Preview Newsletter
ACC AM Feb 24
-
Power to Ban Asbestos Is Activist Litmus Test for New 'TSCA'
Feb 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Legislation to amend the Toxic Substances Control Act must ensure that the Environmental Protection Agency can ban asbestos, the president of a public health advocacy organization said Feb. 23. “Why would you ever pass a bill that doesn't ban asbestos?” Linda Reinstein, president of the Asbestos Disease Awareness Organization, told more... -
US EPA Extends Comment Period For Data On Chlorinated Paraffins
Feb 23, 2016 | Chemical Watch
The US EPA has extended the comment period for its request for new information on chlorinated paraffins by 30 days to 23 March. It will use the data to to inform its risk assessments on new chemical pre-manufacturing notices (PMNs) submitted under the Toxic Substances Control Act. -
EPA Faces Push To Broadly Apply Stricter PFOA Drinking Water Advisory
Feb 23, 2016 | InsideEPA
By Suzanne Yohannan
EPA is facing a push to immediately disclose and address elevated levels of perfluorooctanoic acid (PFOA) in affected communities across the country, following the agency's recent decision to tighten its unenforceable health advisory level that EPA is using for drinking water contaminated with PFOA in a New York community. -
FDA Comment Extended on Styrene, Other Chemicals
Feb 24, 2016 | BNA Daily Environment Report
Parties wanting to weigh in on whether or not the Food and Drug Administration should revoke its approval to use styrene and six other chemicals as food additives have 60 more days to comment, according to an FDA notice published Feb. 23 (81 Fed. Reg. 8867). The notice extends from March 4 to May 3 the comment period on... -
Cybersecurity Is Risk Management Issue, Energy Industry Told
Feb 24, 2016 | BNA Daily Environment Report
By Nushin Huq
Cybersecurity should involve a company's managers and board of directors, as it is a risk management matter rather than an information technology issue, speakers told energy conference attendees in Houston. For the oil and gas industry, the biggest cybersecurity issue is the theft of company data, said Robert Wallace... -
Environmentalists Call On Manufacturers To Boost E-Recycling Efforts
Feb 23, 2016 | InsideEPA
Environmentalists are criticizing electronics manufacturers for not doing more to support responsible recycling of their products after Best Buy, the leading industry electronics recycler, announced changes to its recycling program that advocates say will weaken it. Earlier this month, Best Buy said it will drop the requirement... -
Exxon Continues to Resist Chemical Board Info Request
Feb 24, 2016 | BNA Daily Environment Report
By Stephen Lee
Exxon Mobil Corp. is continuing to resist the Chemical Safety and Hazard Investigation Board's subpoenas for information connected to a 2015 blast at the company's facility in Torrance, Calif., the CSB said Feb. 23. Exxon Mobil's continued recalcitrance, even though the CSB has the backing of the Department of Justice... -
PHMSA Faces Lawsuit Over Michigan Pipeline Impacts
Feb 24, 2016 | BNA Daily Environment Report
By Bebe Raupe
If the environmental impacts of oil pipelines traversing Michigan aren't disclosed, the National Wildlife Federation said it will sue the agency responsible for authorizing them. In a notice of intent to sue letter dated Feb. 22, the federation said the Pipeline and Hazardous Materials Safety Administration has no authority to authorize oil transport through... -
Foxx Appoints New PHMSA Deputy Administrator
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
Transportation Secretary Anthony Foxx announced the appointment Feb. 22 of John Drake as the new deputy administrator for the Pipeline and Hazardous Materials Safety Administration, an agency spokeswoman told Bloomberg BNA Feb. 23 in an e-mail. Drake most recently served as deputy assistant... -
SAFE PIPES Act Would Cost $50 Million from 2017-2021: CBO
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
The Senate pipeline safety reauthorization bill would cost $50 million over the course of five years, the Congressional Budget Office said in its cost estimate released today. The SAFE PIPES Act (S. 2276) would require $525 million in appropriations from 2017 to 2021 for the Pipeline and Hazardous Materials Safety Administration's... -
Coast Guard Withdraws Fracking Wastewater-by-Barge Plan
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
The Coast Guard formally rescinded in a Federal Register notice published Feb. 23 its 2013 policy proposal delineating chemical analyses, radiation surveys and other protections needed to move fracking wastewater in bulk by barge. Bloomberg BNA reported Feb. 16 that the policy would be rescinded. -
(ACC Mentioned) Clean Power Plan Lawsuit Update: U.S. Chamber, 27 States, 150 Organizations File Opening Brief Against EPA Power Plant Rule
Feb 23, 2016 | Oil & Gas 360
The U.S. Chamber of Commerce today, along with a coalition including officials from 27 states and more than 150 other organizations representing a wide range of the American economy, presented opening arguments in the D.C. Circuit against the EPA’s power plant rule associated with the Clean Power Plan. -
EPA Extends Deadline For 'Minor' NSR Drilling Rule
Feb 23, 2016 | InsideEPA
EPA is extending from March 2 to Oct. 3 the deadline for oil and gas drilling sites on tribal land that are classed as “true minor sources” of air pollution to comply with EPA's Clean Air Act new source review (NSR) permit rule for the sites, pending release of an upcoming federal plan that would make individual NSR permits unnecessary. -
Unlikely Battle Over Fracking Intensifies in Florida
Feb 23, 2016 | The New York Times
By Lizette Alvarez
With geology akin to a wet sponge and fragile underground aquifers that supply almost all its drinking water, Florida has never been considered part of the agitated battle over fracking as a technology for extracting oil and gas. But that began to change two years ago when a Texas-based oil and gas company was found to have been using... -
EPA Draft Says Oil & Gas Methane Emissions Are 27 Percent Higher than Earlier Estimates
Feb 23, 2016 | Environmental Defense Fund
By David Lyon
Methane emissions from the oil and gas industry are significantly higher than previous official estimates, according to draft revisions of the U.S. greenhouse gas emissions inventory released Monday by the Environmental Protection Agency. At 9.3 million metric tons, revised estimates of 2013 emissions are 27% percent higher... -
Congress Seeks To Influence Litigation
Feb 23, 2016 | E&E News PM
By Amanda Reilly
Running out of options on Capitol Hill, Republican lawmakers today expressed hope of influencing court action on U.S. EPA's Clean Power Plan. More than 200 members joined a friend-of-the-court brief asking the U.S. Court of Appeals for the District of Columbia Circuit to eliminate the program for reducing carbon dioxide emissions from power plants. -
Petitioners Seek Slower Track in Power Plan Lawsuits
Feb 24, 2016 | BNA Daily Environment Report
By Andrew Childers
While the Environmental Protection Agency's Clean Power Plan has already been stayed by the U.S. Supreme Court and appellate judges have scheduled an expedited briefing schedule, petitioners are seeking a slower track for lawsuits challenging the carbon dioxide standards for new and modified power plants... -
Energy Efficiency Gets Key Role in Obama's Climate Plan
Feb 24, 2016 | BNA Daily Environment Report
By Rebecca Kern
While energy-efficiency standards have been around for decades, they have just recently started gaining a higher profile as a solution to reduce carbon emissions under the Obama administration's climate action plan. Energy-efficiency standards set requirements to reduce the amount of energy that appliances and equipment use... -
Critics Offer Procedural Claims If ESPS Overcomes 'Core' Legal Challenges
Feb 23, 2016 | InsideEPA
By Lee Logan
State and industry opponents are offering a host of “procedural” arguments that they hope will help kill EPA's greenhouse gas standards for existing power plants in the event the rule overcomes their “core” legal claims, including charges that the final rule violates administrative law because it is “radically” different than the proposed... -
Maryland Sets Bolder Target For Cutting Greenhouse Gas Emissions
Feb 23, 2016 | The Washington Post
By Ovetta Wiggins
A bill to accelerate Maryland’s efforts to reduce greenhouse gas emissions sailed through the state Senate on Tuesday and was hailed by environmentalists as one of the nation’s strongest state requirements for tackling carbon pollution. The Senate voted 38 to 8 to cut greenhouse gas emissions to 40 percent below 2006 levels by 2030. -
States Ask Supreme Court To Block Mercury Rule, Citing Stay Of Carbon Rule
Feb 23, 2016 | PoliticoPro
By Alex Guillén
The Supreme Court said last summer that EPA should have considered compliance costs when it first decided to regulate mercury from power plants. The challengers argue that that ruling could be “thwarted” if the rule is allowed to remain in effect while EPA fixes the issue, as the D.C. Circuit Court of Appeals has allowed. -
200 Lawmakers Say EPA Carbon Plan Oversteps Authority
Feb 24, 2016 | BNA Daily Environment Report
By Andrew Childers
Congress never authorized the Environmental Protection Agency to transform the U.S. power sector in the way envisioned by the Clean Power Plan, 34 senators and 171 representatives said in an amicus brief filed Feb. 23 (West Virginia v. EPA, D.C. Cir., No. 15-1363, amicus briefs filed 2/23/16). -
20 States Ask Justices To Halt Embattled Mercury Rule
Feb 24, 2016 | E&E Daily News
By Robin Bravender
On the heels of the Supreme Court freezing one major U.S. EPA rule curbing power plant emissions, state challengers are pushing the justices to block another. A coalition of 20 states yesterday asked Supreme Court Chief Justice John Roberts to stay an Obama administration rule cutting power plants' mercury emissions. -
Lawmakers: Congress Has Not Given EPA Power To Enact Climate Rule
Feb 23, 2016 | The Hill - E2 Wire
By Devin Henry
Lawmakers opposed to President Obama’s climate rule for power plants told a federal court Tuesday that Congress has not given the Environmental Protection Agency (EPA) the authority to institute the rule. In an amicus brief supporting a lawsuit against the power plant rule, more than 200 lawmakers contended that the EPA is overstepping... -
States Ask Supreme Court To Block EPA Air Pollution Rule
Feb 23, 2016 | The Hill - E2 Wire
By Timothy Cama
Twenty conservative states want the Supreme Court to block the Obama administration from enforcing an air pollution rule for power plants. Emboldened by the high court’s decision earlier this month to block another contentious Environmental Protection Agency (EPA) regulation, the states, led by Michigan, asked the Supreme Court... -
Manufacturing Groups Dissent on EPA Ozone Regulation
Feb 24, 2016 | BNA Daily Environment Report
By William H. Carlile
Groups representing national and Arizona manufacturing interests laid out Feb. 23 the negative economic impacts they say the Environmental Protection Agency will inflict upon Western states as a result of its new federal ozone standards of 70 parts per billion. Representatives of the National Association ... -
Science Panel Chairman Questions EPA Air Official's Travel
Feb 24, 2016 | BNA Daily Environment Report
By Anthony Adragna
Rep. Lamar Smith (R-Texas), chairman of the House Science, Space and Technology Committee, questioned Feb. 23 whether weekly airplane commuting by the Environmental Protection Agency's top air official, Janet McCabe, is consistent with the administration's goals of reducing carbon pollution.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
Full Text of Stories Below
-
Power to Ban Asbestos Is Activist Litmus Test for New 'TSCA'
Feb 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Legislation to amend the Toxic Substances Control Act must ensure that the Environmental Protection Agency can ban asbestos, the president of a public health advocacy organization said Feb. 23.
“Why would you ever pass a bill that doesn't ban asbestos?” Linda Reinstein, president of the Asbestos Disease Awareness Organization, told more than 50 Senate staffers representing 30 senatorial offices. Reinstein spoke during the organization's ninth congressional staff briefing.
The inability of the EPA to ban asbestos has become for many people, including legislators, a symbol of the failure of TSCA, which President Gerald Ford (R) signed into law in 1976.
The agency sought to phase in a ban on the manufacture and nearly all uses of asbestos through a 1989 regulation it issued (54 Fed. Reg. 29,460).
However, the U.S. Court of Appeals, Fifth Circuit overturned that rule in 1991 on two main points.
