study by the University of North Dakota's Energy and Environmental Research Center. The study, published in December, recommended better training for pipeline operators, better information sharing, and tougher testing and inspection of newly built lines (EnergyWire, Dec. 4, 2015).
The Department of Mineral Resources will hold hearings on the proposed regulations in April, and could finalize the rules by the end of 2016 or early 2017, Ritter said. If they're approved, the bonding requirements would go into effect July 1, 2017.
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Courts' Stays Of EPA Rules Spur Debate On Agency Agenda Through 2017
Feb 22, 2016 | Inside EPA
By Bridget DiCosmo
Federal courts' stays of major EPA rules -- including an appellate stay of the Clean Water Act (CWA) jurisdiction rule and the Supreme Court stay blocking the agency's climate rule for existing power plants -- are spurring debate over how the stays might impact EPA's success pursuing its agenda through the rest of the Obama administration.
"It slows momentum big time," says one industry source about the two national stays and other adverse rulings from federal appellate and district courts on agency air, water and other policies. The legal decisions help to underscore EPA critics' claims that several major regulations unlawfully exceed the agency's authority, the source says, which could provide ammunition for Republicans to pursue oversight, such as more hearings on the rules.
Other industry sources, however, agree with environmentalists that the stays of the CWA rule and the existing source performance standards (ESPS) greenhouse gas rule will have minimal impact on EPA's agenda.
"I don't think the stay affects anything," a U.S. Chamber of Commerce spokesman says of the Supreme Court's unexpected 5-4 decision announced Feb. 9 to halt implementation of the ESPS after the lower court declined to issue such a stay while it reviews the rule -- which occurred days before the death of Justice Antonin Scalia.
"We'd argue it should have a chilling effect, but I don't think [EPA] alters their course," the spokesman says. EPA's agenda is clearly established for the administration's last 11 months, the spokesman adds, such as pending methane emissions standards for new sources within the oil and gas sector, and is unlikely to change.
Similarly, one environmental lawyer says "this administration has a policy agenda and they're going for it," adding that "at the 11-month mark, most of the legacy rulemakings" have already been completed, and that the CWA and ESPS stays merely continue the regulatory status quo and have not addressed the merits of either rule.
"What they're doing is pushing their authority -- they have a robust view of their authority under these statutes and they're pushing it," that source adds, saying that with both the CWA rule and the ESPS the agency has built a voluminous record of scientific and legal support underlying both rulemakings.
Litigation Losses
In addition to the stays of the CWA jurisdiction rule, which EPA jointly crafted with the Army Corps of Engineers, and the ESPS, the agency has suffered some other notable losses in court.
For example, the high court last year in Michigan v. EPA held that EPA failed to consider costs in its initial finding that is utility air toxics rule was "appropriate and necessary" under the Clean Air Act. Nevertheless, the U.S. Court of Appeals for the District of Columbia Circuit allowed the rule to stay in effect while EPA reworks the supporting "supplemental" cost finding, which concludes that the regulation is still necessary.
Also last year, Judge H. Russel Holland of the U.S. District Court for the District of Alaska allowed a mining firm to proceed with its challenge to EPA's novel preemptive "veto" of the planned Pebble Mine project in Alaska's Bristol Bay watershed. Holland said industry's claims that agency officials worked with a de facto advisory committee of mine opponents in crafting the CWA veto, if true, would rise to the level of illegal conduct.
Holland issued the June 4 order Pebble Limited Partnership (PLP) v. EPA despite the government's argument that even if industry can produce evidence to support its allegations, the "coordination" was lawful.
The industry source argues that the decisions in Michigan and Pebble combined with the CWA rule and ESPS stays bolster GOP lawmakers and others that have raised concerns about the legality of the agency's various actions, and in addition to hearings could help make the case for Government Accountability Office investigations.
As an example, GAO in December at the request of GOP lawmakers issued a legal opinion that the agency violated legal restrictions on use of appropriations in how it promoted its CWA jurisdiction rule.
The environmentalist, however, says there are many examples of rules that are "initially stayed only to be upheld later by courts following more searching review of the merits."