The agency had not proven its regulation would be—as TSCA requires—the least burdensome option, nor had the agency proven that the rule was promulgated on the basis of substantial evidence, it said (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
Ongoing Deaths, Ongoing Imports
Twenty-five years after that decision, 40 U.S. residents die each day from asbestos-related diseases including lung cancer and mesothelioma, Reinstein said. The inability to regulate asbestos slowed EPA efforts to control other chemicals because of the precedent set in the Corrosion Proof Fittings case.
Asbestos consumption in the U.S. was estimated, based on imports, to be at least 400 metric tons (881,849 pounds) in 2014, according to a Mineral Commodity Summary the U.S. Geological Survey published in January 2015.
“The chloralkali industry accounted for an estimated 88 percent of U.S. consumption. The remainder was used in coatings and compounds, plastics, roofing products, and unknown applications,” USGS said.
Julia Gundlach, who was diagnosed 10 years ago with an abdominal form of cancer called peritoneal mesothelioma, spoke at the Asbestos Disease Awareness Organization's briefing and said more than 50 other countries have banned asbestos.
Canada and the United States are among the few Western countries that still allow asbestos to be imported, she said.
Both Bills Allow, But Don't Require, Controls
Neither the House's TSCA Modernization Act (H.R. 2576) nor the Senate's Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. Admt. 2932 to H.R. 2576), require the EPA to review or regulate asbestos, although both give the agency discretion to do so, Reinstein told Bloomberg BNA. That is a concern for her organization.
“If it's not mandated, it's discretionary and there's no guarantee,” Reinstein said.
An aide to Sen. Barbara Boxer (D-Calif.) discussed with Bloomberg BNA language the aide said Boxer added to the Senate bill to increase the chance that EPA would review and, as necessary, regulate asbestos quickly under an amended TSCA.
As the EPA would create its first list of chemicals slated for assessment and possible regulation, the Senate bill would require the agency to designate at least 10 high- and 10 low-priority substances.
Of the 10 high-priority substances, at least five chemicals would be drawn from the agency's October 2014 “TSCA Work Plan” list, which includes asbestos.
The expectation is that asbestos would be a high-priority chemical, Boxer's aide said.
The test of whether an amended TSCA will allow the EPA to manage chemicals as needed would come later in the process, Boxer's aide said.
Judicial Standard Remains the Same
EPA regulations are typically litigated, the aide said. The key test of a new “TSCA” would be whether the EPA would win when an asbestos ban, or other regulatory action, was challenged, the aide said.
Both the House and Senate bills amending TSCA would remove the requirement that EPA's regulation restricting or banning chemicals be the least burdensome option.
Neither the House nor Senate bill would alter the law's judicial standard, the aide said.
The judicial standard for review used in most environmental statutes is the Administrative Procedures Act standard of “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
TSCA, however, uses a standard that requires the agency to achieve a more stringent judicial standard by requiring it to have “substantial evidence” supporting its chemical regulations.
The House and Senate continue to discuss merging their respective TSCA reform bills, and the Asbestos Disease Awareness Organization is meeting with different offices to discuss its concerns with TSCA and other legislation that addresses asbestos, Reinstein said during her presentation.
Status of Effort to Merge Bills
Separately, Sen. James Inhofe (R-Oka.) told Bloomberg BNA that while discussions continue, he is frustrated at the pace of House efforts.
“There has just never been the passion in the House for the chemical bill that there has been in the Senate, and I don't understand why,” Inhofe said.
Overhauling TSCA, is “a big deal,” Inhofe said.
Ironically, few ordinary Americans understand that, he said.
A former senior scientist at the EPA recently voiced a similar view on the value of and lack of knowledge about TSCA.
“The federal law governing chemicals used in commerce in the United States affects every person and business, but few are aware of its importance to their lives or that it is outdated and in serious need of modernization,” wrote William Farland in a Society of Toxicology blog “TSCA: A Step Closer to Reform.” Farland has served on an SOT task force advising legislators on scientific questions involved with TSCA reform.
Sen. Tom Udall (D-N.M.) was more upbeat as he described the state of House and Senate TSCA-reform negotiations to reporters Feb. 23.
A key House aide was unavoidably absent, but has now returned, Udall said.
“We're trying to get the staff working with each other. I've been on the phone a lot with Democratic and Republican members. The whole objective here is to get people working on the changes that were made on both sides—not necessarily start from one perspective or the other,” Udall said.
Hope and Confidence
House and Senate legislators are still working to complete a TSCA reform bill before summer, he said.
The Supreme Court vacancy, Flint water, and Zika virus crises are taking time, Udall acknowledged. “There's always a lot to do around here, but from the leadership down people want this done on both sides. So I think we're going to get it done.”
The Senate bill would revise many more aspects of TSCA than would the House bill. Consequently, Udall said, House members need time to get familiar with new issues, he said.
No decision has been made as to whether the two chambers will eventually meet in a formal conference, Udall said. “First let's try to work out the differences, then we'll see what the best way to do it is.”
-
US EPA Extends Comment Period For Data On Chlorinated Paraffins
Feb 23, 2016 | Chemical Watch
The US EPA has extended the comment period for its request for new information on chlorinated paraffins by 30 days to 23 March.
It will use the data to to inform its risk assessments on new chemical pre-manufacturing notices (PMNs) submitted under the Toxic Substances Control Act.
-
EPA Faces Push To Broadly Apply Stricter PFOA Drinking Water Advisory
Feb 23, 2016 | InsideEPA
By Suzanne Yohannan
EPA is facing a push to immediately disclose and address elevated levels of perfluorooctanoic acid (PFOA) in affected communities across the country, following the agency's recent decision to tighten its unenforceable health advisory level that EPA is using for drinking water contaminated with PFOA in a New York community.
The call responds to EPA's decision in a Jan. 28 statement to advise residents of the Hoosick Falls, NY, community not to consume drinking water from private wells with levels of the perfluorinated chemical (PFC) PFOA above 100 parts per trillion (ppt), or 0.1 parts per billion (ppb). The agency said that at the New York site it is not waiting for finalization of its health advisory for chronic exposure of PFOA in drinking water before applying the 0.1 ppb value -- which is a more-stringent level than its existing short-term exposure advisory level of 0.4 ppb for the chemical.
An EPA Region 2 official has said the region, which includes New York, is in the early stages of an effort to identify other locations with similar drinking water contamination, and will likely apply the 0.1 ppb value at those sites.
New York officials have also called on EPA to nationally address PFOA contamination by lowering its health advisory for the chemical and expeditiously adopting an enforceable drinking water standard for it.
In response to the various EPA actions, Robert Bilott -- an attorney with the law firm Taft Stettinius & Hollister -- is asking EPA in a Feb. 16 letter to assess communities across the country with elevated levels of PFOA. Bilott has represented thousands of West Virginia and Ohio plaintiffs potentially exposed to PFCs in their drinking water from a West Virginia plant owned by DuPont.
Bilott points to EPA's Jan. 28 statement indicating the agency is continuing to work on a lifetime health advisory level for PFOA but is also now recommending applying a 0.1 ppb safety level for Hoosick Falls.
"Thus, at a minimum, it appears that EPA has revised its guideline for short-term, temporary exposures to PFOA in drinking water from 0.4 ppb to 0.1 ppb," Bilott says in the letter, addressed to EPA Administrator Gina McCarthy.
"What is not clear, however, is the extent to which members of the public exposed to levels of PFOA exceeding 0.1 ppb in different areas across the country (particularly those with long-term, 'lifetime' exposures) have been informed of those exposures or have seen the EPA's recommendation to use bottled water or some other alternative water source in those situations," Bilott writes.
Toxicity Data
The 0.1 ppb level stems from an EPA PFOA toxicity report that underwent external peer review in 2014 and identified a toxicity value for the chemical that would result in a lifetime health advisory of 0.1 ppb, an EPA spokeswoman told Inside EPA in a Jan. 29 statement. She stressed that EPA has not yet finalized the figure as its lifetime health advisory for the chemical but decided to "share the best available science to protect public health" in the New York case and is using the figure "out of an abundance of caution."
Bilott points out his firm has been pressing EPA for nearly 15 years to address what he says is a substantial and imminent threat to human health and the environment posed by PFOA in drinking water supplies.
In the letter, he points to a Nov. 9 letter to EPA where he highlighted contaminant data stemming from EPA's third Unregulated Contaminant Monitoring Rule (UCMR) that shows the presence of PFOA exceeding the UCMR reporting level in a number of public water supplies. Under the third UCMR, EPA required public water systems to report from 2013 to 2015 on PFOA occurrences, among 29 other emerging contaminants, in drinking water above the minimum reporting level (MRL) of 0.02 micrograms/liter, which in this case is equivalent to 0.02 ppb.
The data indicates a number of locations with levels of PFOA exceeding 0.05 ppb -- a level at which an independent C-8 scientific advisory panel found probable links between PFOA, also known as C-8, and six adverse health impacts including kidney and testicular cancer as well as other conditions.
The law firm took EPA's raw data from the UCMR on PFOA to create a list of public drinking water supplies across the country that have reported levels of PFOA in their water during the 2013-2015 collection period. The list is attached to his letter, and shows some instances where the levels are between 0.4 ppb and 0.1 ppb -- the new figure EPA is now pointing to as a health advisory level for the New York site.
"As noted in our prior correspondence, we request that EPA take those steps necessary to immediately and properly disclose, investigate, and address elevated levels of PFOA in impacted communities, whether reflected in elevated drinking water exposures or elevated blood levels," Bilott says in the Feb. 16 letter.
An EPA spokesman did not respond by press time to questions about Bilott's request.
Consent Order
Bilott also contends EPA should revise a March 2009 consent order with DuPont to incorporate the new 0.1 ppb guideline for PFOA in drinking water, given there have been recent detections of PFOA exceeding that level in at least one community -- Vienna, WV -- affected by the order.
The 2009 consent order between EPA and DuPont, aimed at addressing drinking water contamination from DuPont's Washington Works plant in West Virginia, includes EPA's provisional health advisory of 0.4 ppb, requiring DuPont to provide clean water to the community if it is exceeded. Bilott, on behalf of thousands of citizens living around the Washington Works plant, settled a class-action lawsuit against DuPont over PFOA exposures stemming from the plant, and is now prosecuting personal-injury cases filed by members of the class against the company, according to his law firm.
-
FDA Comment Extended on Styrene, Other Chemicals
Feb 24, 2016 | BNA Daily Environment Report
Parties wanting to weigh in on whether or not the Food and Drug Administration should revoke its approval to use styrene and six other chemicals as food additives have 60 more days to comment, according to an FDA notice published Feb. 23 (81 Fed. Reg. 8867). The notice extends from March 4 to May 3 the comment period on a nongovernmental organization coalition's petition to bar approval of seven food additives (03 DEN A-8, 1/6/16)(08 DEN B-18, 1/13/16)(19 DEN A-14, 1/29/16). The additives are: benzophenone (also known as diphenyl ketone) (CAS No. 119-61-9); ethyl acrylate (CAS No. 140-88-5); eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol) (CAS No. 93-15-2); myrcene (also known as 7-methyl-3-methylene-1,6-octadiene) (CAS No. 123-35-3); pulegone (also known as p-menth-4(8)-en-3-one) (CAS No. 89-82-7); pyridine (CAS No. 110-86-1); and styrene (CAS No. 100-42-5). Comments, marked Docket No. FDA-2015-F-4317, should be submitted via http://www.regulations.gov. FDA's notice is available at https://federalregister.gov/a/2016-03708.
-
Cybersecurity Is Risk Management Issue, Energy Industry Told
Feb 24, 2016 | BNA Daily Environment Report
By Nushin Huq
Cybersecurity should involve a company's managers and board of directors, as it is a risk management matter rather than an information technology issue, speakers told energy conference attendees in Houston.
For the oil and gas industry, the biggest cybersecurity issue is the theft of company data, said Robert Wallace, director of security and investigations at Mandiant Consulting. It might be a result of corporate espionage or be politically motivated, he said Feb. 19.
These hackers are well-organized, professional and often well-funded. They are also patient. If a company is targeted, the hackers will often keep coming back until their mission is completed, even if they are detected and kicked out, Wallace said. A company might have an intruder in its system for months without detecting it. The entire time, valuable information is being stolen.
Mandiant, bought by FireEye in 2014, handled about 260 cases that year, Wallace said. In 2015 the company handled about 500 cases.
Wallace was on a panel at the Center for American and International Law's 67th annual Oil & Gas Law Conference.
Breach Types
According to conference panelists, experts categorize cybersecurity breaches into four groups. In addition to company-data theft, there are nuisance hacks; theft of consumer data such as credit card numbers; and “hactivism,” aimed at shaming companies and individuals.
Despite such distinctions, “A lot of security breaches now are an amalgamation of the different groups,” Wallace said.
The majority of intrusions are detected by third parties; for example, a law enforcement agency might inform a company that its network was breached. Only 30 percent of intrusions are discovered internally, panelists said. The average number of days an intruder is in a company network before it is discovered is 205 days, according to research by Mandiant.
An intruder can get into a system within hours or days, said Randy Sabett, vice chairman of privacy and data protection at Cooley LLP. “They can even get in within minutes.”
Misconceptions
There is still a misconception that most hackers are teenagers working out of their parents' basement, said Bart Huffman, Locke Lord LLP. Today's hackers are often businesses or nations, he said. Experts have found that attacks are usually conducted during business hours rather than on weekends or holidays.
Another misconception is that once malware is removed, the threat is over. “Catch a piece of malware,” Wallace said. “High five, mission complete.”
Malware is just a way to get into the system, Wallace explained. Even when the malware is removed, the people behind it are already in the system, possibly stealing data or lying dormant until later.
Legal Considerations
There are many legal issues a company must consider, both pre- and post-breach, said Jason Chipman, counsel at Wilmer Cutler Pickering Hale and Dorr LLP.
“This isn't an IT person's problem, it's a management risk problem,” he said.
Companies need an effective plan to balance risk. While it might be nice to allocate $1 billion to protect a network, Chipman said, that isn't practical.
Energy companies should consider setting up privileged relationships with cybersecurity companies, Chipman said, as the cybersecurity companies will have access to confidential information.
-
Environmentalists Call On Manufacturers To Boost E-Recycling Efforts
Feb 23, 2016 | InsideEPA
Environmentalists are criticizing electronics manufacturers for not doing more to support responsible recycling of their products after Best Buy, the leading industry electronics recycler, announced changes to its recycling program that advocates say will weaken it.
Earlier this month, Best Buy said it will drop the requirement that the company's recyclers be certified to e-Stewards standards, and instead allow them to certify to either e-Stewards or Responsible Recycling (R2). Environmentalists generally back e-Stewards over R2 as the more stringent of the two voluntary industry standards for electronics recyclers.
In addition, Best Buy -- which operates the most comprehensive electronic electronics recycling (e-recycling) operation in the country -- announced it would now charge customers $25 for each TV and computer monitor they bring to their stores for recycling, rather than receiving the items for no fee. The charge means that Best Buy will no longer be able to accept TVs and monitors in two states -- Pennsylvania and Illinois -- because of state laws that bar collection fees on such programs.
The move signals "that the already stressed U.S. electronics collection infrastructure has gotten worse," Scott Cassel, chief executive officer of the Product Stewardship Institute (PSI), writes in a Feb. 4 blog post.
In a Feb. 1 post on Best Buy's website, Laura Bishop, the company's vice president of public affairs and sustainability, writes that the company does not currently "break even" on its recycling program, and that the new fees will help cover growing costs of managing TV and monitor disposal.
"E-waste volume is rising, commodity prices are falling and global outlets for recycled glass, a key component of TVs and monitors, have dramatically declined," she writes. She adds that more municipalities are cutting back on their recycling programs due to limited budgets, cutting consumer options further.
"While providing recycling solutions for our customers is a priority, Best Buy should not be the sole e-cycling provider in any given area, nor should we assume the entire costs," she says.
Environmental advocates have generally applauded Best Buy's program, with Cassel noting in his blog post that the company has borne greater than its share of recycling costs, consistently collecting much more material than is required under state take-back electronics laws.
Advocates' Proposals
But advocates say electronics manufacturers should step up to shoulder more recycling costs.
Barbara Kyle, national coordinator for the Electronics TakeBack Coalition (ETBC), writes in a Feb. 1 blog post that manufacturers, particularly television companies, should partner with Best Buy to cover some recycling costs and ensure responsible recycling takes place. "The TV companies, who are always challenged by finding collection sites, could take advantage of the chain's huge network of stores, which are very convenient collection points for most consumers," she writes. She suggests such a partnership should extend to other large chains, such as Walmart.
On the $25 charge for TV and monitor collections, Kyle says that ETBC recognizes the company is seeking to cover costs at a time when the TV recycling market is at a low point, with nearly no market for used cathode ray tube glass and a crash of the commodity market in 2015 for other materials from electronics such as plastic, steel and other metals. But she says she fears the charge will drive consumers to trash or dump their used electronics, rather than responsibly recycling them.
On Best Buy's decision to allegedly weaken its certification requirement, Kyle says adhering to the R2 standard is cheaper for recyclers as it is a less rigorous standard than e-Stewards. "So to save money, Best Buy may be working with vendors who are less diligent about where their stuff goes and how it's processed," she says.
According to a side-by-side comparison of the two standards, ETBC says R2, unlike e-Stewards, allows exports of e-waste to developing countries -- which environmentalists have documented often have lax labor and environmental standards and allow for unsound environmental recycling practices. Further, e-Stewards, which was developed by the environmental group Basel Action Network, bans incineration or landfilling of hazardous e-waste, while R2 discourages it but still allows it, the comparison says. It cites several other comparisons showing R2 with less stringent requirements than e-Stewards.
R2 is not as robust as e-Stewards, Kyle said in an interview, noting that because electronics recycling has little regulation, the voluntary standards are key.
State Laws
While 25 states have producer responsibility recycling laws that require manufacturers to take back and recycle used products, Kyle in the blog post points to gaps in the laws, such an annual collection goals that allow manufacturers to stop collecting once they hit that goal. "This makes it difficult for consumers who want to have ongoing sites where they can bring their old products," she writes.
Cassel says in his blog post that it is time to revisit the states' e-recycling laws "to ensure that all manufacturers are equally responsible for electronics recycling. PSI and our state and local government members understand the complexities and variations . . . in programs nationally, and are working to find fair solutions for all," he says.
But he says in the post, "Past voluntary and legislatively supported commitments made by manufacturers have eroded. They resist attempts to incorporate recycling costs into product price, and instead want to pass these costs on to someone else."
In response to questions on environmentalists' push to boost manufacturers' participation in e-recycling, an official with the Consumer Technology Association (CTA) says the industry is committed to recycling and reducing electronic waste, with EPA findings showing consumer electronics are the "fastest-declining portion of the U.S. municipal solid waste stream."
He says that for the past several years, CTA has tracked and supported manufacturer and retailers' e-recycling, with the latest statistics, from 2014, showing more than 660 million pounds of used electronics recycled that year. He says the vast majority of those electronics are TVs and monitors. He notes that the industry spends $100 million annually on recycling, and that it supports over 8,000 collection sites for consumers across the country.
-
Exxon Continues to Resist Chemical Board Info Request
Feb 24, 2016 | BNA Daily Environment Report
By Stephen Lee
Exxon Mobil Corp. is continuing to resist the Chemical Safety and Hazard Investigation Board's subpoenas for information connected to a 2015 blast at the company's facility in Torrance, Calif., the CSB said Feb. 23.
Exxon Mobil's continued recalcitrance, even though the CSB has the backing of the Department of Justice, signals the possibility of a protracted battle that could wind up in the courts. The company has insisted that CSB doesn't have jurisdiction to demand the information it seeks, which is connected with a near-miss at the Torrance refinery.
To date, Exxon Mobil has either ignored or given only partial responses to nearly half of the CSB's 148 subpoena requests. The requests concern a near-miss incident at the time of the explosion that could have released highly toxic hydrofluoric acid into the community(10 DEN A-17, 1/15/16).
The company's resistance “is of enormous concern to the entire board, and we are pursuing it vigorously,” Board Member Richard Engler said at a CSB business meeting.
CSB chairperson Vanessa Sutherland told Bloomberg BNA that the board doesn't have information about what Justice has asked Exxon Mobil for, or when, because Justice has taken over the case and doesn't share regular updates with the CSB.
“What's fair to say is that our investigators still have not received documents about the near miss,” Sutherland said.
She also suggested that Exxon Mobil is facing pressure from members of Congress to push back against the CSB, but did not name any.
-
PHMSA Faces Lawsuit Over Michigan Pipeline Impacts
Feb 24, 2016 | BNA Daily Environment Report
By Bebe Raupe
If the environmental impacts of oil pipelines traversing Michigan aren't disclosed, the National Wildlife Federation said it will sue the agency responsible for authorizing them.
In a notice of intent to sue letter dated Feb. 22, the federation said the Pipeline and Hazardous Materials Safety Administration has no authority to authorize oil transport through pipelines that run through the Straits of Mackinac and navigable waters in Michigan's Upper and Lower peninsulas.
Moreover, the group said the agency incorrectly authorized the oil transport pipelines on land without assessing the environmental effects, including the impact on endangered and threatened species, such as the piping plover and Kirtland's warbler.
The NWF said the agency violated the National Environmental Policy Act, the Endangered Species Act and the Oil Pollution Act of 1990.
Within 60 days, the conservation group wants PHMSA to comply with federal law by fully assessing, in consultation with the U.S. Fish and Wildlife Service, and publicly disclosing the environmental impacts of the terrestrial sections of the Lakehead Pipelines owned by Enbridge Energy, known as Line 5.
Oil Spill Prevention
In addition, the NWF wants PHMSA to revoke its approval of oil spill response plans for the sections of Line 5 where it runs beneath the Straits of Mackinac and other navigable waters in Michigan's Upper and Lower peninsulas on its pathway from Superior, Wis., to Sarnia, Ontario.
By law, pipeline operators can transport oil only if they have oil spill response plans that are approved by the authorized federal official or agency, according to the letter.
PHMSA violated each of the three federal laws cited in approving Enbridge Energy's oil spill response plans for Line 5, the letter said, most notably the Oil Pollution Act of 1990, which strictly authorizes the secretary of the U.S. Department of Transportation to approve oil spill response plans for pipelines running in, on, or under inland navigable waters.
Mike Shriberg, the NWF's Great Lakes regional executive director, said in a prepared statement that the action is needed to protect the area from an oil disaster.
Michigan Had Major Oil Disaster
“Michigan is home to the largest inland oil disaster in U.S. history, and we need to make sure that we never experience that again,” Shriberg said. Enbridge Energy was responsible for the 2010 oil disaster near Marshall, Mich., he said, which dumped more than 800,000 gallons of oil into the Kalamazoo River (143 DEN A-7, 7/28/10).
PHMSA didn't respond to Bloomberg BNA's request Feb. 23 for comment on the letter.
-
Foxx Appoints New PHMSA Deputy Administrator
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
Transportation Secretary Anthony Foxx announced the appointment Feb. 22 of John Drake as the new deputy administrator for the Pipeline and Hazardous Materials Safety Administration, an agency spokeswoman told Bloomberg BNA Feb. 23 in an e-mail.
Drake most recently served as deputy assistant secretary for transportation policy at the Transportation Department, focusing on freight, surface reauthorization and safety policy, according to a PHMSA spokeswoman. Drake also has served as the director of government affairs at the Federal Motor Carrier Safety Administration and as staff on related issues on Capitol Hill.
The announcement is the latest in a number of personnel shifts at PHMSA since the departure of former PHMSA Administrator Cynthia Quarterman. Some of the individuals who recently served in the deputy role include now-administrator Marie Therese Dominguez and Timothy Butters, who was acting administrator following Quarterman's departure.