For example, the source points to EPA's ozone transport nitrogen oxide state implementation plan call rule, issued in 1998, which the D.C. Circuit ultimately upheld despite issuing an initial stay and remand of minor issues related to the rule. That rule required 22 eastern states and the District of Columbia to submit state implementation plans (SIPs) that set statewide ozone season NOx budgets which would reduce emissions of NOx.
Pending Lawsuits
Meanwhile, litigation over the CWA and ESPS continues while the agency is blocked from further implementing either rule. The 6th Circuit late least year opted to halt EPA's CWA jurisdiction rulemaking pending its looming decision on whether authority to review the rule lies with the district courts or circuit courts, in Murray Energy Corporation, et al., v. EPA, et al., which consolidates a host of appellate court suits filed over the the rule.
The CWA rule may not be as "vulnerable" as the ESPS when judges review the regulation on its merits, including a potential Supreme court review, says one legal source. This is because the ESPS represents what the source calls an "incredible stretch of any fair reading" of section 111 of the Clean Air Act to justify the rule.
The CWA rule, however, aims to define "waters of the United States," which is not clearly defined in the water law, the source says, so "I think EPA has a great deal of leeway and courts are more likely to defer."
The high court ESPS stay will remain in effect until the D.C. Circuit issues its eventual ruling in litigation over the rule, as well as the disposition of any petitions for the high court to review that ruling. The order says if such petitions are denied -- a step seen as extremely unlikely given the stay -- the order will lose effect.
However, when the Supreme Court ultimately does review the D.C. Circuit's ruling, the recent order staying the ESPS will remain in effect until the justices rule on the merits of the challenges.
Court Vacancy
Complicating the issue is uncertainty about the Supreme Court opening created by Scalia's Feb. 13 death, which means a rare opening on the narrowly divided court, potentially shifting its ideological balance for decades to come, including in some pending environmental cases. Observers have said that the opening increases the prospect that the ESPS will eventually be upheld in spite of the stay, given that Scalia was among the 5-4 majority that backed the stay and was widely expected to support a decision on the merits to scrap the rule.
The legal source says that the stay is so unprecedented that it seemed likely that the five justices would have concluded that the ESPS rule exceeded the Clean Air Act. "But with Justice Scalia now gone, all bets are off and I think it is really going to come down to who gets elected President in November," the source adds.
Moreover, there could be a stalemate between President Obama, who is vowing to offer a nominee to replace Scalia, and Senate Majority Leader Mitch McConnell (R-KY), who has promised to block any nominee Obama offers to allow the next president to name Scalia's replacement, leaving the court with eight justices.
If the court divides its rulings on the CWA rule or ESPS by 4-4 between its four conservative members and four liberal justices, lower court decisions on the regulations would likely stand. As a result, if EPA wins its ESPS case at the D.C. Circuit then the high court splits 4-4 on the rule, it could take effect.
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Advocates Say EPA Nutrients Response Falls Short Of Appellate Mandate
Feb 22, 2016 | Inside EPA
By David LaRoss
Environmentalists are asking a federal district court to force EPA to craft a substantive response to their petition for the agency to impose strict federal Clean Water Act (CWA) nutrient standards on Mississippi River Basin states, arguing that its reasons for refusing are not "grounded in the statute" as an appeals court has required.
Plaintiffs in Gulf Restoration Network (GRN), et al. v. EPA are asking the U.S. District Court for the Eastern District of Louisiana to reject what they describe as the agency's attempt to "backfill" a proper justification for not crafting a substantive response. The petition denial, sent in a letter to environmentalists, does not cite specific CWA priorities or language to justify refusing the advocates' request for the nutrient limits.
The environmentalists say this falls short of a mandate by the U.S. Court of Appeals for the 5th Circuit that the agency's justification for denying the petition be "grounded in" the CWA.
GRN and its allies in a Feb. 15 brief say, "In the end, none of EPA's strained post hoc rationalizations can make up for the fact that EPA's Denial Letter was simply not 'grounded in the statute.' EPA provided no explanation in the Denial Letter -- and certainly not the 'explicit' explanation mandated by Massachusetts and the Court of Appeals -- of why it could not make a necessity determination pursuant to the Act's water quality standard-setting provisions."
The advocates are seeking to counter arguments by the Department of Justice (DOJ) on EPA's behalf and the National Association of Clean Water Agencies (NACWA), which represents many wastewater plants subject to CWA nutrient controls, that the court should defer to EPA's petition denial.