Specifically, Drake has served as professional staff for the Senate Committee on Commerce, Science and Transportation and the House Committee on Transportation and Infrastructure on Capitol Hill. He previously worked as a legislative assistant for two Democratic congressmen, Rep. Jim Costa (Calif.) and former Rep. Peter Deutsch (D-Fla.).
-
SAFE PIPES Act Would Cost $50 Million from 2017-2021: CBO
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
The Senate pipeline safety reauthorization bill would cost $50 million over the course of five years, the Congressional Budget Office said in its cost estimate released today.
The SAFE PIPES Act (S. 2276) would require $525 million in appropriations from 2017 to 2021 for the Pipeline and Hazardous Materials Safety Administration's pipeline safety functions, it said. The bill would generate $462 million in fees from pipeline owners and $17 million in revenue from new underground natural gas storage facility assessments.
The Senate Commerce, Science and Transportation Committee passed the SAFE PIPES Act on Dec. 9. The bill would lower maximum funding levels for pipeline safety programs and aim to allow PHMSA time to address leftover mandates from its 2012 pipeline safety authorization law (Pub. L. No. 112–90), which lapsed Sept. 30.
-
Coast Guard Withdraws Fracking Wastewater-by-Barge Plan
Feb 24, 2016 | BNA Daily Environment Report
By Rachel Leven
The Coast Guard formally rescinded in a Federal Register notice published Feb. 23 its 2013 policy proposal delineating chemical analyses, radiation surveys and other protections needed to move fracking wastewater in bulk by barge. Bloomberg BNA reported Feb. 16 that the policy would be rescinded.
In its notice published Feb. 23 the Guard states that while it will continue to consider industry requests on a case-by-case basis, it is withdrawing the 2013 proposal in part because it hadn't received significant interest from industry to conduct this type of transport. More than 70,000 comments were submitted on the proposal, only 21 of which urged finalization of the proposal, the notice said.
The issue of moving shale gas extraction waste water in bulk garnered attention from the Coast Guard as horizontal drilling and hydraulic fracturing—known as fracking—became common oil and gas production methods in northern Appalachia. The policy was intended to protect workers and the public from radioactive isotopes in wastewater from the Marcellus shale formation.
Thousands Express Concerns
The Coast Guard addressed a number of concerns in its notice, including more than 68,000 comments submitted by the public that relayed concerns regarding this type of transport's impact on drinking water. The agency noted that while it appreciated the public's “general concerns,” these comments didn't offer substantive comments on the policy and that the agency “has no legal authority to permit, prohibit, or place conditions on the practice of fracking itself.”
The Guard disputed comments that said a rulemaking, rather than policy guidance, would ensure the safest transport method is used, and that its proposal wouldn't effectively protect barge workers. It also highlighted commenters' concerns that the proposal failed to adequately establish cleanup and liability requirements—a step the Coast Guard said was outside the scope of its proposal—and should have conducted more of an environmental analysis.
“The Coast Guard notes the concerns raised in these comments and will carefully consider the environmental impacts of each request to ship SGEWW [fracking wastewater] by barge on a case-by-case basis under existing regulations,” the Feb. 23 notice said.
The Guard will consider whether rules need to be updated and what environmental impacts are associated with this type of transport, the notice said. While an attorney who formerly worked for the oil and gas barge industry told Bloomberg BNA the week of Feb. 15 this policy could present opportunities for industry, an environmental group representative said he would consider suing over the agency's decision (33 DEN A-13, 2/19/16)(33 DEN A-13, 2/19/16).
-
Feb 23, 2016 | Oil & Gas 360
The U.S. Chamber of Commerce today, along with a coalition including officials from 27 states and more than 150 other organizations representing a wide range of the American economy, presented opening arguments in the D.C. Circuit against the EPA’s power plant rule associated with the Clean Power Plan.
Two weeks ago, the U.S. Supreme Court granted a stay request from the U.S. Chamber and others preventing EPA from moving forward with its rule until the conclusion of judicial proceedings. Earlier, the D.C. Circuit denied the motion for stay and granted the motion for expedited briefing, setting oral argument for June 2, 2016. However, on Feb. 9, 2016, the U.S. Supreme Court granted a stay of the rule that will remain in force through the period of judicial review.
The case first will be heard by the U.S. Court of Appeals for the District of Columbia Circuit. Today’s brief argues that the Rule unlawfully attempts to radically transform the electric sector and usurp states’ traditional authority over the electric grid.
The U.S. Chamber is the lead petitioner in a coalition of 16 national trade associations challenging the final power plant regulations. The Chamber has been joined in its lawsuit by the National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.
In this case, the U.S. Chamber and its coalition partners are represented by Peter D. Keisler, Roger R. Martella, Jr., C. Frederick Beckner III, and Ryan C. Morris of Sidley Austin LLP.
Case documentation may be read here.
Important disclosures: The information provided herein is believed to be reliable; however, EnerCom, Inc. makes no representation or warranty as to its completeness or accuracy. EnerCom’s conclusions are based upon information gathered from sources deemed to be reliable. This note is not intended as an offer or solicitation for the purchase or sale of any security or financial instrument of any company mentioned in this note. This note was prepared for general circulation and does not provide investment recommendations specific to individual investors. All readers of the note must make their own investment decisions based upon their specific investment objectives and financial situation utilizing their own financial advisors as they deem necessary. Investors should consider a company’s entire financial and operational structure in making any investment decisions. Past performance of any company discussed in this note should not be taken as an indication or guarantee of future results. EnerCom is a multi-disciplined management consulting services firm that regularly intends to seek business, or currently may be undertaking business, with companies covered on Oil & Gas 360®, and thereby seeks to receive compensation from these companies for its services. In addition, EnerCom, or its principals or employees, may have an economic interest in any of these companies. As a result, readers of EnerCom’s Oil & Gas 360® should be aware that the firm may have a conflict of interest that could affect the objectivity of this note. EnerCom, or its principals or employees, may have an economic interest in any of the companies covered in this report or on Oil & Gas 360®. As a result, readers of EnerCom’s reports or Oil & Gas 360® should be aware that the firm may have a conflict of interest that could affect the objectivity of this report.
-
EPA Extends Deadline For 'Minor' NSR Drilling Rule
Feb 23, 2016 | InsideEPA
EPA is extending from March 2 to Oct. 3 the deadline for oil and gas drilling sites on tribal land that are classed as “true minor sources” of air pollution to comply with EPA's Clean Air Act new source review (NSR) permit rule for the sites, pending release of an upcoming federal plan that would make individual NSR permits unnecessary.
In a direct final rule slated for publication in the Feb. 24 Federal Register, EPA says the extension will give it more time to finalize its proposed federal implementation plan (FIP) that will govern such permitting.
Minor sources are those emitting fewer than 100 tons per year (tpy) or 250 tpy of air pollution, depending on the pollutant. “True” minor sources are those with the potential to emit below these thresholds by design, while “synthetic” sources could emit above these thresholds but are restricted by their permit terms from exceeding these limits.
EPA's Sept. 18 proposed FIP would apply uniform federal emissions standards to such sources, making it unnecessary for these sources to seek individual permits for specific drilling sites.
In the direct final rule, EPA says it “believes that the extension of the March 2, 2016, deadline in today’s final rule is necessary to avoid imposing an unnecessary regulatory burden on these sources pending the EPA taking final action on the proposed FIP. In the absence of the extension, new and modified true minor sources in the oil and natural gas sector would need to obtain source-specific permits, thereby incurring a significant and potentially unnecessary burden.”
The FIP would satisfy the minor source permitting requirement under the Federal Indian Country Minor NSR rule, by requiring “streamlined” compliance with “emission limitations and other requirements from certain federal emission standards as written at the time of construction or modification for a range of equipment and processes present at oil and natural gas production facilities.”
Unless EPA has delegated permitting functions to a tribal authority, the agency is responsible for permitting decisions in federally-designated Indian Country, including drilling sites on tribal land.
“If the EPA finalizes the FIP before October 3, 2016, then we would have in place by October 3, 2016, a streamlined permitting option in the form of a FIP for new and modified oil and natural gas minor sources that want to construct or modify in Indian country,” the agency says in its notice.
-
Unlikely Battle Over Fracking Intensifies in Florida
Feb 23, 2016 | The New York Times
By Lizette Alvarez
With geology akin to a wet sponge and fragile underground aquifers that supply almost all its drinking water, Florida has never been considered part of the agitated battle over fracking as a technology for extracting oil and gas.
But that began to change two years ago when a Texas-based oil and gas company was found to have been using hydraulic fracturing, known as fracking, and matrix acidizing, a fracking-like method that dissolves rocks with acid instead of fracturing them with pressurized liquid. Neither residents nor local governments knew about it because well stimulation, the catch-all term for both techniques, does not require a separate permit and is not regulated.
The result has been an unlikely battle over fracking in Florida that is picking up steam across the state. The discovery outraged local government officials and environmentalists, who said they were worried about the effects of toxic chemicals and acids on Florida’s soil and water. Nearly 80 counties and cities have passed ordinances to ban or oppose the methods, in part because of their dissatisfaction with the State Legislature’s proposals.
Now, a bill to try to regulate fracking is dividing the Legislature. Environmentalists and some local officials have sharply criticized the measure, saying that it would fail to regulate matrix acidizing, the technology most likely to be used in Florida, and that it would stop local governments from banning fracking. The bill also would revoke any local bans. The House has passed the bill, and the Senate is considering it.
“There is a certain amount of despair and disbelief” over the legislation, said Penny Taylor, a commissioner in Collier County, which is home to Naples on the gulf coast. “At this point, the concern is spreading statewide, and it does appear that counties where there may not even be oil are very concerned about fracking.”
Local officials said they were angry about being overruled by state lawmakers in Tallahassee, an increasingly common move by the Republican-dominated Legislature when it is displeased with local decisions. “I think the last couple of years we have had some of the biggest assaults on home rule that we’ve ever seen,” said Marni Sawicki, the mayor of Cape Coral.
Such strong local opposition has led to bipartisan misgivings in the State Senate, where a few prominent Republicans have broken ranks and publicly criticized fracking. “Fracking isn’t the way,” State Senator Anitere Flores of Miami, a conservative Republican who sits on the Appropriations Committee, posted on Twitter. The committee is the bill’s final hurdle to the Senate floor.
Even the powerful chairman of that committee has had qualms about the bill. He recently delayed a hearing on the legislation, saying he wanted to learn more about the fracking technologies directly from officials at the state’s environmental protection agency. The hearing is expected to take place this week.
“We want credible, scientific responses to questions, not special-interest responses,” State Senator Tom Lee, the chairman, said.
In the House, lawmakers in support of the bill said local governments and environmentalists were misconstruing facts and exaggerating the potential consequences of the measure, which would regulate fracking for the first time. They said the bans were illegal because counties and cities have little authority to regulate oil and gas drilling, other than as zoning and land-use issues.Still, to allay their concerns, the authors of the measure said they tweaked it to, among other things, require oil companies to notify local governments when they intend to use fracking. Most of the state’s oil and gas drilling, which is modest compared with major oil-producing states, takes place in Florida’s panhandle and in the southwest, on the edge of the western Everglades.
“The environmentalists claim that we are taking control from local government on this matter,” said State Representative Ray Rodrigues, the Fort Myers Republican who introduced the House bill. “You can’t take something away if you don’t have it in the first place.”
Mr. Rodrigues said the bill took other precautions as well. It calls for a moratorium on “high pressure stimulation” — hydraulic or acid fracking, but not matrix acidizing, which does not create cracks but helps enhance the process — until state environmental regulators complete a peer-reviewed study. The study would look at how the extraction methods could affect Florida’s geology and its underground water supply. Regulators would then complete the rules and forward them to lawmakers for their approval.
Dave R. Mica, the executive director of the Florida Petroleum Council, said acidization was not included in the bill because it was an offshoot of a common, well-accepted technique used to clean wells and should not be subjected to more regulation.
“It is regulated, and we have used it for decades and decades,” Mr. Mica said.
Mr. Rodrigues agreed that a study was needed before moving forward because the state’s porous geology raises concerns that toxic chemicals could more easily penetrate groundwater.
Studies from other states with different geology simply do not apply to Florida, experts said. Environmentalists are also concerned that the acids and chemicals used in matrix acidizing could further dissolve delicate limestone formations that protect the aquifers.
“I think it would be foolish to ban a practice without any scientific evidence,” Mr. Rodrigues said. “For those who oppose the practice, they should support the study. And if the study proves their belief, then it’s acceptable to ban this practice.”
But environmentalists and local officials said the legislation was seriously undermined by the fact that matrix acidizing was left out of the study and the regulations, leaving it to continue unabated. They want lawmakers to include acidizing in the bill but carve out an exception for the form used to clean wells.
“We feel that we couldn’t have a bill that would address a technique we likely won’t use in our state and not address a technique we likely will use,” said Jennifer Hecker, a policy director for the Conservancy of Southwest Florida, an environmental group.
Anthony R. Ingraffea, an authority on fracking at Cornell University, said that because the bill did not include rules for all forms of well stimulation, it would do little to help Floridians. He said the legislation appeared to be a “smoke screen” to eliminate local control of fracking.
Mr. Mica, of the petroleum council, said environmentalists were trying to put up barriers to any well-stimulation technologies and would prefer to let local governments ban them. “Environmentalists should just say, ‘We don’t want oil and gas,’ ” he said.
-
EPA Draft Says Oil & Gas Methane Emissions Are 27 Percent Higher than Earlier Estimates
Feb 23, 2016 | Environmental Defense Fund
By David Lyon
Methane emissions from the oil and gas industry are significantly higher than previous official estimates, according to draft revisions of the U.S. greenhouse gas emissions inventory released Monday by the Environmental Protection Agency. At 9.3 million metric tons, revised estimates of 2013 emissions are 27% percent higher than the previous tally. Over a 20-year timeframe, those emissions have the same climate impact as over 200 coal-fired power plants. The lost gas is worth $1.4 billion at 2015 prices.
The big jump makes it crystal clear that there can be no more excuses for ignoring this huge challenge – not only controlling methane emissions from future sources, as proposed new EPA rules will do, but also controlling emissions from the tens of thousands of leaking facilities already operating now. Existing systems account for all of today’s emissions, and will generate the lion’s share of pollution for many years to come, yet federal rules so far don’t apply to them.
EPA is expected to use similar calculations to estimate 2014 emissions when it publishes the final inventory sometime between now and April 15. EPA also plans to update estimates of previous years’ emissions going back to 1990 based on revised methodologies.
The new estimate drastically exceeds modest improvements in several subsectors in prior years, which have been widely touted by industry lobbyists who oppose new rules and claim voluntary emissions reductions can get the job done.
The revised figure is based on new, more accurate accounting methods reflecting the significant improvement in scientists’ understanding of the problem in recent years. While the new figures still do not encompass the full scope of the industry’s methane footprint (see below), they paint a more thorough portrait of real world conditions. Although major gaps remain, EPA deserves credit for their efforts.
What Changed and Why?
As U.S. oil and natural gas production have soared, scientists have made great strides in their understanding of the industry’s methane emissions. EPA is updating its accounting methods to begin incorporating the latest scientific evidence by more accurately reflecting both the number and type of sources in the field, and the amounts of methane they emit.
The largest leap in emissions (and second biggest percentage jump) is in the production and gathering sector. That’s because EPA is increasing their estimates of equipment counts at well pads and factoring in emissions from thousands of gathering facilities that collect gas from multiple wellheads, which had been almost completely ignored in earlier accounting. As it turns out, they’re emitting as much as 1.7 million metric tons of methane a year, almost none of which showed up on the books until now.The biggest percentage increase is in the oil sector (petroleum systems), due to increased estimates of equipment counts at oil production sites.
Based on current research, EPA is also estimating that emissions from several segments are actually lower than previously thought. As proposed, the new figures for transmission and storage show a marked decrease (but this excludes “superemitters” – the widespread, unpredictable leaks, malfunctions or other problems – responsible for a significant share of industry emissions).
Local gas distribution also reflects progress on controlling emissions due mainly to improved technology and better operating practices on the part of local utilities, but estimates undercount emissions associated with industrial meters, and may not fully account for the number of leaks in the nation’s vast network of distribution pipes.
Until now, EPA had been relying mostly on data from the 1990s – before the start of the shale boom – to derive national emission estimates. Methane is the main ingredient in natural gas, and also a major byproduct of oil and gas production. It’s important because methane has 84 times the warming power of carbon dioxide over a 20-year timeframe.
EPA is continuing to refine their calculations and emphasizes that the numbers in the draft will likely change between now and the final version, based on stakeholder feedback on a series of detailed technical memos published by the agency. This is the fourth time in recent years that EPA has revised their accounting methods in order to get closer to the actual facts on the ground.
Emissions EPA Still Leaves Out
Over the past five years, academic and industry researchers have made extensive efforts to develop a better sense of what’s leaking where, how much, and why, and to create a better census of operating equipment. Some of that research is included in EPA’s new accounting methods, but not all. A recent study of methane in Texas’ Barnett Shale, for example, found oil and gas methane emissions could be 90% higher than estimates based on the GHG Inventory, in part because inventories often don’t count super emitters.
Case in point: the recent Aliso Canyon disaster in California released nearly 100,000 tons of methane, but operators aren’t required to report that type of pollution to regulators – nor is there a method for EPA to consider these emissions in their official estimates. Aliso Canyon is the “mother” of all super emitters, but research shows similar problems happening on a smaller scale every day throughout the supply chain.
In fact, the science suggests overall U.S. methane emissions from all sources are likely anywhere from 25- to 75% higher than EPA estimates. It is likely that a sizeable chunk of that discrepancy results from the widespread problem of super emitters and underestimated equipment counts in the oil and gas industry.
Big Step Forward
While critical gaps remain in accounting for all oil and gas methane emissions in the EPA inventory, this new draft represents important progress. The dramatic figures make it more clear than ever that the time to regulate existing sources – the sources responsible for this 9.3 million ton problem – is now.
-
Congress Seeks To Influence Litigation
Feb 23, 2016 | E&E News PM
By Amanda Reilly
Running out of options on Capitol Hill, Republican lawmakers today expressed hope of influencing court action on U.S. EPA's Clean Power Plan.
More than 200 members joined a friend-of-the-court brief asking the U.S. Court of Appeals for the District of Columbia Circuit to eliminate the program for reducing carbon dioxide emissions from power plants.
The lawmakers argued the agency sought to "usurp" their own role by moving forward with the Clean Power Plan when Congress had rejected a cap-and-trade regime also meant to reduce industrial carbon emissions (Greenwire, Feb. 23).
"Congress refused to implement a cap-and-trade system, so the president is in essence going around Congress with a regulation," Sen. John Hoeven (R-N.D.) said in an interview.
All but one of the 34 senators who joined the brief were Republican. Sen. Joe Manchin of West Virginia was the only Senate Democrat to cross party lines and sign on.
Hoeven said the president's vetoes of Senate and House resolutions to kill the Clean Power Plan "clearly" showed that Obama was usurping Congress.
"We included bills to defund it, we've passed legislation to rescind it, but of course the president's vetoed it," Hoeven said. "And so he's clearly going around the will of Congress."
Sen. John Thune (R-S.D.), who also joined the brief, today called the Clean Power Plan a "backdoor national energy tax."
"The EPA has overstepped its legal authority," Thune said in a statement, "and now it's time for the D.C. Circuit Court of Appeals to end the uncertainty and significant impact this rule would have on family budgets and our overall economy."
Tennessee Sen. Lamar Alexander, a moderate Republican who joined the brief, said he hoped the document had some influence on the courts, "but you never know."
The future of litigation is up in the air with the recent death of Justice Antonin Scalia, the high court's most vocal conservative member.
Alexander, one of four Senate Republicans to form a working group last year on climate and energy, said he supported the goal of cutting carbon emissions. The Clean Power Plan, he said, went too far.
"I'm very much pro-nuclear and energy," he said. "I'd like to reduce carbon intelligently by using renewable sources like nuclear and things like that that replace coal, but you just can't ban stuff altogether or go as far as the administration's trying to go."
Several moderate GOP senators, however, did not join the friends-of-the-court brief, including Sens. Mark Kirk of Illinois, Kelly Ayotte of New Hampshire and Rob Portman of Ohio. All three are vulnerable incumbents facing tough re-election races.
Kirk today would not answer questions on whether he supports the Supreme Court blocking the Clean Power Plan pending further proceedings.
Another moderate who did not join the brief, Sen. Susan Collins (R-Maine), today expressed support for the EPA program in an interview.
"While I have some concerns about the Clean Power Plan, particularly in the fact that it's very confusing when it comes to biomass," Collins said in an interview, "I support the right of the EPA to regulate coal-fired power plants."
-
Petitioners Seek Slower Track in Power Plan Lawsuits
Feb 24, 2016 | BNA Daily Environment Report
By Andrew Childers
While the Environmental Protection Agency's Clean Power Plan has already been stayed by the U.S. Supreme Court and appellate judges have scheduled an expedited briefing schedule, petitioners are seeking a slower track for lawsuits challenging the carbon dioxide standards for new and modified power plants (North Dakota v. EPA, D.C. Cir., No. 15-1381, responses filed 2/22/16).
In responses filed with the U.S. Court of Appeals for the District of Columbia Circuit on Feb. 22, states and industry groups challenging the EPA's carbon dioxide new source performance standards (RIN 2060-AQ91) for new and modified power plants issued under Section 111(b) of the Clean Air Act asked the court to set a slower paced briefing schedule that would not see the case argued until 2017. They argued the slower pace is warranted because of the significant resources being directed toward challenges to the EPA's Clean Power Plan issued under Section 111(d), which sets similar carbon dioxide limits for existing power plants, and which will be argued before the D.C. Circuit June 2.
The rule is being challenged by 25 states as well as several utilities, unions and other industry groups. Jointly, 24 states said in their response that the additional time is necessary for the coordination necessary between all of the parties in the litigation.
“The 24 states, which have a strong interest in both these consolidated cases and in the Section 111(d) case, face unique challenges in simultaneously briefing and preparing for oral argument in both,” they said. “These challenges include preparing for both cases with limited staff and resources, as well as the internal review and approval processes within state government.”
The petitioners are asking that the court set a deadline of July 15 for the opening briefs in the litigation with an EPA response due by Sept. 28. Petitioners' reply briefs would be due by Nov. 9 with final briefs from all parties filed by Dec. 5.
North Dakota, which has said it intends to file its own briefs addressing issues separate from the other states, also asked the court for a slower briefing schedule.
EPA Seeks Faster Track
The EPA in its own proposed briefing schedule asked the D.C. Circuit for a quicker review of its performance standards. The EPA's proposed schedule would have opening briefs from petitioners filed April 1 with the agency's response due by June 15. Petitioners' reply briefs would be due by July 6 with all final briefs filed by July 20.
Under the EPA's proposal, the D.C. Circuit could hear oral argument in the lawsuit before the end of the year, allowing for a quicker resolution.
“Given the great public interest in these two related rules, as well as the desirability from a regulatory perspective of having all judicial challenges to these two rules resolved in as efficient and coordinated a fashion as possible, EPA respectfully urges the court to schedule this case for oral argument as soon as is feasible in the court's fall term,” the EPA said.
-
Energy Efficiency Gets Key Role in Obama's Climate Plan
Feb 24, 2016 | BNA Daily Environment Report
By Rebecca Kern
While energy-efficiency standards have been around for decades, they have just recently started gaining a higher profile as a solution to reduce carbon emissions under the Obama administration's climate action plan.
Energy-efficiency standards set requirements to reduce the amount of energy that appliances and equipment use, which leads to reductions of carbon emissions as well as savings for consumers who end up using less electricity to operate the products.
The Obama administration has fully embraced energy-efficiency standards as a win/win for the environment and consumer savings. The White House says that since President Barack Obama took office in January 2009, the administration has finalized 40 standards and saved consumers $543 billion on their electricity bills.