GRN and other environmentalist groups are asking the court to require a substantive response to their joint 2008 petition seeking a scientific determination on whether strict CWA standards for nutrients are necessary to protect water quality in the basin states. Such a finding would trigger a mandatory duty under the water law for the agency to craft those standards itself if state governments did not move quickly to tighten their nutrient regulations.
EPA, in a 2012 response to the joint petition, declined to formally investigate whether such action is needed. Instead, it said in its response to the advocates that even if water rules in the Mississippi basin are inadequate, federal requirements would be an inefficient way to fix the problem, as they would be burdensome to implement and lead to years of litigation. Advocates sued and the case ended up in the 5th Circuit.
The 5th Circuit's 2015 decision said that EPA may in some cases deny a petition for rulemaking without a substantive response, but must present reasons for doing so that are grounded in the governing statute. However, it did not reach a decision on whether the agency satisfied that test, instead ordering the district court to make that finding.
'Regulatory Priorities'
DOJ and NACWA have since argued that the agency's reasons for rejecting the petition satisfy the 5th Circuit's mandate, because past court rulings have said "an agency may take into account its available resources and competing regulatory priorities in deciding to delay or defer regulatory action."
The advocates counter that no matter how much deference the court shows, it should still force a substantive petition response because EPA "clearly" failed to apply statutory factors in its denial such as current water conditions and the success or failure of cooperative federal-state efforts to reduce nutrient pollution. The group cites the Supreme Court's landmark 2007 decision Massachusetts v. EPA, where it forced the agency to re-examine its reasons for rejecting petitions to regulate greenhouse gases on the basis that the agency had not grounded its rationale in the Clean Air Act.
"EPA's argument is essentially that, since the Denial Letter contains discussion of the same overall subject matter as the Act, it is thereby grounded in the text of the statute. This approach is wholly inconsistent with the outcome of Massachusetts. In that case as well, EPA provided a response that addressed the general subject matter of greenhouse gases, and touched loosely on the substantive technical question of climate change uncertainty. That was not enough," the group's brief says.
Agencies can only put off responding to petitions because of resource concerns, rather than using those concerns to justify an outright denial, the groups say. "Because EPA has now 'responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute,'" the advocates say, quoting Massachusetts.
They also say DOJ has misstated the 5th Circuit's opinion when it argued that it "cannot be right" for courts to hold a refusal to craft a substantive response to the same standards as would apply to a full petition response.
"[T]he Court of Appeals made it very clear that the Act's statutory and regulatory provisions governing water quality, such as those it cited, define the types of factors that must be considered either in a necessity determination, or in a decision to decline to make such a determination. Consideration of these factors is mandatory ('must"'; and applies regardless of the applicable standard of review, and regardless of EPA's oft-stated preference, reiterated on remand, for focusing on "resource constraints and competing regulatory considerations" rather than the mandate of Congress," the advocates say.
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Researchers Found Portland, Ore., Hot Spots by Accident
Feb 22, 2016 | E&E Greenwire
Curious about whether trees soak up air pollution, two Forest Service researchers set out in 2012 to monitor an entire city's pollution levels, and while they collected data seeking to answer their original question, the two also stumbled upon something totally unrelated.
Through their research, they were able to link two Portland, Ore., glass manufacturers to cancer-causing cadmium concentrations throughout the city, findings that have shaken the local regulatory environment and research methods.
The pair arrived at the findings through research on a moss (Orthotrichum lyellii) with star-shaped leaves often found on trees. The moss absorbs particles from the air, storing it within its cells and its surface. Furthermore, it doesn't have roots, meaning the particles didn't come from the ground.
The researchers sent collected moss samples to a lab, which broke them down with acid and tested for pollutants and heavy metals.
The researchers saw cadmium levels in the moss near facilities in northwest and north Portland that use the material. But they also found it in samples from the southeastern part of the city. They alerted the Department of Environmental Quality about the issue in May 2015.
Since their findings were made public Feb. 3, state regulators have taken heat for knowing about the scientists' findings for eight months but not acting on them (Greenwire, Feb. 15).
Officials have known for more than a decade that Portland had high levels of cadmium but were never able to pinpoint where it was coming from.