In 2013, the administration said it wanted to slash carbon pollution by 3 billion metric tons cumulatively by 2030 solely through implementing energy-efficiency standards. It has reached reductions of 2.5 billion metric tons of carbon pollution through a combination of appliance standards and building efficiency codes.
“We expect to be very, very, very close to 3 billion” by the end of the administration, Kathleen Hogan, the Energy Department's deputy assistant secretary for energy efficiency, told Bloomberg BNA.
Saving Money and Avoiding Carbon
“This administration has been very supportive of energy efficiency broadly,” Hogan said. “That's really a helpful goal because energy efficiency can save people money.”
In 2015, the Energy Department updated eight final energy-efficiency standards. Among them was a rule for large commercial air conditioners and furnaces, the largest energy-savings standard in history, saving the equivalent of 75 percent of U.S. household annual energy use. The standard is expected to avoid 77 million metric tons of carbon dioxide emissions through 2030 and save consumers $22.1 billion in energy costs (243 DEN A-5, 12/18/15).
“This administration has been more aggressive than anybody in the last 40 years in implementing energy-efficiency regulations,” Stephen Yurek, president and chief executive officer of the Air Conditioning, Heating and Refrigeration Institute (AHRI), which represents the air conditioning and refrigeration manufacturers, told Bloomberg BNA.
And the administration isn't slowing down. Hogan said the Energy Department is working on an additional 13 rulemakings for this year, including a standard on residential gas furnaces, which is being negotiated by energy efficiency and manufacturer groups outside of the agency (218 DEN A-14, 11/12/15).
“This administration has given energy-efficiency standards their rightful place as a major element of a strategy to reduce energy costs and reduce emissions.”
—Andrew deLaski, executive director of the Appliance Standards Awareness Project
Making Efficiency Sexy
Hogan said energy efficiency played a behind-the-scenes role in the past.
“Energy efficiency suffers from the issue that it isn't as sexy as some of the other clean energy technologies. So talking about what it really can do for people—saving them money, giving them more money available in their discretionary income so they can really put it to work for businesses and families— is a great thing,” Hogan said.
Andrew deLaski, executive director of the Appliance Standards Awareness Project, which advocates for federal efficiency standards, also said standards are finally getting their due. “This administration has given energy-efficiency standards their rightful place as a major element of a strategy to reduce energy costs and reduce emissions,” he told Bloomberg BNA.
He said he was pleased that Obama was “singing the praises of the unsung heros” in promoting energy efficiency. “I think it's really starting to get the attention it needs and the credit it deserves,” he added.
AHRI's Yurek said there is extra weight on the role standards play after the U.S. Supreme Court issued a stay Feb. 9 on the Clean Power Plan, which could halt state action in developing implementation plans to meet stricter emissions standards (27 DEN A-1, 2/10/16).
Efficiency regulations are “the only cornerstone remaining of the president's climate action plan after the decision made by the Supreme Court to stay the Clean Power Plan portion of it,” he said.
Building Consensus
What also has helped advance energy efficiency is the administration's Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC), created in 2012 with the goal of building better consensus among different stakeholder groups in the standards-setting process.
Hogan said the committee is “a great way for us to engage with the relevant stakeholders and to get really robust dialogue and technical information to inform these rulemakings.”
She said the committee helps the agency overcome one of the greatest challenges to successful rulemaking—engaging with industry and the public to improve the proposals.
Kyle Pitsor, the National Electric Manufacturers Association's vice president for government relations, said the committee can help speed up rulemaking.
“Even if the groups participating in the negotiated rulemaking process don't reach consensus on all the points discussed, the quality of the analysis is significantly better and the regulations are completed in a shorter time frame than the typical DOE process,” he told Bloomberg BNA.
Likewise, Lauren Urbanek, National Resources Defense Council's senior energy policy advocate, has been pleased with the consensus building process.
She told Bloomberg BNA that while it is not always easy, “there has been a really good track record of manufacturers, advocates and DOE coming together talking through some of these standards, really getting to an understanding of wanting to get possible outcome for everyone involved.”
Committee membership includes at least one Energy Department official as well as members from energy-efficiency advocacy groups, appliance and commercial equipment companies and associations, utilities and consumer groups. The committee has nearly a dozen working groups currently focused on negotiating rulemakings for products rules ranging from residential air conditioning and heat pumps to fans and blowers.
Of the 40 rulemakings finalized under this presidency, 10 have gone through the ASRAC process since 2012, Hogan said.
“As you get to the higher efficiency, costs both for the equipment itself and the installing of that equipment raise exponentially.”
—Stephen Yurek, president and chief executive officer, Air Conditioning, Heating and Refrigeration Institute
Backlog Gone
Under the Energy Policy and Conservation Act of 1975 and then the National Appliance Energy Conservation Act of 1987, the Energy Department is required to review and decide whether to issue a proposed energy-efficiency standard every six years, with a final rule due every eight years. Following several congressional updates, the act now covers more than 50 appliances that constitute 90 percent of household energy use.
During the Clinton and Bush administrations, the Energy Department fell behind on its statutory review of the standards. When Obama took office, the department had a backlog.
Following a 2006 lawsuit, the Energy Department agreed to update 22 efficiency standards, 16 of which were carried over to the Obama administration and finalized by the 2011 court-ordered deadline.
“We've addressed all of those rulemakings, and we are up-to-date with meeting these statutory rulemakings,” Hogan said.
Challenge of Benefits Outweighing Costs
The increased number of standards issued by the Obama administration and the accelerated adoption timeline of standards compared to previous administrations means a lot of work for manufacturers to update their equipment to be in compliance.
“As you get to the higher efficiency, costs both for the equipment itself and the installing of that equipment raise exponentially until we're getting towards that part of the curve where a little bit of energy savings cost much more than it used to,” AHRI's Yurek said.
“We had significant savings at relatively low costs in prior rulemakings, but we're starting to get to the end of that ability, and we're not only seeing it in our products,” he said.
Since the Energy Department has to decide whether to issue a rule every six years, “you're constantly going through these rulemakings which are a high cost and take a lot of time for everybody,” he added.
Similarly, John Caskey, the National Electrical Manufacturers Association vice president of operations and the industry group's representative on the ASRAC, told Bloomberg BNA, “After one or two rulemakings on a particular covered product, most of the cost-effective, efficiency improvements for that product have already been implemented.”
Looking Toward Systems-Wide Approach
As a solution to the increasing costs, both industry groups are looking toward a systems-wide or building-wide approach, instead of just focusing on improving the efficiency of specific products.
“For example, the energy savings from installing an occupancy sensor and turning off unneeded lighting are orders-of-magnitude higher than a marginal increase in the efficiency of a particular light source,” Caskey said.
Yurek said, “In the long run, we need to move to something that looks broader, be it systems or homes or commercial buildings in total to really get energy savings. A lot of times the actual energy from an individual product is how it's applied, and right now the [Energy Policy and Conservation Act] doesn't get at that.”
AHRI and other industry groups have talked with the Energy Department and Congress about making changes to the law dictating the efficiency standards requirements.
Yurek predicts that without changes to the law, the DOE, manufacturers and advocates are going to spend time on rulemakings in which “the benefits are going to be smaller and smaller, but more costly.”
“Efficiency standards have a long history of being bipartisan and something that both sides can get behind because they make sense for consumers, they make sense for manufacturers, and they're something that has real true results.”
—Lauren Urbanek, senior energy policy advocate, Natural Resources Defense Council
Future Under New Administration
Regardless of what the regulatory framework looks like in the future, experts say efficiency standards don't fall along party lines.
“Efficiency standards have a long history of being bipartisan and something that both sides can get behind because they make sense for consumers, they make sense for manufacturers, and they're something that has real true results,” Urbanek said. “We think this is a program that will be beneficial regardless of who's in the White House.”
In fact, deLaski said, “There's been a lot of Republican support for standards over the years from some pretty conservative members of the Republican party.” The original acts were signed into law by Republican presidents Gerald Ford and Ronald Reagan. Then, updates to these laws were signed by Republican presidents George H.W. Bush and George W. Bush.
“The next administration will have to pick up the baton and continue the work because by no means is the job done,” deLaski said. “It's not done because there's always the next round of innovation to leads to new energy saving opportunities.”
-
Critics Offer Procedural Claims If ESPS Overcomes 'Core' Legal Challenges
Feb 23, 2016 | InsideEPA
By Lee Logan
State and industry opponents are offering a host of “procedural” arguments that they hope will help kill EPA's greenhouse gas standards for existing power plants in the event the rule overcomes their “core” legal claims, including charges that the final rule violates administrative law because it is “radically” different than the proposed rule and that the agency has not shown its targets are “achievable.”
Because of such defects, the regulation is “fatally flawed,” opponents say in their opening merits brief filed late Feb. 19, even if EPA successfully counters arguments in critics' separate brief of “core” legal issues that it lacks Clean Air Act authority “to fundamentally transform the sector through 'generation shifting' and to regulate the activity of owners and operators of sources rather than the sources themselves.”
Both briefs were filed to the U.S. Court of Appeals for the District of Columbia Circuit jointly by a coalition of 27 states or state agencies -- led by West Virginia -- and a wide variety of utility, coal and business associations. After briefing in the suit, West Virginia, et al., v. EPA, et al., concludes April 22, the court will hear oral argument June 2 and perhaps June 3.
States' and industry's “procedural and record-based” claims also include that EPA's existing source performance standards (ESPS) rule arbitrarily penalized some forms of zero-emitting resources like existing renewables and nuclear plants, and that EPA did not consider “particular” harms to certain states.
A chief criticism in the procedural brief is that the final rule is so vastly different from the proposed version that the public was not given a “meaningful” opportunity to comment -- a key component of administrative rulemaking.
“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 charges, adding that the final rule's “core regulatory requirements bear little resemblance to the proposal.”
A key difference is the final rule's creation of national emission standards for coal and gas plants, instead of individualized goals for each state.
Under the final rule, EPA based those standards on the use of three “building blocks” -- plant-level efficiency, substituting coal power with greater use of existing gas plants, and substituting fossil generation with zero-emitting power such as renewables.
The proposed rule included different versions of those building blocks, and had also included a fourth element, GHG cuts tied to end-use energy efficiency.
The proposal applied the blocks to each state's generation mix in the 2012 baseline year, creating a unique limit for each state.
Final Rule
But the final rule applied the blocks to the power grid at a regional level, with EPA selecting the least stringent regional rate to serve as the national rate for coal or gas. Thus, each state's target differs only in the proportion of coal and gas power it had in the baseline.
“Every other element of the Rule flows from these two performance rates,” the critics say. “Yet neither rate, nor even the concept of such a rate, was noticed in the Proposed Rule. In fact, EPA clearly stated that it had rejected the option of setting uniform rates” in the proposed ESPS.
Opponents also charge that EPA crafted an “entirely new” method for calculating GHG targets, and that it “included emissions trading as an integral part of the Rule,” whereas trading was simply a compliance option listed in the proposal.
They argue that those major changes violate section 307 of the Clean Air Act, which requires the agency the outline the data it used to develop the proposal, its major legal interpretations and other issues.
“The very purpose of this requirement is to give the public a meaningful opportunity to comment. Here, EPA pulled the ultimate 'surprise switcheroo,' . . . rendering any comment opportunity illusory,” the opponents say, citing a 2005 D.C. Circuit ruling in Environmental Integrity Project v. EPA that vacated an agency air monitoring rule because it was not a “logical outgrowth” of the proposal.
State and industry opponents also charge that EPA has not shown its targets are “achievable” and the measures used to set the targets are “adequately demonstrated,” as required under section 111.
Opponents argue that EPA “bears an enormous burden” on this issue, and that the agency must show that its “best system of emission reduction” (BSER) -- the formula used to craft targets -- “will work.”
“EPA has not carried its burden here,” the brief says. “It has not shown the three Building Blocks are adequately demonstrated or achievable. It has failed to reasonably assess the substantial new transmission the Rule effectively requires. It has not shown individual sources can achieve its performance rates through application of the BSER. And it illegally requires sources and States to rely on an inadequately demonstrated emissions trading program to achieve compliance with its emission guidelines and State plan requirements.”
The brief questions EPA's assumptions about GHG cuts that plants can achieve from improved heat rates under block 1, the potential for existing gas plants to run more often to displace coal power under block 2, and the projected levels of new renewables that can be deployed under block 3.
In particular, the opponents fault the renewables projections, which “are based on unsupported, unrealistic assumptions about future growth.” Both the agency's baseline renewables estimate and the amount it believes would be spurred by the rule are “significantly greater” than projections from the Energy Department's Energy Information Administration, the brief notes.
Further, EPA “failed to assess any of the real world considerations associated with such massive growth, including where the new generating resources will be built, who will build them, and how will they be integrated into the existing electrical grids.”
The agency also failed to fully consider the amount of new transmission infrastructure that would be required and “failed to show that its system of alternative electric generation will be reliable -- in other words, that the lights won't go out,” critics argue.
Following numerous critical comments about reliability, “EPA largely brushed off these comments,” crafting a “reliability safety valve” that “does not address the problem, as it provides only temporary relief for catastrophic events like floods and offers States no flexibility to adjust either the emission requirements or the schedule to address reliability problems.”
Moreover, EPA cannot rely on the “presumed availability” of an emissions trading program to show its targets are achievable, critics' brief says, noting that such a showing can only rely on actions that are part of the BSER formula.
Zero-Emission Sources
The rule's opponents also charge that it is “hypocrisy” for EPA to argue that its system is based on the whole grid when it “ignores large parts of that grid,” by excluding existing renewable facilities, nuclear plants and other low- or zero-emission sources from compliance.
“All are critical to the electric supply system and to reducing the demand for electricity from fossil fuels. EPA arbitrarily excludes them as compliance options,” the brief says.
Opponents also fault the final rule's provisions that seek to limit emission “leakage” to new gas plants, arguing those provisions “must be vacated, as EPA has no authority under section 111(d) to require that States prevent the increased dispatch of new units.”
They also fault EPA's use of the administration's social cost of carbon (SCC) estimates in the rule's cost-benefit analysis, citing critiques of the estimates from the Interior Department, the National Academy of Sciences and some academics. Further, the SCC's assessment of global benefits cannot be used to measure the benefits of a domestic regulation, they argue. Finally, the opponents charge that EPA failed to consider the “unique harm” that some states will face, citing specific concerns from Arizona, New Jersey, North Carolina, Utah, Wisconsin and Wyoming.
-
Maryland Sets Bolder Target For Cutting Greenhouse Gas Emissions
Feb 23, 2016 | The Washington Post
By Ovetta Wiggins
A bill to accelerate Maryland’s efforts to reduce greenhouse gas emissions sailed through the state Senate on Tuesday and was hailed by environmentalists as one of the nation’s strongest state requirements for tackling carbon pollution.
The Senate voted 38 to 8 to cut greenhouse gas emissions to 40 percent below 2006 levels by 2030.
The bill reauthorizes and sets new targets for the Greenhouse Gas Reduction Act, a landmark bill passed in 2009 that required Maryland to slash greenhouse gas emissions to 25 percent below 2006 levels by 2020. That requirement will end in December if the General Assembly does not pass a new bill.
“This bill is not only important, it’s urgent,” Sen. Jamie B. Raskin (D-Montgomery) said after voting in favor of the measure.
The legislation heads to the House for consideration.
“This vote sends a resounding message that climate action is a bipartisan, economic and health imperative in the state of Maryland,” said Mike Tidwell, director of the Chesapeake Climate Action Network, which fought for the 2009 bill and worked with lawmakers on this year’s measure.
Environmentalists said Tuesday that California and New York are the only states with stronger emission-cutting requirements. Last year, California Gov. Jerry Brown (D) signed an executive order for the state to act to drop its greenhouse gas emissions 40 percent below 1990 levels by the year 2030.
While there was a contentious battle over the version of the bill that Maryland passed in 2009, Tidwell said, this year’s version was approved with relative ease.
“I believe what you are seeing in Maryland and to a lesser degree in Virginia — two states whose coastlines are being so traumatized by sea-level rise — that it is bringing the business community and, increasingly, Republican leaders to support climate-change solutions that were previously beyond their orthodoxy,” Tidwell said.
He credited Sen. Paul G. Pinsky (D-Prince George’s), a member of a state climate-change panel, and Ben Grumbles, secretary of the state Department of the Environment, with building bipartisian support for the legislation.
The state’s Commission on Climate Change, which Grumbles chaired, was made up of legislators, representatives of labor groups, businesses and environmental organizations. It suggested the new target after reviewing the impact of the 2009 law.
The Department of the Environment said the state is on track to meet its 25 percent goal by 2020 and is likely exceed it. The reduction in greenhouse gas emissions, according to the state, is largely due to increased reliance on natural gas, which burns cleaner than coal, and coordinated efforts to reduce driving by encouraging telecommuting, mass transit and other options.
The department also said the state could create about 30,000 jobs as it works toward the new goal, largely through growth in the renewable-energy sector and by protecting industries that could be harmed by climate change, such as agriculture and tourism.
“This is a job creator,” Sen. James C. Rosapepe (D-Prince George’s) said on the floor on Tuesday.
Five of the Senate’s 13 Republicans voted for the bill, along with 33 Democrats. Sen. Richard S. Madaleno Jr. (D-Montgomery) did not record a vote. Several of the Republicans who voted against the bill said they were doing so because they oppose mandates.
Pinsky countered that climate change can lead to expensive problems if it goes unchecked, noting that one of the few times the New York City subway system has shut down was during Hurricane Sandy.
“Do we want to pay for this on the back end, or do we do the paying now?” Pinsky asked before the vote was taken. “The commission and the committee felt the time is now.”
-
States Ask Supreme Court To Block Mercury Rule, Citing Stay Of Carbon Rule
Feb 23, 2016 | PoliticoPro
By Alex Guillén
A coalition of states opposed to EPA’s mercury rule asked the Supreme Court today to block the rule, arguing that the high court’s recent unprecedented stay of the Clean Power Plan means the justices should put their foot down in this case as well.
The Supreme Court said last summer that EPA should have considered compliance costs when it first decided to regulate mercury from power plants. The challengers argue that that ruling could be “thwarted” if the rule is allowed to remain in effect while EPA fixes the issue, as the D.C. Circuit Court of Appeals has allowed.
Since the foundation of the rule was deemed in error, the entire rule must go, and a stay would give EPA’s foes time to argue that, the states say.
“A stay is even more warranted here, after this Court has reviewed EPA's finding authorizing the Mercury Rule and has found it to be unlawful and in excess of EPA's authority under the” Clean Air Act, they wrote to Chief Justice John Roberts, who handles such requests from the D.C. Circuit.
Obtaining a stay may prove difficult.
The death of Justice Antonin Scalia, who authored the mercury opinion last year against EPA, means the high court is now split 4-4 on the issue. And the Supreme Court left the fate of the rule up to a lower court rather than tossing it out themselves.
Earthjustice attorney James Pew blasted the stay request as "premature and wrongheaded.
-
200 Lawmakers Say EPA Carbon Plan Oversteps Authority
Feb 24, 2016 | BNA Daily Environment Report
By Andrew Childers
Congress never authorized the Environmental Protection Agency to transform the U.S. power sector in the way envisioned by the Clean Power Plan, 34 senators and 171 representatives said in an amicus brief filed Feb. 23 (West Virginia v. EPA, D.C. Cir., No. 15-1363, amicus briefs filed 2/23/16).
Arguing the Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the power sector in each state, should be vacated, the members of Congress said the EPA's rule far exceeds the agency's authority under the Clean Air Act.
“EPA can point to no statement of congressional authorization for the final rule's central features, precisely because there is none,” they wrote in the brief filed in the U.S. Court of Appeals for the District of Columbia Circuit.
The amicus brief is joined by Senate Majority Leader Mitch McConnell (R-Ky.); Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee; Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee; House Speaker Paul Ryan (R-Wis.); House Majority Leader Kevin McCarthy (R-Calif.); and House Majority Whip Steve Scalise (R-La.). Also joining are Republican presidential candidates Sen. Ted Cruz (R-Texas) and Marco Rubio (R-Fla.) as well as coal state Sen. Joe Manchin (D-W.Va.).
“This case involves a new regulation where the agency fails to ‘conform' to clear congressional instructions and is seeking to usurp the role of Congress to establish climate and energy policy for the nation,” the lawmakers said.
Litigation over the Clean Power Plan continues, but the Supreme Court on Feb. 9 took the unusual step of staying the rule.
The amicus brief cited an opinion by the late Supreme Court Justice Antonin Scalia that warned the EPA against seeking new powers to regulate vast swaths of the economy from existing statutes (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2014 BL 172973, 78 ERC 1585 (2014)).
States, utilities and other industries opposed to the Clean Power Plan frequently cited the same opinion in opening briefs filed Feb. 22 (35 DEN A-16, 2/23/16).
“In reality, if Congress desired to give EPA sweeping authority to transform the nation's electricity sector, Congress would have provided for that unprecedented power in detailed legislation,” they said.
Power Plants Already Regulated
The members of Congress also argue the EPA's Clean Power Plan violates the plain text of the Clean Air Act, which was amended in 1990 to prevent duplicative regulation of industrial sources under both Sections 112 and 111(d).
Conflicting amendments to Section 111(d) were both signed into law in 1990. The House language would prevent the EPA from regulating industrial sources under Section 111(d) if they are already subject to toxic pollutant standards under Section 112, as power plants are. The Senate's language only bars the agency from regulating the same pollutants under both sections of the act. While both amendments are reflected in the statutes at large, only the House language appears in the U.S. Code.
“EPA seeks to avoid the Section 112 exclusion, both as written by Congress and as articulated by the Supreme Court, in two ways: first, by effectively rewriting Section 111(d), and second, by relying on an inexecutable remnant of statutory language that was properly excluded from the U.S. Code when the 1990 amendments to the CAA were codified in 1992,” the members of Congress said. “Both infringe upon the legislative powers of Congress and must be rejected.”
The members of Congress argue the Supreme Court already endorsed the Section 112 exclusion in a 2011 decision that held the EPA's authority to regulate greenhouse gases under the Clean Air Act preempts common law complaints brought by states (Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2011 BL 161239, 72 ERC 1609 (2011)).
Ginsburg Footnote Highlighted
In a footnote to that opinion, Justice Ruth Bader Ginsburg said the “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program … or the ‘hazardous air pollutants' program, [Section 112].”
Although the Supreme Court in American Electric Power Co. v. Connecticut specifically cited the EPA's authority to regulate industrial sources under Section 111 as one of the factors preempting common law claims, the members of Congress also argue that decision prohibits the EPA from issuing carbon dioxide standards for power plants under Section 111(d) because the agency's mercury and air toxics standards already regulate power plants under Section 112.
“While it is true that, in 2011, the Supreme Court acknowledged EPA's ability to regulate power plants under Section 111(d) … EPA effectively surrendered such authority when it issued the MATS Rule in 2012—a rule promulgated under Section 112 that remains in effect today,” they said.” In other words, because EPA chose to promulgate the MATS Rule (thereby regulating coal-fired power plants under Section 112), EPA cannot rely on Section 111(d) as the source of its authority for the final rule.”
-
20 States Ask Justices To Halt Embattled Mercury Rule
Feb 24, 2016 | E&E Daily News
By Robin Bravender
On the heels of the Supreme Court freezing one major U.S. EPA rule curbing power plant emissions, state challengers are pushing the justices to block another.
A coalition of 20 states yesterday asked Supreme Court Chief Justice John Roberts to stay an Obama administration rule cutting power plants' mercury emissions. The justices last year found that rule illegal, saying EPA had failed to properly consider costs, and they sent it back to a federal appeals court for further action.