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N.C.'s Blueprint for Clean Energy in the Southeast
Feb 22, 2016 | E&E Energywire
By Kristi E. Swartz
Cost will largely determine the makeup of the Southeast's energy landscape, but industry leaders gathered at a clean-tech conference here last week said policy and consumer demand will play large roles, as well.
North Carolina is poised to be a model on how all three drivers shape where the state gets its electricity. The state Legislature's Joint Legislative Committee on Energy Policy may set up a process that will bring utilities, renewable energy companies and other stakeholders together to create a new electricity blueprint for the Tar Heel State, a Duke Energy executive said.
The idea stemmed partly from a series of individual electric-utility policy changes filed in the Legislature last year. The bills ranged from letting customers enter into long-term contracts to finance rooftop solar panels to scrapping the state's renewable energy mandate.
The proposals came from individual lawmakers or political groups and not from the utility industry or environmental advocates. In fact, a Duke Energy spokesman said at the time that North Carolina's renewable portfolio standard -- the only one in the Southeast -- was formed with a broad range of stakeholders at the table, and any new policies should be made the same way.
Chief among any future discussions will be whether nuclear energy should be included in the state's renewable energy policy, as Secretary of Environmental Quality Donald van der Vaart has suggested. Members of a panel on clean energy policies last Friday said North Carolina's RPS is not a place to entertain a policy to encourage nuclear reactors.
"If someone wants to incentivize nuclear, they need to bring a discussion that says just that," said Ivan Urlaub, executive director of the North Carolina Sustainable Energy Association (NCSEA).
Jim Kerr, a former North Carolina utility regulator who now is the general counsel for Southern Co., warned against tossing around ideas to boost nuclear as an easy way to have clean energy. Southern is building two reactors in Georgia. Federal regulatory changes and vendor problems have led to a three-year delay and significant cost increases.
Southern was able to get Wall Street's endorsement to build because its Georgia Power subsidiary is collecting financing costs from customers as the reactors are being built, Kerr pointed out. And building the reactors is complicated, he said.
"So don't flippantly say, 'We're going to deal with climate through nuclear,'" Kerr said. "It's not easy, so don't flippantly say what's what we'll do, because we have thousands of people who get up every day outside of Augusta [in Georgia] and work their tails off."
The RPS did help drive North Carolina's solar market, which went from 7 megawatts of installed solar in 2005 to 1.5 gigawatts last year. Perhaps more significant is that it took 10 years to get to 1 GW of installed solar in 2015 but just four additional months to increase to 1.5 GW.
Brian O'Hara, an executive at Strata Solar, said policy helped drive those changes, but the growth of wind and solar is all about market economics.
"We're headed toward renewables because it makes more economic sense," he said. "We have this inevitable shift toward renewables, and the ones that get the policy right, those are going to be the ones who are going to benefit most."
Bottom line driving solar
First Solar Inc. CEO Jim Hughes said he considers the Southeast as having equal business opportunities to those in the western United States and Texas now. Speaking to a packed room last Friday morning, Hughes said the Southeast got to this point because of a pivotal moment in 2013.
This was when the city of Austin put out bids for a solar project. The prices came in astoundingly cheap, around 5 cents a kilowatt-hour, Hughes said.
This means Austin got a great deal on a solar project, he said. For the rest of the solar industry and the Southeast, there was a realization that utility-scale solar projects could be built cheaply.
"There's been no dramatic individual single policy mandate," said Hughes, whose company is an industry leader. "Essentially, what's happened is everybody woke up and said, 'If I could have solar for 4.5 cents or 5 cents a kWh, I'll take it.'"
The deals stop there, however, he said. Hughes is not a booster of rooftop solar solely because it doesn't make economic sense. Rooftop solar needs to work without the benefit of retail net metering, and getting the costs to that point is very challenging, he said.
"It's my own personal skepticism; the numbers don't work," he said.
Urlaub at NCSEA cautioned against using one single policy, especially for something like solar, and thinking that's going to make all the difference. Creating a free market for solar where consumers can enter into long-term financing agreements, or allowing them to sell back excess solar power at a premium, won't do it alone.
"Third-party sales is not a panacea; neither is net metering," he said. "Don't pick a winner in a single policy and think it's going to change the day."
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