The U.S. Court of Appeals for the District of Columbia Circuit in December rejected pleas to toss out the rule, deciding instead to send it back to EPA so the agency could tweak its cost analysis in light of the Supreme Court's 5-4 decision (Greenwire, Dec. 15, 2015).
EPA's Mercury and Air Toxics Standards, or MATS, has been ridiculed by states, industries and Republican lawmakers. Senate Majority Leader Mitch McConnell (R-Ky.) hailed the Supreme Court's rejection of the rule last year as a "cutting rebuke to the administration's callous attitude" about the impacts of its regulations.
If the high court doesn't block the rule now, the justices' decision in the mercury case "will be thwarted," the states warned in their petition yesterday. "Because this court's ruling means that EPA never acquired authority to impose this rule, this court should stay the unauthorized rule" pending a petition to the court asking that the rule be vacated in its entirety.
The states appear to have been emboldened by the justices' surprise decision earlier this month to step in and block the administration's Clean Power Plan, a rule to curb utilities' greenhouse gas emissions. Many lawyers speculated that the court's 5-4 decision to block that rule would spur a flood of similar requests to the high court.
In their request that Roberts block the mercury rule, the states pointed to the stay of the Clean Power Plan. "Just two weeks ago this Court correctly granted a stay of an EPA rule ... before the rule had undergone judicial review, presumably because this court recognized that there was a strong likelihood that the rule was likely to be held to be unlawful and in excess of the agency's authority under the Clean Air Act."
A stay is "even more warranted here, after this Court has reviewed EPA's finding authorizing the Mercury Rule and has found it to be unlawful and in excess of EPA's authority under that same Act," the petition added.
The state challengers are Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming.
The states' request was sent to Roberts, who handles such applications for decisions made by the D.C. Circuit. He can unilaterally decide how to handle the issue or refer it to the full court for a decision. In the case of the Clean Power Plan, all nine justices weighed in.
If Roberts were to act alone, parties could later appeal his decision to the court's other justices.
The death of Justice Antonin Scalia earlier this month could hurt states' chances of getting a stay from the Supreme Court. The conservative justice penned the majority decision rejecting the mercury rule, and was also the fifth vote to stay the Clean Power Plan. Only eight justices are on the bench for at least the near term, so if the court's liberal wing were to oppose the stay, the conservative branch wouldn't be able to get the fifth vote needed to secure a majority of the full court.
The rule, issued by EPA in December 2011, requires coal-burning power plants to reduce emissions of mercury, lead, arsenic and other hazardous air pollutants. Coal plants are the country's largest emitters of mercury, and EPA said the standards would prevent 11,000 premature deaths a year and yield up to $90 billion in health benefits. The rule was expected to cost $9.6 billion per year.
Earthjustice attorney James Pew called the states' stay request "premature and wrongheaded." He also said, "The Supreme Court chose not to stop the rule but, instead, to require EPA to explain it. The agency should be given a chance to comply with the Supreme Court's order." He added, "EPA's limits on toxic pollution from electric power plants in the Mercury and Air Toxics rule are already saving thousands of lives every year."
-
Lawmakers: Congress Has Not Given EPA Power To Enact Climate Rule
Feb 23, 2016 | The Hill - E2 Wire
By Devin Henry
Lawmakers opposed to President Obama’s climate rule for power plants told a federal court Tuesday that Congress has not given the Environmental Protection Agency (EPA) the authority to institute the rule.
In an amicus brief supporting a lawsuit against the power plant rule, more than 200 lawmakers contended that the EPA is overstepping its bounds with the Clean Power Plan and trying to implement a rule more wide-ranging than previous Congresses ever intended.“This case involves a new regulation where the agency fails to ‘conform’ to clear congressional instructions and is seeking to usurp the role of Congress to establish climate and energy policy for the nation,” wrote the lawmakers, led by Senate Majority Leader Mitch McConnell (R-Ky.), Sen. Jim Inhofe (R-Okla.) and Reps. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.).
In their brief, which supports lawsuits against the rule from several states and utilities, lawmakers repeated many of their long-held arguments against the Clean Power Plan, saying the EPA cannot regulate power plant emissions under the section of the law it is citing and that it has no power to impose the rule on states.
The preamble to their argument against the rule is a decision from the late Supreme Court Justice Antonin Scalia, who joined the court’s four other conservative members earlier this month in issuing a stay against the rule. The opinion cited in the brief looks to outline the powers environmental regulators have in light of what lawmakers had previously passed.
Congress, the members wrote, “has not authorized EPA to make the central policy choices in the final rule and, in many respects, has affirmatively rejected those policies, as it certainly did with respect to cap-and-trade programs for [carbon dioxide] emissions from power plants.”
Legal briefs supporting or opposing the power plant rule are due to the Court of Appeals for the District of Columbia Circuit on Tuesday. Last week, the plan’s chief opponents, a team of state attorneys general, called the rule a “breathtaking expansion” of the federal government’s power.
Oral arguments are set for June.
-
States Ask Supreme Court To Block EPA Air Pollution Rule
Feb 23, 2016 | The Hill - E2 Wire
By Timothy Cama
Twenty conservative states want the Supreme Court to block the Obama administration from enforcing an air pollution rule for power plants.
Emboldened by the high court’s decision earlier this month to block another contentious Environmental Protection Agency (EPA) regulation, the states, led by Michigan, asked the Supreme Court Tuesday to stop the rule on mercury and other toxic pollutants after the U.S. Court of Appeals for the District of Columbia Circuit refused.The Supreme Court ruled last year that the Obama administration should have completed a cost-benefit analysis before it even started the regulatory process for the mercury and air toxics (MATS) standards.
But that decision did not overturn the rule, and the circuit court said in December that the EPA can continue to enforce it despite the loss at the Supreme Court.
The rule is one of the most controversial and expensive regulations created during President Obama’s tenure and has caused coal-fired power plants to shut down. While the Supreme Court decision was a major loss for the administration, the rule’s enforcement had already begun, and the lower court gave the administration a huge win by letting it continue enforcement.
“Unless this court stays or enjoins further operation of the Mercury and Air Toxics rule, this court’s recent decision in Michigan v. EPA will be thwarted,” the states wrote in their Tuesday filing.
“A stay or injunction is appropriate because this court has already held that the finding on which the rule rests in unlawful and beyond EPA’s statutory authority.”
They called the EPA’s actions “an unmistakable example of agency overreach: an executive agency strayed far beyond the limited authority the legislative branch gave it, and then, which this court corrected the agency’s error, EPA requested on remand that the unauthorized, unlawful regulation should be left in place to have the force of law.”
The EPA is working to fix the regulation by retroactively writing a cost-benefit analysis. It already completed such an analysis as a later step in the regulatory process, and it’s planning to apply that now.
Administration lawyers said the fix will be done by April 16.
Earthjustice, a law firm that serves environmentalists, slammed the states’ motion Tuesday.
“The states’ move is premature and wrongheaded,” James Pew, an attorney with the group, said in a statement.
“The Supreme Court chose not to stop the rule but, instead, to require EPA to explain it. The agency should be given a chance to comply with the Supreme Court’s order.”
-
Manufacturing Groups Dissent on EPA Ozone Regulation
Feb 24, 2016 | BNA Daily Environment Report
By William H. Carlile
Groups representing national and Arizona manufacturing interests laid out Feb. 23 the negative economic impacts they say the Environmental Protection Agency will inflict upon Western states as a result of its new federal ozone standards of 70 parts per billion.
Representatives of the National Association of Manufacturers and the Arizona Chamber of Commerce and Industry said that under the EPA's rule (RIN 2060-AP38) revising the national ambient air quality standards for ozone from 75 ppb to 70 ppb, counties in Arizona and other Western states will be forced into nonattainment status. This is largely because of background ozone issues, such as wildfires and air pollution originating from outside the states’ borders and beyond their control, they said.
That, in turn, will cause significant harm to Arizona's economy, they said, imposing higher costs on small businesses and stifling economic growth.
“The new ozone regulation is making it harder for manufacturers to compete,” said Ross Eisenberg, NAM's vice president, energy and resources policy.
His comments and others were made during a conference call, which was a preview of opinions the groups are expected to outline at a two-day workshop beginning Feb. 24 in Phoenix. The EPA is running the workshop to gather information on issues associated with background ozone.
The EPA released the final rule in October 2015, which updated the ozone standards that were set in 2008 under former President George W. Bush (191 DEN A-1, 10/2/15).
A 70 ppb standard is the least stringent level within the range of 65 ppb to 70 ppb that was proposed by the agency in November 2014 (229 DEN A-1, 11/28/14).
‘Difficult to Comply.'
Eisenberg said the new ground level ozone regulation poses “a substantial threat” to the economic recovery that has taken place since the great recession, with the addition of some 900,000 new jobs nationwide. This, Eisenberg said, comes at a time when Arizona has made significant progress on its own toward lower ground ozone levels.
As an alternative, the EPA should allow manufacturers to meet the ozone rule that was set in 2008 and has yet to be fully implemented, before moving the target upward.
Garrick Taylor, ACI's senior vice president of government relations and communications, said the 70 ppb standard will hurt the state's economy.
“It is going to be extremely difficult to comply with this new lower standard. It will push the majority of Arizona's nine counties into nonattainment,” he said.
He said the standard affects the bulk of the state's population, about 93 percent, in an area with about 3 million jobs. A sizable majority of the state's population is made up of small businesses.
“We want to meet the standard, but the ability to do so is out of the state's control” because of the background ozone issue, Taylor said. Arizona will be “unfairly punished” if the EPA fails to take that background ozone into account.
Another participant on the call, Ray Keating, chief economist for the Center for Regulatory Solutions, said that in the manufacturing sector alone, 73 percent of employer firms in the state have fewer than 20 workers.
The EPA is “regulating ahead of the science on background ozone ... Clearly, Western states are losers here, and obviously the businesses operating in those states are hit hard,” Keating said. “Effectively, it would be a federal cap on economic development including small business job growth in the state.”
-
Science Panel Chairman Questions EPA Air Official's Travel
Feb 24, 2016 | BNA Daily Environment Report
By Anthony Adragna
Rep. Lamar Smith (R-Texas), chairman of the House Science, Space and Technology Committee, questioned Feb. 23 whether weekly airplane commuting by the Environmental Protection Agency's top air official, Janet McCabe, is consistent with the administration's goals of reducing carbon pollution.
“McCabe's routine travel raises significant questions as to her commitment toward furthering the reduction of carbon emissions that she promotes in her official capacity on the taxpayer's dime,” Smith wrote in a letter to EPA Administrator Gina McCarthy.
Smith, who has consistently opposed all Obama administration efforts to address climate change, asked the agency to provide by March 8 records associated with McCabe's travel since 2012, all policies related to official travel and a list of all employees who routinely commute by aircraft.
A spokeswoman for the Democratic minority on the committee slammed the questions as outside the committee's jurisdiction and questioned if it was “an appropriate use of investigative powers.”
“This continues the Majority's trend of investigating any and everything at EPA, rather than focusing on the [research and development] activities within our jurisdiction,” the spokeswoman told Bloomberg BNA. “As with all of these requests, we wonder how much time and money EPA has to spend to respond to this request. We would also like to know what the Chairman plans to do with the information once he receives it.”
In response, a Republican committee aide said the science panel has “shared jurisdiction over environmental and scientific programs such as the Clean Power Plan and other programs aimed at reducing carbon emissions” and said Smith would “determine appropriate next steps” after receiving information from the EPA.
EPA Defends McCabe
The EPA told Bloomberg BNA that McCabe, acting assistant administrator for air and radiation, pays for all personal travel and remains “fully committed to upholding the mission of the agency and serving our country.”
Smith has requested voluminous amounts of documents from federal agencies, including communications about the EPA's final ozone standards, internal records about a National Oceanic and Atmospheric Administration climate change study and even a subpoena on text message records from McCarthy (228 DEN A-8, 11/27/15).
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
Full Text of Stories Below
Add recipients
Suggested